State of New South Wales v Shane Patten (Final)

1. [1]

   On 18 September 2025, I made an interim order that the defendant, Shane Patten, be subject to an interim supervision order (“ISO”) for a period of 28 days commencing from 20 September 2025 pursuant to ss 10A, 10C(1) and 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”): State of New South Wales v Patten (Preliminary) [2025] NSWSC 1067. That ISO was renewed by Yehia J for periods of 28 days on 13 October 2025 and 14 November 2025. It is due to expire on 22 December 2025.

2. [2]

   The State of New South Wales (“the State”) now seeks final orders as set out in the amended summons filed on 8 December 2025, namely that the defendant be subject to an extended supervision order (“ESO”) for a period of three years pursuant to ss 5B and 9(1)(a) of the Act.

3. [3]

   The defendant is a 51-year-old Indigenous man with an extensive criminal history for violent offences commencing in 1989 when he was 14 years old. When he was 11 years old, he was involved in a motor vehicle accident and sustained a traumatic brain injury which may have impacted his personality and behaviour, although the extent to which it did so is the subject of dispute at the final hearing. On 20 September 2013, the defendant assaulted his then partner during an argument by striking her in the face with a hammer. The assault left the victim blind in one eye with significant permanent facial injuries. The defendant pleaded guilty to intentionally inflicting grievous bodily harm contrary to s 33 of the Crimes Act 1900 (NSW). On 7 November 2014, Garling DCJ sentenced him to a term of imprisonment of 12 years with a non-parole period of 9 years commencing on 21 September 2013. That sentence expired on 20 September 2025.

4. [4]

   The defendant was released on parole on 18 April 2023, but his parole was revoked after he was charged with further offences on 20 January 2025. Since the preliminary hearing before me, he was granted bail on 22 September 2025 in relation to these offences and is currently in the community subject to both his bail conditions and the conditions of the ISO. The pending charges are next listed for sentence at Batemans Bay Local Court on 19 January 2026.

5. [5]

   On 18 September 2025, I also made an order pursuant to s 7(4) of the Act appointing two qualified psychiatrists or registered psychologists to conduct separate examinations of the defendant and to furnish reports to the Court. Since that time, the two court appointed experts, Dr Sally McSwiggan, a clinical neuropsychologist, and Mr Patrick Sheehan, a forensic psychologist, have examined the defendant. They furnished their reports to the Court on 3 November 2025 and 7 November 2025 respectively. Both experts provided oral evidence at the hearing.

6. [6]

   The defendant opposed the imposition of an ESO. His alternative position was that if I did make an ESO, it should be for a shorter duration than the three years sought by the State. The defendant also opposed the imposition of conditions additional to those on the ISO and maintained his opposition to electronic monitoring.

7. [7]

   Before I turn to consider the supporting documentation put before the Court, it is necessary to first outline the relevant legislative scheme.

The legislative scheme

1. [8]

   The Act provides a statutory scheme outlining the legal test for the imposition of interim and final supervision orders. In my preliminary judgment, I outlined the relevant legislative scheme at [7]-[17] and I repeat that summary, as relevant, below.

2. [9]

   The primary object of the Act, as set out in s 3, is to provide for the extended supervision and continuing detention of high risk offenders to ensure the safety and protection of the community. Another object of the Act is to encourage such offenders to undertake rehabilitation.

3. [10]

   Section 5B of the Act provides that this Court may make an ESO if:

4. [11]

   A “serious offence” is defined in s 4 of the Act as either a “serious sex offence” or “a serious violence offence”. A “serious violence offence” is defined in s 5A(1) of the Act and includes, relevantly, conduct that causes grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, actual bodily harm to another person.

5. [12]

   Section 5I(1) of the Act provides that an application for an ESO may be made only in respect of a supervised offender, which is defined in s 5I(2)(a)(i) as an offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for a serious offence.

6. [13]

   Thus, the statutory requirements for making an ESO are, relevantly, that the offender is a serious violent offender as required by ss 5 and 5B of the Act; is a supervised offender (within the meaning of s 5I of the Act); and is still in custody or under supervision at the time the application is made. In addition, the Court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d).

7. [14]

   Section 6(1) of the Act provides that the application for an ESO may be made within nine months of the expiry of the defendant’s current custody or supervision.

8. [15]

   The Court’s power to make an ESO is discretionary. Section 9(1) of the Act provides that this Court may determine an application for an ESO by either making an ESO or dismissing the application. Subsections 9(2) and (3) of the Act provide a number of mandatory considerations to which the Court must have regard in determining whether or not to make an ESO as follows:

The supporting documentation

1. [16]

   The supporting documentation was tendered in accordance with s 6(3) of the Act, which provides that an application such as this must be supported by specified documentation that addresses the matters to which s 9(3) of the Act refers and must include a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious offences.

2. [17]

   At the final hearing, the State relied on the following supporting material:

   1. (1)

      Four affidavits of Catherine Moore, the solicitor with carriage of the matter at the Crown Solicitor’s Office, sworn on 11 June 2025 (with Exhibit “CM-1”), 30 July 2025, 1 September 2025, and 17 November 2025 (with annexures);

   2. (2)

      Affidavit of Kelli Grabham affirmed on 29 November 2025;

   3. (3)

      Report of Dr Sally McSwiggan dated 3 November 2025;

   4. (4)

      Report of Patrick Sheehan dated 7 November 2025;

   5. (5)

      Risk Assessment Report (“RAR”) prepared by Samuel Ardasinski dated 6 March 2025; and

   6. (6)

      Risk Management Report (“RMR”) prepared by Danny Velebit, a Community Corrections Officer, dated 20 March 2025.

3. [18]

   The State also relied on a Statement of Case dated 11 June 2025, a Schedule of Proposed Conditions and a Chronology, in addition to its submissions.

4. [19]

   Exhibit CM-1 to the affidavit of Catherine Moore of 11 June 2025 included the defendant’s criminal and custodial history and copies of the RAR and the RMR. With respect to the index offences, it included a letter from the defendant to “Julie”, the transcript of an ERISP with the defendant, the agreed facts on sentence, and the Remarks on Sentence by Garling DCJ on 7 November 2014. With respect to other offences, it included court attendance notices, facts sheets, and sentencing remarks. The exhibit also included documents from Corrective Services NSW (“CSNSW”), parole material, and Offender Integrated Management System (“OIMS”) case notes.

5. [20]

   Annexures to Catherine Moore’s affidavits of 30 July, 1 September and 17 November 2025 included further OIMS case notes, the defendant’s Criminal History Bail Report dated 14 November 2025, and the court attendance notices and facts sheet in relation to the defendant’s further charges in January 2025.

6. [21]

   The victim of the defendant’s index offending, Ms Marlene Dunn, prepared a statement dated 14 November 2025 and read it to the Court at the hearing pursuant to s 21A of the Act. In it she stated, inter alia:

7. [22]

   It is to be noted that the defendant and his partner Mary Moore (“Ms Moore”), who appeared at the hearing by way of audio-visual link, elected to dial out and not be “present” for the reading of Ms Dunn’s statement.

8. [23]

   The defendant relied on the following affidavits:

   1. (1)

      The affidavit of Mary Moore sworn 4 December 2025; and

   2. (2)

      The affidavit of Tracy Reynolds affirmed 5 December 2025.

9. [24]

   The parties also handed up a Joint Statement of Agreed Facts and Issues at the final hearing signed by the solicitor for both the State and the defendant, filed pursuant to Practice Note SC CL 12. These agreed facts are substantially similar to those relied on in the preliminary hearing with the addition of a summary of the reports of Dr McSwiggan and Mr Sheehan and further OIMS notes. I have placed particular weight on the Agreed Facts and the expert reports, the contents of which I will address under headings corresponding with the s 9 mandatory considerations. Before addressing those factors, I will briefly set out some background material.

10. [25]

    The background and factual circumstances relevant to this matter have been set out in some detail in my previous judgment and are largely taken from the Agreed Facts. Although that background is unchanged, I will repeat it here.

11. [26]

    The defendant was born in Moruya NSW on 1 August 1974. Following his motor vehicle accident in 1986, he left school in Year 9. He has a limited work history. When he is not in custody, he is supported by government benefits including the Disability Support Pension. The defendant has had a number of relationships, including three significant ones. He has eight children to five different women, only some of whom he has contact with.

12. [27]

    The defendant has a lengthy history of substance abuse. On his most recent entry into custody, he admitted that he is a binge drinker and regularly uses cannabis. He commenced habitual alcohol abuse in his early teens and commenced regular cannabis use from around the age of 13. The defendant’s past offending has been related to his use of alcohol, including the index offending.

