State of New South Wales v Peters (Preliminary)

1. [1]

   By Summons filed on 10 November 2025, the State of New South Wales seeks that the Defendant, Mr Damien Anthony Peters, be subject to an extended supervision order (ESO) for a period of 18 months under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. [2]

   Prior to the hearing of that application, in accordance with s 7(4) of the Act, the Plaintiff seeks the appointment of two qualified psychiatrists or two registered psychologists (or a combination of such persons) to conduct separate examinations of the Defendant and to furnish reports to the Court on the results of those examinations, and an order directing the Defendant to attend those examinations.

3. [3]

   The Plaintiff also seeks the imposition of an interim supervision order (ISO) commencing upon the expiry of the Defendant’s current ESO on 22 February 2026 for a period of 28 days, pursuant to ss 10A and 10C of the Act.

4. [4]

   The ancillary relief sought by the Plaintiff, relating to access to the Court file by third parties, was granted by consent by Yehia J on 13 November 2025.

5. [5]

   The central issue in this preliminary hearing is whether the matters alleged in the supporting documentation would, if proved, satisfy the Court to a high degree of probability that the Defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.

Supporting documentation

1. [6]

   As noted by N Adams J (as her Honour then was) in State of New South Wales v Archer (Preliminary) [2024] NSWSC 1149 (Archer) at [22], at the preliminary stage the Court is required to take into account all of the supporting documentation and assume that it would be proved at a final hearing. That documentation is tendered in accordance with s 6(3) of the Act, which provides that an application such as this must be supported by 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 serious offence.

2. [7]

   The supporting documentation comprises the Affidavit of Lucy Nichols, an employed solicitor of the Crown Solicitor with carriage of the matter, affirmed on 10 November 2025, together with Exhibit LN-1, and the Affidavit of Kelli Grabham affirmed on 19 December 2025. Ms Grabham is a High Risk Offender Applications and Operational Governance Officer at the Intensive Rehabilitation Directorate, Community Corrections, Corrective Services NSW (CSNSW).

3. [8]

   Exhibit LN-1 contains key documents concerning this application and the previous ESO application, as well as documents relating to the index offences, prior offending history and ESO breaches, psychiatric and psychological material between 8 October 2001 and 17 March 2025, and CSNSW and parole material.

4. [9]

   The Court was also furnished with a Joint Statement of Agreed Facts and Issues.

The Defendant’s background

1. [10]

   The Defendant is a 57-year-old man who was born and raised in Sydney. In 1987, when the Defendant was 18, he moved out of home and began living in shared houses and boarding houses. His mother passed away of cancer that same year. He is said to have had a “complex” relationship with his father, whom he states was verbally and physically abusive. His father passed away in February 2021 whilst the Defendant was in custody.

2. [11]

   He held numerous unskilled labouring and factory roles throughout his twenties.

3. [12]

   Prior to the index offending, the Defendant was convicted of several offences comprising stealing, breaking and entering, and assault occasioning actual bodily harm. He was imprisoned for a relatively brief period.

4. [13]

   In 1997, when the Defendant was 28 years old and homeless, he met Tereaupii Akai. He commenced a relationship with Mr Akai and eventually murdered him four years later. He met Bevan James Frost later the same year and murdered him within eight months of their meeting.

5. [14]

   The Defendant is currently living in the community and has, since July 2025, been living in private rental accommodation in the eastern suburbs of Sydney.

Index offending

1. [15]

   The Defendant was convicted of the murders of Mr Akai and Mr Frost, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) (Crimes Act), following pleas of guilty entered by him on 27 November 2002. On 20 December 2002, Wood CJ at CL imposed the following sentences:

   1. (1)

      for the murder of Mr Akai, imprisonment for 17 years commencing on 11 September 2001 and expiring on 10 September 2018, with a non-parole period of 9 years expiring on 10 September 2010; and

   2. (2)

      for the murder of Mr Frost, imprisonment for 17 years commencing on 11 September 2005 and expiring on 10 September 2022, with a non-parole period of 9 years expiring on 10 September 2014.

2. [16]

   This was a total effective sentence of 21 years’ imprisonment with a non-parole period of 13 years. Murder is a “serious violence offence” under s 5A(1)(a) of the Act, and these murders are the index offences which enliven the Court’s jurisdiction to make orders under the Act.