13. [28]

    Since being released on bail on 22 September 2025, the defendant resides in Narooma, in the South Coast area of NSW, with his partner Ms Moore and her daughter. He has family in that area, some of whom exhibit anti-social behaviour. On the positive side, his relationship with Ms Moore appears to be a stabilising influence on him. She appeared with him at the hearing via audio-visual link. I will return to his current domestic arrangements when I turn to consider the conditions to be attached to the ESO.

14. [29]

    On 20 September 2013, the defendant committed the index offence; namely, one count of causing grievous bodily harm with intent contrary to s 33 of the Crimes Act. That offence carries a maximum penalty of 25 years’ imprisonment.

15. [30]

    The defendant had been drinking at his home with the victim. At that time, the victim had been his domestic partner of approximately two years. From approximately 10:00pm, they were joined by the victim’s cousin who later fell sleep. During the evening, the defendant and the victim began to argue. The victim suggested that the defendant reside elsewhere for a few days to give them both a break. The victim’s cousin woke to the defendant telling him to call an ambulance. The victim’s cousin went outside and found the victim lying face down. The defendant was standing next to the victim, holding a hammer in one hand and a metal bar in the other. The victim had blood pouring from her face, and her eye had been ripped out and was hanging out.

16. [31]

    In the morning of 21 September 2013, the defendant handed himself into police. In an interview with police, he stated that after the victim had told him to leave, he saw the hammer, grabbed it, and hit her with it once. The defendant stated he had hit her with the “hammer bit” not the “claw bit”. It was accepted by Garling DCJ on sentence that there were at least two blows involved, which was the opinion of an expert.

17. [32]

    The victim sustained extremely serious and life-threatening injuries. These included the loss of her eye (requiring replacement with a prosthetic eye), facial paralysis and multiple facial fractures. Other long-term injuries included scarring, facial nerve paralysis, cosmetic deformity, drooping muscles and loss of multiple teeth. At the time of sentence, it was considered possible that she would lose vision in her other eye due to “sympathetic ophthalmitis”.

18. [33]

    On 7 November 2014, following a plea of guilty, Garling DCJ sentenced the defendant to a term of imprisonment of 12 years with a non-parole period of 9 years commencing on 21 September 2013.

19. [34]

    It is noted that there is an active Apprehended Domestic Violence Order (“ADVO”) naming Mr Patten for the protection of the victim with no end date made pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Section 9(3) factors

1. [35]

   I repeat the summary of the defendant’s criminal history from the Agreed Facts I extracted in my previous judgment as follows.

2. [36]

   The defendant had an extensive criminal history prior to the commission of his index offence. He has convictions for serious violence offences, serious sexual offences, dishonesty matters and numerous traffic offences.

3. [37]

   The summary of the defendant’s criminal history (not including his index offending) is set out below in chronological order as it is recorded in the AgreedFacts:

   1. (1)

      Assault (juvenile): On 18 August 1989, the defendant and an associate approached the victim, who was walking to his car with his nine-year-old brother. The defendant and his associate challenged the victim to a fight. When the victim refused, the defendant punched him in the face. The victim suffered bruising. On 12 October 1989, the defendant was sentenced to 12 months’ probation with good behaviour.

   2. (2)

      Assault (juvenile): On 21 January 1990, the defendant and two associates approached the victim and attempted to start a fight by spitting on him, shoving him and pulling his hair. The defendant then kicked the victim in the face, hit him in the face five times with an open hand, and then kicked him in the face a second time. On 15 November 1990, the defendant was fined.

   3. (3)

      Aggravated sexual assault: On 21 June 1992, the defendant, then aged 17, broke into the house of the victim (an 80-year-old woman) at night. He forced her arms behind her back, dragged her to her bed and engaged in sexual intercourse with her. The defendant was convicted following a trial and maintained his innocence at sentence. On 1 March 1993, the defendant was sentenced to a term of imprisonment of 5 years and 6 months, with a non-parole period of 3 years and 6 months. This offence is a serious sex offence under s 5(1)(a) of the Act.

   4. (4)

      Malicious wounding and assault: On 24 February 1996, the defendant was involved in an argument with the four victims in a car park. The defendant was holding a bottle which he broke and told the victims to “back off”. As the defendant swung the bottle, it connected with three of the four victims. He was charged with three counts of malicious wounding and one count of assault. On 11 June 1999, the defendant was sentenced to 3 years’ imprisonment, with a non-parole period of 18 months.

   5. (5)

      Assault occasioning actual bodily harm: On 17 January 1999, the defendant and the victim (the defendant’s then-partner) were at home and began to argue. The defendant punched the victim four times in the face and threw a highchair at her which hit her in the stomach. On 30 April 1999, the defendant was sentenced to 3 months’ imprisonment.

   6. (6)

      Aggravated indecent assault on victim under the age of 16 years: On 14 January 1999, the defendant and an associate entered a caravan park where the victim, an 8-year-old girl, was staying alone in a small tent next to her parents’ tent. The defendant and associate entered her tent and began to touch her legs and breasts but left when the victim began kicking them. On 30 April 1999, the defendant was sentenced to 12 months’ imprisonment. This is a serious sex offence within the definition in s 5(1)(a) of the Act.

   7. (7)

      Assault occasioning actual bodily harm: On 24 February 1999, the defendant was involved in an altercation with other players at a sports oval after being asked to stop swearing in the presence of children. The defendant left the oval and returned with a length of timber around 1.5 to 2 metres long. The defendant swung the timber “like an axe” and hit the victim on the head. The victim suffered a deep laceration to his forehead which exposed the skull. On 30 April 1999, the defendant was sentenced to 18 months’ imprisonment.

   8. (8)

      Maliciously wound person with intent to inflict grievous bodily harm: On 7 October 2001, the defendant approached the victim who was sitting with a friend at a hotel. As the victim and his friend left the hotel, the defendant approached them offering to fight, but was interrupted by security staff. The victim and his friend went to the fisherman’s wharf, where they were again approached by the defendant asking to fight, but the defendant was once again interrupted. The victim then went to his fishing boat. Later, the defendant appeared at the fishing boat and slashed the victim’s arm and face with a 30-centimetre knife in a “frenzied attack”. The victim sustained permanent damage to his arm. On 12 March 2002, the defendant was sentenced to 4 years and 6 months’ imprisonment, with a non-parole period of 3 years. This offence is a serious violence offence as defined in ss 5A(1)(a) and (2A)(c) of the Act.

   9. (9)

      Assault occasioning actual bodily harm: On 13 September 2002, the defendant was speaking with the victim in the yard at Goulburn Correctional Centre. The victim revealed that he was in gaol for sexually assaulting his daughter. The defendant became enraged and assaulted the victim by punching, kneeing and kicking him. The victim suffered a fractured arm. On 5 March 2003, the defendant was sentenced to 6 months’ imprisonment.

   10. (10)

       Stalk/intimidate with intent to cause fear of physical/mental harm: On 28 December 2006, the victim was at her partner’s house and was woken by a loud bang on the side of the unit. The victim had recently provided a witness statement to police in relation to a matter in which police charged the defendant and a co-accused. The defendant and co-accused hit the front door, causing a hole. They shouted insults at the victim and her partner and told her to watch out. On 11 October 2007, the defendant was fined $500 and sentenced to an 18 months’ bond with supervision.

   11. (11)

       Assault occasioning actual bodily harm, stalk/intimidate intend fear of physical/mental harm: On 25 February 2009, the victim was standing outside Bega Courthouse and noticed a car which he believed belonged to the defendant and his partner. The victim had previously asked the defendant and his partner to be alibi witnesses in his pending criminal trial. The victim tried to shield his face but heard the defendant shout at him from the car. The defendant got out of the car and ran across the road towards the victim, who attempted to re-enter Bega Courthouse. The defendant blocked his path and told the victim he felt like killing him and the only reason he didn’t “smash” him right now was because he didn’t want to go back to gaol. The defendant’s partner was shouting encouragement to “smash” the victim and said he should have killed the victim in gaol. The defendant pushed the victim, causing him to fall onto the concrete and hit his head, losing consciousness. On 27 February 2009, the defendant was sentenced to 8 months’ imprisonment with a non-parole period of 6 months.

   12. (12)

       Driving offences: On 16 September 2024, the defendant was charged with “learner not accompanied by driver/police officer/tester” and “drive with low range PCA – 1st off”. On 17 October 2024, he was fined $500 for each offence and was disqualified from driving for a period of three months.

   13. (13)

       Apprehended Domestic Violence Order: On 15 August 2024, a final ADVO was made for the protection of the defendant’s partner’s children for a period of two years (expiring in 2026) for sending threatening messages to the person in need of protection.

4. [38]

   The defendant was charged with several offences arising from an incident on 20 January 2025. These offences included: hinder or resist police officer in the execution of duty; assault police officer in execution of duty cause actual bodily harm; police pursuit (not stop drive recklessly); drive motor vehicle during disqualification period; and special category driver drive with special range PCA.

5. [39]

   The Police Facts allege that the defendant was driving a vehicle with two passengers, said to be his son and his seven-year-old granddaughter. The police pulled the defendant over for a random breath test. The defendant drove off as police approached the driver’s side door. After a period of pursuit, the defendant pulled over and police removed the defendant from the car. The defendant was allegedly resisting arrest and fell to the ground.

6. [40]

   It is alleged that the defendant was behaving in an erratic manner and headbutted a police officer on the bridge of his nose. Once the defendant was detained, the officer identified a further injury to his hand. The Police Facts state that the officer suffered a fractured hand and fractured nose and was conveyed to Moruya Hospital for treatment.

7. [41]

   At Batemans Bay Police Station, the defendant participated in a breath analysis which produced a result of 0.032 grams of alcohol in 210 litres of breath.

8. [42]

   In an OIMS intake screening note dated 23 January 2025, the defendant claimed he drove the car to take his granddaughter to get snacks because she had been “nagging” him. He stated that he was going to pull over for police but then decided to drive away. He claimed he submitted to arrest by police, putting his arms around his back to be cuffed, but they kept hitting him in the body and head, so he headbutted them.

9. [43]

   Since the preliminary hearing before me, the hinder or resist police officer charge has been withdrawn. The defendant has pleaded guilty to the remaining four offences. The defendant was released on bail on 22 September 2025 in relation to these pending charges. As stated above, they are next listed for mention at Batemans Bay Local Court on 19 January 2026 and a Sentencing Assessment Report has been ordered.

10. [44]

    When sentencing the defendant, Garling DCJ found that the offence fell above the midrange of objective seriousness for the type of offence. His Honour did not believe that the defendant could be rehabilitated.

11. [45]

    His Honour also declined to find that the defendant had exhibited any remorse. This was likely due to letters written by the defendant to “Julie”, his ex-partner, which were before the court. In the letters the defendant refers to the victim of the index offence as the “Cyclops” (she lost an eye due to his assault on her). He also states:

12. [46]

    I have had regard to the expert reports provided by Dr McSwiggan and Mr Patrick Sheehan. Summaries of those reports were included in the Agreed Facts, and I extract those summaries as relevant below. I will also address the oral evidence of both experts who the defendant required for cross-examination at the final hearing.

13. [47]

    Dr McSwiggan, a clinical neuropsychologist, assessed the defendant on 8 October 2025 by audio-visual link. She prepared a report dated 3 November 2025. She also provided a short supplementary report dated 17 November 2025 to clarify her opinions on the conditions to be imposed.

14. [48]

    As to the defendant’s attitudes towards the offending, Dr McSwiggan observed:

15. [49]

    Dr McSwiggan administered the following tests to conduct a neuropsychological assessment of the defendant:

    1. (1)

       Premorbid Intellectual Functioning Test: the defendant’s intellectual functioning was estimated in the average range of the “normative population” (sic).

    2. (2)

       WAIS-IV Test: the defendant’s general intellectual ability was in the low-average range. His cognitive domains were “not clinically unusual, meaning his pattern of scores were common in normal persons”. This includes the following scores:

16. [50]

    Dr McSwiggan opined that the defendant does not demonstrate that he sustained lasting cognitive impairment from the motor vehicle accident at age 11. Her opinion was that he sustained no more than a moderate brain injury at the time, just above a concussion. She stated that the defendant had:

17. [51]

    Dr McSwiggan stated that the defendant performed cognitively in the range expected of his background and that he has continued to be capable of learning beyond a primary school range, with no indicators of dysexecutive syndrome.

18. [52]

    In cross-examination, Dr McSwiggan maintained her opinion that the brain injury suffered by the defendant was not severe. She gave evidence that the fact that he continued education past the age of 11 years without any apparent difficulty suggests that his injuries were not as severe as they have been described.

19. [53]

    Dr McSwiggan opined that the defendant likely fulfils the diagnostic criteria for antisocial personality disorder (APD). One of the factors indicating this condition was identified as his “[d]eceitfulness, as indicated by repeated denials of sexual offending despite pleading guilty”. Dr McSwiggan also found that the defendant would meet the diagnostic criteria for substance use disorder (alcohol and cannabis) which is in controlled remission.

20. [54]

    Dr McSwiggan opined that these neurological conditions that she had identified would contribute to the defendant’s risk of violent offending, given a personality disorder is “a lifelong pattern of impulsive decisions and behaviours without proper consideration of consequences, limited empathy towards others and lack of due regard for societal norms”. Substance use (particularly alcohol) would contribute to impairing his judgement and increasing the likelihood of impulsive or reactive thoughts and behaviours.

21. [55]

    Dr McSwiggan opined that the defendant poses a risk of committing a further serious offence. While she was in agreement with the author of the RAR who assessed the defendant as posing a moderate risk of future violence, she noted that his risk level would likely be:

22. [56]

    Dr McSwiggan opined that an ESO could monitor and manage the defendant’s substance use and living circumstances in the community. However, she was concerned that he would breach an ESO in a short time (most likely the electronic monitoring, scheduling or use of alcohol conditions) given what she describes as his history of opposing authority and supervision. She was also concerned that the defendant would see the ESO as a source and justification for reactionary violence. She noted that an ESO will allow for early and swift removal from the community and recommended that little latitude should be given to the defendant should he engage in avoidance or resistance, such as not charging his electronic monitoring device.

23. [57]

    Dr McSwiggan opined that a period of three years would be a “reasonable period” to monitor the defendant’s stability in the community with close oversight of his circumstances. She also concluded that the conditions of the current ISO appeared to be sufficient and necessary to manage and monitor the defendant’s risk.

24. [58]

    Mr Sheehan, a forensic psychologist, assessed the defendant on 5 November 2025 by audio-visual link. He prepared a report dated 7 November 2025.

25. [59]

    In relation to the defendant’s claimed traumatic brain injury, Mr Sheehan noted that he was known to be “somewhat aggressive towards other children prior to the accident”, suggesting that the brain injury aggravated and disinhibited a pre-existing behaviour. Mr Sheehan opined that on balance, there is sufficient evidence for a diagnosis of Mild Neurocognitive Disorder (traumatic brain injury, with behavioural disturbance). Mr Sheehan noted that during the interview, the defendant was amenable to revisiting prescription medication to reduce his agitation and impulsivity.

26. [60]

    Mr Sheehan opined that the defendant has the type of agitation, hypervigilance and hyperarousal characteristic of Post-Traumatic Stress Disorder (PTSD), but that some of these features “cut across” his brain injury and personality variables, and he did not describe other requisite symptoms of PTSD. Mr Sheehan opined that the defendant meets the diagnosis of Polysubstance Use Disorder (mild), which is in early remission.

27. [61]

    Mr Sheehan further opined that the defendant has a history consistent with a diagnosis of antisocial personality disorder. While acknowledging Mr Ardasinski’s position that APD should not be diagnosed if other factors (including brain injury) can account for the symptoms, Mr Sheehan stated that while a brain injury very likely increased his aggression, recklessness and impulsivity, it cannot account for the presence of antisocial values evident in the defendant’s behaviour. Mr Sheehan noted that the defendant is at an age where antisocial features may lessen progressively, but that it is too early to identify the presence of the “maturation effect” at this stage.

28. [62]

    As to the defendant’s dynamic risk factors, Mr Sheehan noted the following using the Violence Risk Scale (VRS) assessment tool:

    1. (1)

       The defendant could be considered to have a violent lifestyle. While there is some evidence of attenuation over the years, some problems with interpersonal hostility persist, including becoming engaged in conflict, making threats, fighting in custody and allegedly assaulting a police officer. Mr Sheehan opined that the defendant has come to define himself through violence and shows excitability when talking about violence.

    2. (2)

       The defendant has attitudes which have facilitated violence. While he seems to have a genuine desire to move towards a prosocial lifestyle, there remains a gap between his intention and decision making at times.

    3. (3)

       The defendant does have some work ethic, but his suboptimal employment history likely reflects a struggle to meet the “interpersonal and planning demands of employment” and is undermined by his unstable characteristics.

    4. (4)

       Contact with criminal peers increases the defendant’s risk of violence through both destabilisation and as a source of violent conflict.

    5. (5)

       Interpersonal aggression has been a part of the defendant’s life since early development, using violence, intimidation and displays of anger to overcome insecurity, resolve problems and express emotion. The frequency of escalated aggression has diminished but he remains prone to falling into aggression, even if he has no plans to do so and is at odds with it.