3. [17]

   The Defendant was released on parole on three occasions following the expiration of the non-parole period. Parole was revoked on each occasion because of his non-compliance with parole conditions. He served the balance of the head sentence in custody.

4. [18]

   The Defendant murdered Mr Akai sometime between 18 February 2001 and 1 March 2001. A further six counts of obtaining money by deception, contrary to s 178B(1) of the Crimes Act, were taken into account on a Form 1 on sentencing for this offence.

5. [19]

   The summary of facts prepared by the Deputy Senior Crown Prosecutor at the time of the Defendant’s sentencing records the following:

   1. (1)

      from January to the end of March 1998, the Defendant lived with Mr Akai in a domestic relationship. During their relationship, the Defendant was diagnosed with HIV. The Defendant initially blamed Mr Akai (who was also HIV positive). The Defendant moved out for a short period of time, however by April 1998 he was living back with Mr Akai;

   2. (2)

      Mr Akai was never seen from about mid-February 2001;

   3. (3)

      from 7 June 2001, withdrawals commenced from Mr Akai’s St George bank account. In total, there were six withdrawals between 7 June 2001 and 16 August 2001;

   4. (4)

      on 29 August 2001, NSW Police became aware of Mr Akai’s disappearance. When officers attended his unit, it appeared to have been ransacked. They observed what appeared to be blood stains throughout the various rooms. The officers collected samples;

   5. (5)

      on 30 August 2001, the Defendant was arrested in relation to using Mr Akai’s bank account. He was interviewed by the police and admitted to withdrawing money on each occasion but maintained it was done with the consent of Mr Akai. He stated that he had an agreement with Mr Akai whereby he would operate the account in return for his looking after Mr Akai’s flat and paying the bills. The Defendant said he had not seen Mr Akai for about six months;

   6. (6)

      following the issue of a warrant and the installation of a listening device at a premises, police obtained admissions from the Defendant in relation to the death of Mr Akai; and

   7. (7)

      on 11 September 2001, the Defendant was arrested and interviewed about the murder of Mr Akai. During the interview, he made full admissions to having killed both Mr Akai and Mr Frost. The Defendant said:

6. [20]

   Mr Frost was murdered by the Defendant on or about 9 September 2001.

7. [21]

   The same summary of facts prepared by the prosecutor details the following in relation to this offence:

   1. (1)

      on 11 September 2001, police attended Mr Frost’s flat where the Defendant presented himself. Police entered the flat and saw the premises in disarray. They also saw what appeared to be blood stains on the walls and floor of the bedroom and then discovered a dismembered body in the bath;

   2. (2)

      at the scene, the Defendant admitted the body was Mr Frost. Following a caution by officers, the Defendant admitted to killing Mr Frost with a knife during a fight two days earlier;

   3. (3)

      the Defendant was arrested and taken to a police station, where he was interviewed. During the interview he made full admissions to having killed Mr Frost. The Defendant stated:

   4. (4)

      the postmortem examination indicated that Mr Frost’s body had been gruesomely dismembered and mutilated.

8. [22]

   In sentencing the Defendant, Wood CJ at CL found that the objective seriousness of the two killings was “exceedingly serious” and aggravated by the “very disturbing subsequent dismemberment or partial dismemberment of each body”: R v Peters [2002] NSWSC 1234 at [70].

9. [23]

   As to the murder of Mr Akai, his Honour found at [70]:

10. [24]

    His Honour also found, however, in the Defendant’s favour, at [71], that:

11. [25]

    As to the Defendant’s risk of reoffending, his Honour found it to be relatively low, subject to him remaining drug free and away from disastrous relationships: at [82]. The Chief Judge cautioned that this qualification was “a very significant one, the force of which cannot be ignored or understated in view of the past.” For reasons that I shall address below, this is a significant observation.

Current ESO

1. [26]

   On 15 December 2021, the Plaintiff filed an application for orders under the Act in relation to the Defendant prior to the expiration of the head sentence on 10 September 2022. Justice Wright determined that application by imposing an ESO for a period of three years, commencing on the expiration of the sentence for the index offences: State of New South Wales v Peters (Final) [2022] NSWSC 1205. That ESO was due to expire on 10 September 2025. However, because the Defendant was subsequently imprisoned for further offending (described below), his obligations under the ESO were suspended for a period, such that the ESO now expires on 22 February 2026: ss 10(1A)(b) and (2).