    6. (6)

       Emotional “undercontrol” has been the primary feature of the defendant’s violence history with anger leading to reactive violence. He has worked on emotional regulation in the Violent Offenders Therapeutic Program (VOTP) but it remains a problem. Pharmacological avenues to assist with this are currently underutilised.

    7. (7)

       Institutional violence is significant, but could not be described as frequent and has reduced.

    8. (8)

       The defendant has a history of utilising weapons, but is most at risk of impulsively using objects that are close at hand when in a rage.

    9. (9)

       The defendant shows insight into his violent behaviour, gained through the VOTP. This insight may not be stable, which is further inferred by ongoing episodes of poor decision making.

    10. (10)

        There is no clear evidence of a diagnosed major mental illness, but his mild neurocognitive disorder has compromised the defendant’s affective regulation and judgment which, with impulsivity, are directly linked to his violence. These vulnerabilities remain evident.

    11. (11)

        Substance abuse remains a risk factor. The defendant was mostly successful at maintaining abstinence during his last period on parole, but he relapsed on several occasions and demonstrated poor judgment and an ongoing capacity to have his decisions led by transient emotions.

    12. (12)

        The defendant has a history of unstable relationships prone to conflict, with a history of domestic violence. He is vulnerable to reacting poorly in the event his partner rejects him.

    13. (13)

        The defendant has a reasonable level of community supports, although in the past has disengaged at key times.

    14. (14)

        For the defendant, living with a partner has the capacity to be a protective factor or a risk factor, and this may change quickly depending on highly changeable factors such as intoxication or conflict.

    15. (15)

        The defendant’s violence cycle broadly consists of poor self-regulation, substance abuse, interpersonal conflict, anger and reactive aggression. It may unfold very quickly and may not be evident to supervising staff.

    16. (16)

        Impulsivity is a major problem and is a greater driver of his violent behaviour than cognitive distortion. The defendant feels he loses control when agitated, with a full awareness that impulsivity compromises his functioning but feels unable to overcome it.

    17. (17)

        The defendant has a history of partial compliance with supervision, oscillating between viewing supervision as a malign system working against his freedom to appreciating that his supervisors share the common goal of seeing him succeed.

29. [63]

    In cross-examination, Mr Sheehan accepted in principle that engagement in cultural activities can assist the defendant in managing his emotional stability and other risk factors, but that it is common that conditions of supervision orders conflict with the cultural activities and connections to land of First Nations people.

30. [64]

    Risk scenarios identified by Mr Sheehan include fighting with people in the community with whom the defendant has a grievance, particularly antisocial peers. The defendant is also at risk of domestic violence. Mr Sheehan opined that it is more likely than not that the defendant would be affected by alcohol or cannabis. He is most likely to use his fists and to headbutt his victim, but he may also use a nearby object as a weapon. The defendant would more likely commit less serious violence such as intimidation, common assault or assault occasioning actual bodily harm. However, if he were to use a weapon, the likelihood of a serious violence offence would be substantially higher.

31. [65]

    Mr Sheehan recommended that the conditions should go towards managing the dynamic risk factors of substance use, associations and activities associated with an increased risk of crime, as well as interrupting the cumulative escalation of risk factors and encouraging the defendant to establish a stable and satisfying life.

32. [66]

    As to electronic monitoring, Mr Sheehan recommended that there should be a specific timeframe for the removal of electronic monitoring contingent on good behaviour (described in the hearing as a “sunset clause”). With respect to scheduling, Mr Sheehan stated that:

33. [67]

    In cross-examination, Mr Sheehan explained that scheduling can be used as a “therapeutic tool to schedule in pleasant activities” and to help defendants “get into the habits of thinking ahead”. He also explained that electronic monitoring can serve as a reminder to defendants that their liberty is conditional and can prevent attendance at high-risk locations where defendants are more likely to run into antisocial peers. Generally, he gave some preference to scheduling over electronic monitoring.

34. [68]

    As to the weapons condition, Mr Sheehan opined that:

35. [69]

    In cross-examination, Mr Sheehan accepted that the defendant’s use of weapons in his offending history has generally been opportunistic and he has used “objects that happen to be at hand”, which would not be captured by the conditions as formulated. However, he opined that it would further reduce his risk if the defendant did not have the capacity to carry a weapon with him, especially as an impulsive violent offender.

36. [70]

    As to the electronic communications condition, Mr Sheehan observed:

37. [71]

    As to the search and seizure conditions, Mr Sheehan opined:

38. [72]

    In cross-examination, while again acknowledging that these conditions are highly invasive and can read as “heavy-handed”, Mr Sheehan stated that they could have a significant effect on risk mitigation in the defendant’s case and that “on balance it is worth having the option to do that”.

39. [73]

    As to conditions relating to medical intervention and treatment, Mr Sheehan stated that participation in treatment “should be encouraged” but that “non-attendance should not be criminalised”. He supported conditions permitting for information sharing between health care professionals and the DSO, but clarified in cross-examination that failing to attend appointments should not amount to a breach of the order. He stated that he is not as “wedded to” proposed conditions 35 to 38 (requiring attendance at psychological counselling and taking prescribed medications) as much as he is to conditions 39 to 42 which provide for information sharing between treatment providers. Mr Sheehan was opposed to a condition that the defendant take prescribed medication (proposed condition 38) as it is of “equivocal value” and does not carry enough weight to justify its inclusion in the order.

40. [74]

    Mr Sheehan opined that a period of three years is adequate and strikes a balance between the need for supervision and the need to avoid discouraging the defendant in his process of rehabilitation.

41. [75]

    In cross-examination, counsel for the defendant asked Mr Sheehan whether a two-year order would have a similar effect in terms of motivating compliance and engagement. He stated that two years “might be a little rushed” and that three years is a “more comfortable position to meet the goals of supervision” (or the “Goldilocks zone” of supervision). Further, if there was a need to apply for a further order after the two-year period, this could disrupt the defendant’s progress and demoralise him.

42. [76]

    The report prepared under s 9(3) of this Act in support of this application was prepared by Samuel Ardasinski. He is a Senior Psychologist for High Risk Offenders at CSNSW who assessed the defendant on 25 February 2025 by audio-visual link. He prepared a RAR dated 6 March 2025.

43. [77]

    Mr Ardasinski identified the defendant’s dynamic risk factors of most concern as follows:

    1. (1)

       Recent problems with insight, instability and the geographical isolation of the area in which the defendant has returned (Narooma), including proximity to antisocial family; and

    2. (2)

       Future problems with professional services and plans, living situation, personal support, treatment and stress or coping.

44. [78]

    Mr Ardasinski’s opinion is that the “most likely” scenario for future violent offending would involve the defendant either being intoxicated and reacting to a perceived slight or challenge, or stepping in to defend someone. On the positive side, Mr Ardasinski noted the opinion of the defendant’s treating psychologist that the defendant’s situation and functioning is markedly different from the time when he committed the index violent offence, and he has demonstrated the ability to manage tension and conflict with his partner’s adult children. Nevertheless, Mr Ardasinski stated that the defendant has demonstrated since his release that he can default to anger and aggression when he is frustrated by people or situations.

45. [79]

    Overall, Mr Ardasinski assessed the defendant’s risk of violent reoffending as being in the “moderate” risk category. He considered “that it is possible that future violence, including domestic violence, could approach the threshold of a ‘serious violence offence’” as defined in the Act. However, he opined that a number of factors would need to “coalesce” in order for the defendant to “enter into a high-enough risk situation for such serious violence to ensue”.

46. [80]

    Mr Ardasinski considered that while the defendant had made evident progress and had reduced his assessed risk, concern remained about his potential to destabilise and pose a risk of serious violence, given his breaches of parole in the past and the intractable nature of a traumatic brain injury which had been implicated in the defendant’s persistent violent tendencies since he acquired the injury at age 11.

47. [81]

    In addition to the RAR, a number of earlier psychiatric and psychological reports dating from 1986 to 2014 were included in the supporting documentation. In my preliminary judgment, I found this material to be of less assistance given the effluxion of time since those reports were prepared.

48. [82]

    In cross-examination of Dr McSwiggan, counsel for the defendant referred to several of these previous reports to challenge Dr McSwiggan’s opinion that the defendant was embellishing the extent of his brain injury suffered during the car accident. The following reports were referred to:

    1. (1)

       The report of Dr Colin Andrews, neurologist, dated 13 August 1986. Dr Andrews concluded that “[t]here seems little doubt that this has been a fairly severe head injury and his present complaints suggest some frontal lobe impairment”.

    2. (2)

       The report of Tom Sutton, clinical psychologist, dated 17 September 1986. Mr Sutton concluded that:

    3. (3)

       A second report of Mr Sutton dated 2 September 1991. Mr Sutton noted that the defendant’s “logical analysis of social situations” is significantly poor.

    4. (4)

       The report of Dr Andrew Robertson dated 14 February 1992. Concerning the defendant’s motor vehicle accident, Dr Robertson observed:

    5. (5)

       The letter of Dr Robertson dated 9 July 1997. He noted the description of the defendant’s treating physician at the time of the accident of a “moderately severe head injury” which suggested to him that “the head injury was certainly of sufficient severity to cause frontal lobe injury and hence a degree of behavioural discontrol”.

    6. (6)

       The report of Amanda White, neuropsychologist, dated 25 April 2014. She opined that:

49. [83]

    The defendant was released on parole on 25 December 1995 for the aggravated sexual assault committed in 1992. Within three months, he committed the malicious wounding and assault offences in February 1996.

50. [84]

    The defendant was released on parole on 23 August 2000 for the assault occasioning actual bodily harm offence committed in 1999. His parole period was six months and he did not breach his parole.

51. [85]

    The defendant was released on parole on 25 August 2005 for the malicious wounding with intent offence committed in October 2001. He was subject to a number of additional parole conditions. The defendant appears to have completed this short period of parole with positive reports indicating that there was no indication of any alcohol use, a positive relationship, scheduled psychological counselling and an apparent desire to change “for the better”.

52. [86]

    The defendant was released on a two-month period of parole on 25 August 2009 in relation to the assault occasioning actual bodily harm offence committed in February 2009. At the conclusion of the parole period, he was noted to have been compliant with reporting, attended counselling and returned negative urine tests.

53. [87]

    The defendant has pleaded guilty to committing the January 2025 offences when he was on parole in relation to the index offence.

54. [88]

    Mr Sheehan conducted the following risk assessments in relation to the defendant’s risk of reoffending:

    1. (1)

       STATIC-99R: Well above average risk category of sexual reoffending (although Mr Sheehan opined that this overestimates the risk).

    2. (2)

       Violence Risk Scale (VRS): High or above average risk of violent reoffending.

55. [89]

    In cross-examination, Mr Sheehan accepted that none of these risk assessment tools is capable of distinguishing between a risk of committing a less serious offence and the risk of committing a more serious offence.

56. [90]

    Mr Ardasinski assessed the defendant’s risk of future offending using the following tools:

    1. (1)

       Violence Risk Appraisal Guide – Revised (VRAG-R): the defendant’s score is equal to, or higher than, 92% of the construction sample, and places him in the ninth of nine “bins”. This would classify him as “high risk” compared to other violent offenders. 76% of offenders in this risk bin reoffended violently within 5 years, and 87% reoffended violently within twelve years.

    2. (2)

       Ontario Domestic Assault Risk Assessment (ODARA) and Domestic Violence Risk Appraisal Guide (DVRAG): the defendant’s scores placed him in the highest risk category for reoffending. For the ODARA, 74% of offenders in this category committed another assault against their intimate partner, which came to the attention of police, within about five years at risk. For the DVRAG, 100% of men in this highest risk category reoffended with a new intimate partner assault within five years at risk.

    3. (3)

       Violence Risk Scale (VRS): the defendant’s score placed him in the “Average” or “Level III” risk category for reoffending, with a mean recidivism rate of 24.6% over five years.

    4. (4)

       HCR-20: The defendant’s assessment on the HCR-20 suggested that he will require a moderate level of effort to prevent future violence.

    5. (5)

       Spousal Assault Risk Assessment (SARA): the defendant has a low-moderate loading of risk factors for the commission of intimate partner violence. The factors which need to be monitored or addressed under supervision include: intimate and non-intimate relationship problems, past general antisocial conduct, a history of trauma/victimisation and substance use.

    6. (6)

       Structured Assessment of Protective Factors for Violence Risk (SAPROF): the defendant has a moderate loading of protective factors that would inoculate against risk.

57. [91]

    The Level of Service Inventory – Revised (LSI-R) was administered by CSNSW on 26 November 2025. The defendant fell in the medium risk level for general re-offending. The defendant was also assessed under the Community Impact Assessment as being a “T3/High Stage 3”.

58. [92]

    The defendant has participated in and completed the following programs in custody:

    1. (1)

       Violent Offenders Therapeutic Program (VOTP) between 7 April 2022 and 24 March 2023;

    2. (2)

       Real Understanding and Self-Help Program (RUSH) in 2021;

    3. (3)

       Aboriginal Cultural Strengthening Program in 2020;

    4. (4)

       Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS) Foundation Program in 2019. The defendant was described as consistently demonstrating a high understanding of the topics explored; and

    5. (5)

       EQUIPS Domestic Violence program in 2019.

59. [93]

    Upon completion of the VOTP, a treatment report was prepared dated 3 April 2023. The defendant’s presentation was said to be most notable for his consistent engagement throughout the therapeutic process, and the progress he had made. In the early stages of treatment, he had some lapses in his ability to emotionally regulate during periods of stress. As he progressed through treatment he developed insight into these behaviours, often taking responsibility and apologising for them, and they significantly decreased in frequency. He was said to be receptive to feedback, and have the capacity to internalise and meaningfully incorporate feedback. He also demonstrated improved insight into a number of his risk factors, and the ability to engage in unprompted retrospection and introspection. In the early to middle stages of treatment, the defendant had “somewhat of a pre-occupation with violence”, however he developed insight into this tendency, recognising he likely derived a sense of identity from his violent history, and it decreased as treatment progressed. Throughout treatment the defendant took responsibility for his offending behaviour. Despite the significant improvements made by the defendant during the course of the VOTP, it was noted that he was prone to relapses in behaviour, which is expected in the early stages of change. The defendant had a number of ongoing criminogenic needs that were likely to affect his risk of reoffending, which the defendant would need to continue addressing and monitoring.

60. [94]

    Following his release on parole in April 2023, the defendant engaged with a local psychologist until that psychologist left the area. The defendant then received regular aftercare, “maintenance” or “risk management intervention” sessions from the nearest CSNSW Senior Psychologist to consolidate his improvements from the VOTP.

61. [95]

    Danny Velebit, a Community Corrections Officer, prepared a Risk Management Report (“RMR”) dated 20 March 2025. The RMR sets out the risk management plan for the defendant in the event that an ESO is imposed.

62. [96]

    The supervision plan proposed is as follows:

    1. (1)

       Weekly contact with his Departmental Supervising Officer (DSO) by way of unannounced home visits;

    2. (2)

       Monitoring by the NSW Police ESO Investigation Team of the defendant’s behaviour in the community through covert observation and face-to-face contact to assess his level of compliance with his order conditions;

    3. (3)

       Engagement with support services such as alcohol and other drug (“AOD”) counselling, GP and re-engagement with EQUIPS program or VOTP maintenance, with ongoing support by a psychologist;

    4. (4)

       Behavioural change exercises to address his criminogenic risk/needs; and

    5. (5)

       Case plan review by the defendant’s DSO every two months to ensure its relevance to his risks and that it is reflective of his progress.

63. [97]

    The RMR sets out the recommended conditions in the event that an ESO is made, which correspond with those proposed by the State in these proceedings.

64. [98]

    Ms Kelli Grabham is the High Risk Offender Applications and Operational Governance Officer at the ESO Team within CSNSW.

65. [99]

    Ms Grabham explains that from the suite of conditions incorporated by an ESO, some involve the exercise of discretion by the DSO and others are static in their operation during the life of the order. Generally, this discretion will be exercised such that the order’s operation is relaxed over time, although this is dependent upon the offender demonstrating commitment to rehabilitation and ongoing compliance.

66. [100]

    Ms Grabham also considered the proposed supervision conditions to be appropriately framed to give effect to the risk management plan.

67. [101]

    As to electronic monitoring, Ms Grabham explains that CSNSW policies create four “stages” of electronic monitoring, with Stage 1 being the “initial” monitoring stage and the most restrictive and Stage 4 being the least restrictive. The use of electronic monitoring is reviewed both during the three-monthly case management review meeting and at each case plan review and is usually relaxed over time depending on the offender’s progress.

68. [102]

    As to scheduling, Ms Grabham refers to proposed condition 6 as a “sunrise clause” in which a scheduling requirement is not “triggered” unless the defendant breaches his ESO or is otherwise charged with a serious offence. She explains that the requirement to provide notification of movements in advance can be flexibly applied and a defendant can contact the DSO in relation to proposed changes.

69. [103]

    As to medical intervention and treatment conditions, Ms Grabham states that access to medical information will enable the DSO to refer the defendant to “appropriate services relevant to risk management”.

70. [104]

    As to personal details and appearance conditions, Ms Grabham states that these conditions are required so that CSNSW is able to identify the defendant even if he were to change his appearance.

71. [105]

    Ms Moore states in her affidavit that she is in a committed, supportive and stable relationship with the defendant and that they intend to marry in late 2026.