2. [27]

   The Defendant has breached the ESO on two occasions.

3. [28]

   On 16 March 2023, following a search by a departmental supervising officer (DSO), the Defendant was found in possession of steroids. Condition 21 of the ESO prohibited him from possessing or using prohibited drugs or drugs unlawfully obtained. On 3 May 2023, he was convicted of failing to comply with the ESO and sentenced to a Community Correction Order for a period of 12 months.

4. [29]

   The second breach was more serious. On 10 January 2025, community corrections officers and police conducted a search at the Defendant’s home. He was found in possession of prohibited drugs and returned a positive result to an oral fluid drug test indicating the presence of amphetamine, methylamphetamine and cannabis. Officers also located a second mobile phone belonging to the Defendant, which contravened a written direction that he was only permitted to possess one mobile phone. Further, he was observed leaving his home after 10 pm, in breach of the ESO conditions.

5. [30]

   The Defendant pleaded guilty to and was convicted of these breaches on 28 March 2025. In relation to the use of prohibited drugs (as well as further offences taken into account on a Form 1), he was sentenced to imprisonment for 8 months commencing on 10 January 2025 and expiring on 9 September 2025, with a non-parole period of 4 months expiring on 9 May 2025. For the two other breaches, the Defendant was convicted without the imposition of a further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

6. [31]

   The Defendant was released on parole on 9 May 2025 and has since been at liberty.

7. [32]

   In the weeks following the Defendant’s release from custody, the Joint Statement of Agreed Facts and Issues records the following events:

   1. (1)

      10 May 2025: the ESO team attempted to locate the Defendant in the streets surrounding his place of domicile but could not locate him;

   2. (2)

      13 May 2025: during an unannounced home visit conducted at the Nunyara Community Offender Support Program Centre (the COSP), the Defendant’s hands were observed to be shaking, he struggled to put his shoes on and advised the DSO that he had missed his methadone dose at the Langton Clinic;

   3. (3)

      15 May 2025: the Defendant was observed to be intoxicated and made admissions to the staff at the COSP that he was intoxicated. Also, on the same date, the Defendant could not be located at his residence;

   4. (4)

      16 May 2025: DSOs conducted an unannounced home visit and, again, observed that the Defendant’s hands were visibly shaking. He experienced repeated memory failure and was observed to be dazed and confused during the visit;

   5. (5)

      19 May 2025: the Defendant failed to attend his scheduled appointment with a CSNSW psychologist;

   6. (6)

      21 May 2025: a DSO attempted to contact the Defendant multiple times but his mobile telephone was switched off. In a subsequent telephone call, a DSO was concerned that the Defendant appeared confused; and

   7. (7)

      26 May 2025: the Defendant conceded to his CSNSW psychologist that he missed his psychology session the week prior and admitted to using “half a bottle of pills” that he found in his clothing.

8. [33]

   In consequence of these events, the Defendant was regressed to Stage 2 ESO monitoring (electronic monitoring with scheduling and curfew) on 19 May 2025.

The statutory scheme

1. [34]

   The objects of the Act are set out in s 3:

2. [35]

   The Court’s power to make an ESO is provided for in s 5B of the Act as follows:

3. [36]

   The Defendant accepts that the first three statutory preconditions are satisfied, and I so find.

4. [37]

   At a preliminary hearing, the question for the Court is whether it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO: s 7(4). In determining this question, I take into account the following principles collected by Wright J in State of New South Wales v Shields (Preliminary) [2022] NSWSC 469 at [12]:

   1. (1)

      the objects of the Act in s 3, including the primary object of providing for the extended supervision of high risk violent offenders so as to ensure the safety and protection of the community and the other object of encouraging such offenders to undertake rehabilitation;

   2. (2)

      section 5D, which provides that a Court asked to make an ESO:

   3. (3)

      in determining whether or not to make an ESO, the safety of the community must be the paramount consideration: s 9(2);

   4. (4)

      the test in s 5B(d) requires the exercise of a discretionary judgment: Lynn v State of New South Wales (2019) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at 652 [82] (Basten JA), but the right of an offender to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn at 645 [44] and 648 [55] – [58] (Beazley P), 661 [128] (Basten JA), 665 [148] (Gleeson JA); and

   5. (5)

      the task being performed at the preliminary hearing stage is not to weigh up the documentation, or to predict the ultimate result, or to consider what evidence the defendant might call at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98] (Mason P, Santow and Tobias JJA). It has been described as being similar to applying a prima facie case test, taking the plaintiff’s case at its highest: State of New South Wales v Dickson (Preliminary) [2019] NSWSC 1116 at [43] (Johnson J).

5. [38]

   In relation to the standard of satisfaction that the Court must reach, I respectfully adopt the observation of N Adams J in Archer at [71]:

6. [39]

   If, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, it must make orders for the appointment of qualified psychiatrists or registered psychologists, or both, to conduct examinations of the offender and to furnish reports to the Court on the results of those examinations. If the Court is not so satisfied, it must dismiss the application for an ESO.

7. [40]

   Section 9(3) of the Act specifies the matters to which the Court must have regard in determining whether to make an ESO. It provides as follows:

8. [41]

   If the Court reaches the requisite satisfaction at the preliminary hearing, and it appears that the offender’s current custody or supervision will expire before the proceedings are finally determined, the Court may make an ISO: s 10A. An ISO may be imposed for a maximum term of 28 days: s 10C(1)(a).

Consideration

1. [42]

   The Plaintiff contends that the Defendant poses an unacceptable risk of committing another serious violence offence if not kept under supervision on the bases that:

   1. (1)

      the risk assessments conducted support the conclusion that the Defendant continues to be at a risk of violent reoffending;

   2. (2)

      the Defendant’s failures to comply with his current ESO demonstrate that he poses an unacceptable risk if not kept under supervision;

   3. (3)

      his attitude towards interventions aimed at reducing reoffending and the continuation of his underlying risk factors place him at a foreseeable risk of further serious offending if not addressed; and

   4. (4)

      the Defendant requires further continued intensive support to transition to an offence-free life such that, without an ESO, the risk of reoffending will be unacceptable.

2. [43]

   The Defendant submits that while he may have posed an unacceptable risk at the time the current ESO was imposed, more recent material supports a conclusion that his risk of committing a serious offence has “markedly decreased” such that he is no longer an unacceptable risk.

3. [44]

   As stated above, the task before me at this stage is to consider the supporting documentation, assume that the matters contained therein would be proved at a final hearing, and determine whether those matters would justify the making of an ESO. This is not an occasion to predict the ultimate result of the proceedings.

4. [45]

   In determining whether the imposition of an ESO would be justified, I am required to consider the results of assessments prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the Defendant committing a further serious offence: s 9(3)(c). I am also to have regard to any report prepared by CSNSW as to the extent to which the Defendant can reasonably and practicably be managed in the community: s 9(3)(d1).

5. [46]

   The exhibit to Ms Nichols’ affidavit contains a significant number of expert reports in the form of five psychiatric reports, each by different psychiatrists spanning a period of almost 24 years, as well as three expert reports prepared in 2021 and 2022 in support of the previous ESO application the subject of the orders made by Wright J.

6. [47]

   More recently still, and in relation to the present application, are the Risk Assessment Report dated 29 May 2025 prepared by Dr Richard Parker, a Senior Psychologist of the Serious Offenders Assessment Unit (supported by Ms Cherice Cieplucha, Chief Psychologist, Risk Management Programs), and a Risk Management Report dated 13 August 2025 prepared by Ms Sheree Bernal, Community Corrections Officer, and endorsed by Ms Grabham.

7. [48]

   Owing to the antiquity of the psychiatric reports contained at Tabs 18, 19, 20 and 21 of Exhibit LN-1, I propose to focus my attention on the following three reports:

   1. (1)

      the psychiatric report of Dr Sam Calvin dated 17 March 2025;

   2. (2)

      the Risk Assessment Report dated 29 May 2025; and

   3. (3)

      the Risk Management Report dated 13 August 2025.

8. [49]

   Dr Calvin assessed the Defendant on 7 February 2025. The report was prepared in the context of the ESO breaches with which the Defendant was charged.