72. [106]

    She identifies various issues caused by electronic monitoring conditions including:

    1. (1)

       Stress and anxiety caused by false alerts or “off radar” readings;

    2. (2)

       Restrictions on travel that prevent them from attending family events, family outings, gatherings and community obligations;

    3. (3)

       Limitations on overnight stays that restrict their ability to travel for cultural, family or healing reasons; and

    4. (4)

       Constant uncertainty over whether the electronic device will malfunction.

73. [107]

    Ms Moore states that the defendant’s ankle monitor frequently fails in the area of Mystery Bay, which is a sacred cultural gathering place. Ms Moore also noted an incident that occurred on 13 November 2025 when the defendant received permission to stay overnight at another residence and there were issues connecting with his electronic monitoring device, resulting in a number of phone calls from the Electronic Monitoring officer and a visit from the police.

74. [108]

    Ms Moore also identified a number of lawful and culturally appropriate tools used to participate in cultural practices such as an abalone knife and a sharp stonehead/axe. She states that the current conditions prevent the defendant from carrying out these cultural activities.

75. [109]

    The Agreed Facts included a summary of relevant OIMS notes from the defendant’s time in custody and on parole. These notes largely show that the defendant initially behaved positively and demonstrated an awareness of his risk factors for offending during his period in the community on parole. He engaged with supervision, attended appointments with Community Corrections as required and engaged in intervention during those sessions. He also attended AOD counselling in the community. However, from May 2024, reports were made from members of the community which suggested that the defendant was using alcohol, cannabis and cocaine and that he was intimidating his partner and others. There were also some issues with his electronic monitoring equipment not being charged from November 2024.

76. [110]

    In my preliminary judgment I set out all of the OIMS notes summarised in the Agreed Facts at [63]. I propose to focus on some of the more recent entries for the purposes of this final judgment and to summarise them where appropriate rather than extract them in full.

    1. (1)

       On 6 July 2022, the defendant discussed the index offence and was noted to push some responsibility onto the victim. He expressed a willingness to engage in AOD services and VOTP maintenance.

    2. (2)

       On 7 July 2022, it was noted that completion of the VOTP was recommended instead of release due to the defendant’s demonstrated limited insight into the index offences.

    3. (3)

       On 28 April 2023, the defendant was breath and drug tested with no positive results recorded. The defendant advised that he had booked a psychologist appointment and was compliant with his anxiety medication. He denied his previous sexual offending, stating that he is a “very violent offender” but did not see himself as a sex offender. He detailed a recent incident where he did not act with aggression in a confrontation, as he would have done previously.

    4. (4)

       On 19 June 2023, the defendant stated that the index offending would not happen now as he had stopped all drug and alcohol use and through the VOTP had “gained the skills and control to better his reacts [sic] to his environment”.

    5. (5)

       On 30 June 2023, the defendant was referred to a psychologist for review of historical sexual offences. It was found that he did not require management as a sexual offender and did not appear to have any deviant sexual behaviours, with his management of mood, anger and impulsivity posing greater concern.

    6. (6)

       On 7 August 2023, it was noted that the defendant was in a new relationship with a woman named Mary. He stated that “things were going really well”, “he is not going to mess anything up” and he was “focused, AOD free and violence free”.

    7. (7)

       On 8 August 2023, a previous victim reported the defendant making contact with her family member over social media.

    8. (8)

       On 24 August 2023, the defendant discussed two of his children who did not want contact with him. He started to speak “a little aggressively” when his criminal history was brought up and his hostility towards the children’s mother was “alarming”.

    9. (9)

       On 28 August 2023, the defendant discussed his new relationship and that he and his partner had discussions about potential risks concerning alcohol and what they can both do to support each other.

    10. (10)

        On 18 September 2023, the defendant was breath and drug tested with no positive results recorded.

    11. (11)

        On 26 October 2023, the defendant advised that he did not attend two of his last psychologist appointments because he did not think it was necessary.

    12. (12)

        On 13 November 2023, the defendant stated that he and his partner Ms Moore had recently split up for a day due to her children. He stated that “old him would have taken the kids and bashed them” but that he had learnt that “things do not get fixed this way”.

    13. (13)

        On 19 December 2023, the defendant advised that he had a falling out with his uncle and was thinking about moving in with his partner.

    14. (14)

        On 10 May 2024, an Aboriginal Elder community member reported the defendant’s alcohol, cannabis and cocaine use. It was also reported that the defendant was stealing and driving without a licence. His partner’s family were reportedly frightened of the defendant, and his partner had been encouraging him to “fight her battles”.

    15. (15)

        On 24 June 2024, the defendant’s uncle reported that he had been smoking cannabis and drinking alcohol.

    16. (16)

        On 8 August 2024, a member of the public reported that the defendant had been drinking high amounts of alcohol, smoking “pot”, demonstrating intimidating behaviour towards his partner and that several people were scared of him. There were also reports that the defendant often drove under the influence of alcohol.

    17. (17)

        On 20 November 2024, the defendant returned negative results on breath and drug tests. He was continuing with AOD counselling and would be attending a men’s group.

    18. (18)

        In entries on 28-29 November 2024, there were various communications between the defendant, CCO and Electronic Monitoring staff regarding the defendant not charging his monitoring device properly.

    19. (19)

        On 6 December 2024, the defendant’s AOD counsellor reported that the defendant had continued to engage and appeared to have remained abstinent.

    20. (20)

        On 30 December 2024, Electronic Monitoring reported that the defendant entered the exclusion zone on three separate occasions on 21, 27 and 29 December 2024. The defendant explained that he was waiting in his partner’s car while she was dropping her grandkids at her house.

    21. (21)

        In entries on 11-18 January 2025, the defendant was camping at Mystery Bay to participate in cultural activities. There were various communications between the defendant, CCO and the Electronic Monitoring Team regarding issues with the monitoring device not charging properly and having poor signal. This included the defendant calling to raise concerns about whether the charger was working, attending offices as directed to check and replace equipment, and purchasing a battery pack.

    22. (22)

        On 23 January 2025, when discussing the pending offences, the defendant reported weekly binge drinking and daily cannabis use.

    23. (23)

        On 28 February 2025, investigation on JusticeLink identified a number of active Apprehended Violence Orders (“AVOs”) against the defendant.

    24. (24)

        On 10 March 2025, the defendant attended a psychologist’s appointment and spoke about his anger and anxiety. It is noted that he displayed great insight into his behaviours and the driving forces for it.

    25. (25)

        On 7 May 2025, during a psychologist’s appointment, the defendant acknowledged risk factors that needed to be managed and his partner was noted to be a significant support.

    26. (26)

        On 16 July 2025, it was recorded that the defendant was involved in a fight at the South Coast Correctional Centre. He pleaded guilty to the misconduct of assault.

77. [111]

    The Agreed Facts for the final hearing summarised a number of OIMS notes that were not included in the previous version of agreed facts. I have had particular regard to the following of them:

    1. (1)

       On 25 September 2023, the defendant detailed a fight with his uncle. He stated that he wanted to hit his uncle but that he stopped himself. The defendant detailed activities to deal with stress such as bike riding, walking and medication.

    2. (2)

       On 13 December 2023, a woman reported concerns that the defendant was stalking someone.

    3. (3)

       On 15 May 2024, the defendant discussed with a CCO situations where the defendant managed well without resorting to violence despite a strong urge to do so. They discussed the defendant’s healthy relationship with Ms Moore.

    4. (4)

       On 12 August 2024, police advised that the defendant was subject to an AVO protecting the defendant’s partner’s sister due to threatening SMS messages sent by the defendant. The defendant returned negative results on breath and drug tests. In relation to the AVO, the defendant admitted to sending the SMS and said he wasn’t thinking and was acting on impulse.

    5. (5)

       On 14 August 2024, the defendant discussed the recent AVO matter and said he received an abusive/derogatory message from the protected person and reacted impulsively.

    6. (6)

       On 16 September 2024, the defendant advised that he consumed five beers on 13 September 2024, drove a vehicle and had a collision, fled the scene but was later charged by police. The defendant advised that he had engaged with Katungal (a health care service for First Nations communities) to commence AOD interventions.

    7. (7)

       On 9 October 2024, the defendant’s partner Ms Moore stated that she believes that the defendant was remorseful for his actions leading to the reoffending and that the alcohol consumption was a one off. Ms Moore was noted to be a positive influence on the defendant.

    8. (8)

       On 6 November 2024, the defendant denied using alcohol or drugs and said he is focused on being healthy and being independent. He stated that he has too much to lose to go back to gaol. He spoke positively of his relationship with Ms Moore.

    9. (9)

       On 8 November 2024 and 2 January 2025, police reported “nil adverse intel” regarding the defendant’s behaviour in the community.

78. [112]

    The following OIMS entries summarised in the Agreed Facts refer to matters subsequent to the preliminary hearing.

    1. (1)

       On 22 September 2025, the defendant was fitted with electronic monitoring equipment before being released on bail.

    2. (2)

       On 23 September 2025, the defendant and Ms Moore attended Community Corrections without an appointment. They agreed to a collaborative approach to supervision. A check-in was conducted with Ms Moore concerning plans for keeping herself safe and she expressed her absolute support of the defendant.

    3. (3)

       On 30 September 2025, a scheduled home visit was conducted by an Aboriginal Community Engagement and Cultural Officer. The defendant agreed to attend Katungal to provide a sample for analysis. He had been bike riding with Ms Moore that morning which was encouraged as beneficial for his mental and physical wellbeing.

    4. (4)

       On 14 October 2025, the defendant attended a scheduled appointment with Ms Moore and was described as polite and communicative. He returned negative results on urinalysis tests. The defendant was noted to have engaged appropriately with supervision, shown insight into the challenges associated with reintegration, willingness to remain accountable and focus on rehabilitation goals.

    5. (5)

       On 14 October 2025, the defendant attended an AOD intake assessment. He was noted to have actively engaged in the process and appeared proud of his sobriety to date.

    6. (6)

       On 4 November 2025, the defendant reported to Community Corrections with Ms Moore. Both were noted to appear frustrated and combative at times. The defendant acknowledged that he felt overwhelmed and apologised for his earlier tone. Ms Moore raised concerns about community surveillance, leading to a discussion of the defendant being out of electronic monitoring service on 2 November 2025. Ms Moore became visibly upset and left the interview. The defendant stated they had gone to the bush for lunch and swimming. The DSO reinforced the requirement to remain within service areas.

    7. (7)

       On 11 November 2025, the defendant reported to Community Corrections with Ms Moore. They are described as distant and withdrawn at first and then becoming actively engaged. The defendant disclosed ongoing anxiety and panic attacks and Ms Moore also showed signs of emotional distress. Protective factors noted included strong mutual support, engagement with cultural and creative activities, physical activities, engagement with medical and therapeutic services, and connection to family.

    8. (8)

       On 13 November 2025, approval was given for the defendant to stay overnight with Ms Moore at the home of her son and his family.

    9. (9)

       On 14 November 2025, the Electronic Monitoring Team contacted the defendant about communication issues with the device and asked him to step outside the house to conduct a beacon reset. The police contacted the Electronic Monitoring Team and confirmed that they had sighted the device and it did not appear to be tampered with.

    10. (10)

        On 18 November 2025, a scheduled home visit was conducted. The defendant appeared insightful and reflective regarding his behaviour and progress. He described the issue with electronic monitoring during the previous week’s overnight stay as a disaster and acknowledged he should have taken the wall beacon with him. The defendant signed the extension of ISO without hesitation. The defendant reported he is slowly understanding how his thinking and substance use contributed to offending and violent behaviour. He reflected on the influence of a dysfunctional upbringing and the perceived need to be “tough”. He acknowledged the link between violent behaviour and substance use, and is not prepared to return to that lifestyle.

79. [113]

    There was no dispute that the first three of the four statutory prerequisites for the making of an ESO were satisfied in this matter. The defendant is a serious violent offender as required by ss 5 and 5B of the Act as the index offence is one which falls within s 5A(1) of the Act. The defendant is a supervised offender (within the meaning of s 5I of the Act) as he is presently on an ISO. Thirdly, the defendant was under supervision at the time the application was made as he was on parole at that time.

80. [114]

    It was only the fourth prerequisite which the defendant disputed. Before making an ESO, the Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d). The defendant submitted that this test had not been met. I considered the relevant principles when applying this test in State of New South Wales v Archer (Preliminary) [2024] NSWSC 1149 at [71]-[73] as follows:

81. [115]

    Since the preliminary hearing, both of the court appointed experts have provided reports and been cross-examined on behalf of the defendant at the final hearing. Both of them support the making of an ESO. I have already summarised their conclusions above and it is not necessary to repeat them here. In short, Dr McSwiggan concluded that the defendant poses a risk of committing a further serious offence and that an ESO:

82. [116]

    Mr Sheehan concluded that:

83. [117]

    I have considered the supporting material and submissions. I accept that the defendant has made numerous positive steps on his long path to rehabilitation but, as I observed at the time of my earlier decision, the path to rehabilitation is not linear. The defendant’s criminal history shows that he has been able to go for lengthy periods of time without reoffending and then commit an offence of violence. It is to be accepted that not all of his violent offending in the past would fall within the definition of a “serious offence” for the purposes of the Act but the fact remains that the applicant has demonstrated his capacity for extreme violence. In addition to the index offence, the 2001 violent offence was a serious offence for the purpose of the Act. Although the 1996 malicious wounding and the 1999 and 2009 assault occasioning actual bodily harm offences do not fall within the statutory definition, they are still relevant to illustrate the defendant’s risk factors.

84. [118]

    Although the 1992 and 1999 sex offences were also “serious sex offences” for the purposes of the Act, it was the risk of violence rather than sexual offending which was the focus of this application.

85. [119]

    The defendant’s risk factors arise from the combination of alcohol abuse, his antisocial personality traits and, potentially, the effects of his traumatic injury as a child. Both Court-appointed experts cast some doubt as to whether the brain injury suffered by the defendant when he was 11 years old was as severe as he now contends. Dr McSwiggan in particular was cross-examined at length about this issue. I have considered that evidence, but it seems to me that whether or not the defendant’s risk factors were already in existence, to some extent, prior to that motor vehicle accident does not detract from the expert evidence that he has an antisocial personality disorder and the other cognitive limitations identified by the experts.

86. [120]

    One of the difficulties in managing his risk is that neither his brain injury nor his antisocial personality disorder are amenable to treatment and will always be an additional risk factor. Even whilst being closely supervised on parole, the defendant committed the assault on police in January 2025 to which he has pleaded guilty and is currently on bail.

87. [121]

    On the positive side, the defendant has the support of a loving partner. I have had regard to the frustration expressed by his partner and her belief that the supervision of the defendant is interfering with his cultural reconnection and is thus potentially counterproductive. As Mr Sheehan explained in his evidence when that was put to him in cross-examination:

88. [122]

    Further, the defendant is now older, which is a relevant factor as to his ongoing risk. The index offence was committed in 2013. Although he has not committed another serious violence offence (within the meaning of the Act) since that time, he was in custody since 21 September 2013, being released on parole on 18 April 2023. The period without offending must be viewed in that context. In any event, the fact that the defendant may pose less of a risk of committing a serious offence than when he committed the index offence in 2013 does not mean that the statutory test cannot still be met.

89. [123]

    I have considered whether the supporting material establishes that the defendant’s risk is of committing a “serious” violence offence rather than simply an offence of violence. I have had particular regard to the fact that he has committed two such offences as well as the expert and other evidence of his risk factors.

90. [124]

    Having considered the supporting material, I accept that there will come a time when the defendant does not need to be under supervision. He will be older by the time this order expires. If he complies with his ESO it may well be that the State will not seek a further order when the current one expires. But on the material before me I am satisfied that the test remains met: I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

91. [125]

    As for the length of the ESO, the State seeks an order of three years whereas the defendant objects to an ESO, if ordered, being that long. Both court appointed experts were of the opinion that length was appropriate. Further, I was assisted by the evidence of Mr Sheehan on this issue that a two-year order “might be a little rushed” and so short that an extension of the order would be considered virtually as soon as the order starts, observing that:

92. [126]

    I am satisfied that the length of the order should be three years.

Conditions of the ESO

1. [127]

   The defendant’s position was that, in the event that I placed him on an ESO, I would only impose the conditions that he was subject to under the ISO, with the exception of the electronic monitoring condition. The State, on the other hand, sought conditions additional to those under the ISO.

2. [128]

   I have already summarised the evidence from the RMR and Ms Grabham’s affidavit and the court appointed experts as to the appropriateness of the proposed orders. I have considered which conditions should be imposed as part of the ESO in the context that that it is an offence to breach a condition of an ESO.

3. [129]

   In relation to each of the conditions which is opposed by the defendant I have considered whether there is a proper basis for the making of the conditions given the defendant’s risk factors. As Beech-Jones J (as his Honour then was) observed in State of New South Wales v Burns [2014] NSWSC 1014 at [59]:

4. [130]

   As is the usual practice, I was provided with a schedule which listed the numerous proposed conditions and identified which ones were disputed. I will confine my reasons to the disputed conditions.

5. [131]

   By way of overview, the State sought the conditions imposed on the ISO in addition to several conditions that I declined to impose in the preliminary order. It was submitted that these conditions were necessary and appropriate to address the defendant’s risk factors across the duration of the three-year ESO. The defendant, however, opposed the imposition of any conditions further to those forming part of the ISO, and maintained his opposition to electronic monitoring.

6. [132]

   Accordingly, I need only consider whether I should include as part of the ESO the conditions I did not impose as part of the ISO (now pressed by the State) and the electronic monitoring condition (still opposed by the defendant).

7. [133]

   The defendant continued to object to being electronically monitored. Ms Kennedy submitted that issues with the electronic monitoring device have caused disruption to the defendant’s engagement in cultural activities and obligations, as set out in Ms Moore’s affidavit. Ms Kennedy pointed to an incident in November 2025 when the defendant and Ms Moore sought to stay overnight at a family member’s home and this was approved, but there were issues with the electronic monitoring whilst there.

8. [134]

   Ms Kennedy submitted that the OIMS entries do not suggest that the defendant has been wilfully non-compliant with his electronic monitoring obligations. Ms Kennedy further submitted that the defendant’s risk profile is not affected by his attendance at certain locations and that electronic monitoring is not necessary in these circumstances.

9. [135]

   Mr Chapman submitted that the absence of any active scheduling requirement lends support for the necessity of electronic monitoring.

10. [136]

    In response to the matters raised by the defendant, Mr Chapman noted that the main issues experienced by the defendant with electronic monitoring concern the management of the device, including charging and technical issues. He drew the court’s attention to various OIMS notes in which communications were made between the ESO team and the defendant concerning the charging of his device, leaving the “On Board Charger” behind when he went camping at Mystery Bay, and signal issues in this remote area. It was submitted that these entries show the ESO team actively engaging with the defendant about issues with the equipment and working constructively with him to address these difficulties.

11. [137]

    I propose to take the same approach I did when imposed the ISO. I did not impose a scheduling condition on the ISO but in its absence, I was satisfied that electronic monitoring was required. Subject to condition 6 (discussed below), I propose to take the same approach for the ESO. As Ms Grabham explained in her affidavit affirmed on 18 November 2025, there are four “Stages” of electronic monitoring. The initial stage (Stage 1) is the most restrictive and the last stage (Stage 4) is the least restrictive. The use of electronic monitoring is reviewed every three months. Her evidence was that the condition is “usually” relaxed over time depending on the offender’s progress.

12. [138]

    I have considered the defendant’s position that this Court would place an end date on this condition if it was imposed. There was no material before me to suggest that that this condition would not be reviewed or reduced over time should the defendant’s progress justify it. Accordingly, I do not propose to apply an end date to that condition.

13. [139]

    As stated above, I declined to impose a scheduling condition on the ISO given the inclusion of an electronic monitoring condition.

14. [140]

    However, the State now proposes a revised form of this condition which incorporates a “trigger mechanism” operating such that the defendant will only be subject to scheduling if he breaches a condition of the ESO or has been charged with a serious offence. Otherwise, the condition will remain dormant unless or until there is such a breach.

15. [141]

    This revised condition is not opposed by the defendant, and I propose to include it.

16. [142]

    While I found in my preliminary judgment that the defendant’s relationship with Ms Moore is unlikely to end before the interim order expires, Mr Chapman identified the possibility that this relationship may end within the three-year period of the ESO.

17. [143]

    While accepting that this condition does not necessarily impose an additional burden on the defendant, presuming he maintains his current relationship, Ms Kennedy submitted that any breakdown in the relationship would come to the attention of the supervising officers because of existing accommodation conditions. Therefore, it was submitted that proposed condition 24A does not serve any further purpose in mitigating risk.

18. [144]

    I do not accept Ms Kennedy’s submission. The defendant’s risk factors include the risk to those with whom he is in a relationship. Ms Moore is a source of support to him at the moment, but anything could happen over the next three years. I am satisfied this condition meets the risk factors and poses next to no additional burden on the defendant. I propose to impose it.

19. [145]

    The proposed condition was in these terms:

20. [146]

    Mr Chapman submitted that it is undeniable that the use of weapons is a risk factor for the defendant and referred to the expert evidence in this regard. However, he accepted the difficulties with the enforcement of condition 27(c) which can only be enlivened once a criminal offence has been committed. As to whether the condition will impede the defendant’s participation in cultural activities, Mr Chapman identified that culturally important items can receive the approval of a DSO under the condition.

21. [147]

    Ms Kennedy submitted that condition 27 presents an impediment to the defendant’s engagement in various cultural activities, as set out in the affidavit of Ms Moore. Generally, she submitted that due to the defendant’s history of opportunistically using weapons, which would not be mitigated by condition 27, the risk management benefit of the condition is outweighed by the burden it imposes.

22. [148]

    I propose to impose this condition but only with respect to (a) and (b). As to the complaint that it might impede in the defendant’s cultural activities, it seems to me that an Abalone knife (which was one of the utensils raised in submissions) may well fall within the definition of a knife used for “ordinary domestic use”. In any event, as Mr Chapman submitted, culturally important items can receive the approval of a DSO under the condition.

23. [149]

    Mr Chapman emphasised that compliance is only required with any reasonable direction by a DSO and will not result in random searches. It was submitted that this condition can assist in mitigating the defendant’s risk of violence by monitoring his devices for signs of escalation and the “targets” of any escalation, having regard to his history of past offending including threats being made over electronic communications.

24. [150]

    On behalf of the defendant, Ms Kennedy submitted that the condition is of limited utility having regard to his risk profile. She submitted that while an AVO did relate to threatening messages, the content of the messages is not before the Court and therefore has not been identified as a real risk scenario.

25. [151]

    I am satisfied that this condition meets the defendant’s risk factors, which include him becoming aggressive upon feeling aggrieved by people. Although the index offence did not arise in circumstances involving text messages or other electronic communications, the defendant did make threats in electronic communications more recently resulting in an AVO being granted. I do not consider this is an unduly onerous condition.

26. [152]

    On behalf of the State, Mr Chapman submitted that the defendant’s risk of offending is actuated on the evidence by use of alcohol and illicit substances. These proposed conditions were submitted to be necessary to address this risk factor by permitting searches for alcohol, drugs and weapons on the defendant’s person and in his residence. Again, it was emphasised that a search could only be undertaken if the DSO reasonably believes that it is necessary.

27. [153]

    The defendant submitted that these conditions have no work to do in circumstances where the defendant resides with two other adults who are permitted to possess alcohol, the defendant is already subject to drug and alcohol testing and has been compliant with same, and search powers pursuant to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) already exist. Ms Kennedy further submitted that the wording of condition 29 rendered it a very broad search power.

28. [154]

    It is to be accepted that the defendant is now residing with Ms Moore, who is permitted to have alcohol, but that does not mean that the conditions have no work to do. Further, it may be the case that the defendant’s living arrangements change during the three years of the ESO. Having imposed the weapons condition, this condition complements it. I propose to impose this condition.

29. [155]

    I note in passing that as observed above at [71], Mr Sheehan stated that these conditions “are not utilised frequently or without reason” and that defendants subject to these conditions “don’t complain about this because it is not happening a lot”.

30. [156]

    Mr Chapman submitted that these conditions are necessary to enable the DSO team to identify the defendant and properly supervise him, and to address evidence of the defendant being deceitful on some occasions. Ms Kennedy did not specifically address this proposed condition.

31. [157]

    It seems to me, as was observed by Dr McSwiggan, that the defendant, as a bald man in his fifties, would have some difficulty changing his appearance. Nor is there any material to suggest he has done so in the past. I do not consider it necessary to include this condition given the defendant’s risk factors.

32. [158]

    While the defendant did not oppose these conditions, Mr Sheehan’s opinion in his evidence at the final hearing was that there may be no utility in imposing these conditions, particularly where the defendant is not an offender whose significant risk factors relate to a mental health condition requiring medical treatment. Following this evidence by Mr Sheehan, Ms Kennedy belatedly opposed those conditions as well and submitted that conditions 39 to 42 are sufficient.

33. [159]

    Mr Chapman acknowledged the evidence of Mr Sheehan but submitted that there is a community expectation that the defendant would be required to take medications that he has been prescribed, given there is a possibility that over the three-year period of the ESO there may be more intense medical interventions.

34. [160]

    I have considered this condition and the competing submissions. It was not initially opposed. I am satisfied that it meets the defendant’s risk factors and that it would not be unduly onerous to comply with.

Orders

1. [161]

   Accordingly, I would make the following orders:

   1. (1)

      Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”), I order that the defendant be subject to an extended supervision order for a period of three years commencing from 22 December 2025.

   2. (2)

      Pursuant to s 11 of the Act, I direct that for the period of the extended supervision order the defendant comply with the conditions set out in Schedule to Order 1.

   3. (3)

      I order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.