9. [50]

   Dr Calvin’s report is relatively lengthy and dense, as any comprehensive report is likely to be. I do not intend to summarise the entirety of the report but, rather, to distil what I interpret to be the conclusions relevant to the matters that I must consider.

10. [51]

    My summary of Dr Calvin’s conclusions is as follows:

    1. (1)

       the Defendant has a complex psychosocial and forensic history, characterised by longstanding mood instability, polysubstance dependence, and serious offending;

    2. (2)

       substance dependence has had a significant impact on his offending behaviour, in contradistinction to periods of abstinence which are associated with relatively greater stability;

    3. (3)

       the custodial environment, because it limited the Defendant’s access to illicit substances, caused his substance use disorder to be in partial remission. By comparison, the Defendant’s release into the community subject to the ESO caused “frequent and clinically significant relapses”;

    4. (4)

       there is clear evidence of the Defendant suffering persistent emotional instability, poor impulse control and recurrent maladaptive interpersonal behaviours;

    5. (5)

       the Defendant has a longstanding pattern of dysfunctional coping, mainly through substance abuse during periods of emotional distress and environmental instability. He has “consistently demonstrated difficulty managing anxiety, low mood, and interpersonal stresses” when there are disruptions to routine or reductions in structural support. At these times he historically reverts to substance abuse including methamphetamine, cannabis and benzodiazepines, which then lead to breaches of supervision conditions and increased risk-related behaviours;

    6. (6)

       the Defendant’s substance abuse is not only a contributing factor to other risks such as emotional dysregulation or poor impulse control, but there is also a standalone independent risk factor due to its established association with increased likelihood of violence, offending and non-compliance with supervision or treatment;

    7. (7)

       although the Defendant does not currently express violent attitudes, his history reflects an impulsive and poorly regulated response to distress and frustration. Symptoms of major mental illness are not present at the time, however the Defendant exhibits marked difficulty in managing stress, having a tendency to resort to maladaptive behaviours, particularly substance abuse; and

    8. (8)

       the Defendant should continue to be managed under the conditions of his ESO with regular contact with supervisory staff and clearly defined expectations regarding compliance. A structured relapse prevention plan should be developed in collaboration with his treating team.

11. [52]

    The Plaintiff draws attention to Dr Calvin’s conclusion that the Defendant “has demonstrated some capacity for reflection and has acknowledged the impact of his behaviour on his supervision outcomes; however, his ability to consistently act on this insight remains limited.” It relies on this conclusion to support its submission that the Defendant continues to demonstrate limited insight into his offending.

12. [53]

    The Commissioner of CSNSW requested the preparation of a Risk Assessment Report in anticipation of an application for orders under the Act. Dr Parker interviewed the Defendant on 26 May 2025, and observed that the Defendant participated constructively, without attempting deception or impression management.

13. [54]

    In his detailed report dated 29 May 2025, Dr Parker provides the following helpful Executive Summary:

14. [55]

    Dr Parker has applied the Violence Risk Appraisal Guide — Revised (VRAG-R) and the Violence Risk Scale (VRS) as the risk assessment instruments in arriving at his conclusions. He notes, at paragraphs 46 and 50 respectively, the following:

15. [56]

    In relation to substance abuse, Dr Parker notes that “this is an issue that Mr Peters has yet to resolve” and that “he is still prone to relapses”. He candidly accepts that “what is unknown is whether Mr Peters would be able to curtail a relapse, if he were not under supervision.”

16. [57]

    The Commissioner also requested the preparation of a Risk Management Report in anticipation of this application. The report details the extent to which the Defendant can reasonably and practicably be managed in the community by CSNSW.

17. [58]

    The report prepared by Ms Bernal on 13 August 2025 draws on the observations made by Dr Parker in the Risk Assessment Report, but is primarily concerned with the Defendant’s Support Risk Management Plan and the conditions that CSNSW recommends be included in a supervision order. However, given that these conditions are not contested by the Defendant in the event that an ISO is imposed at this preliminary stage, and that the recommendations effectively continue the conditions to which he is already subject under the current ESO, this report assumes less weight in my assessment of whether the Defendant poses an unacceptable risk.

18. [59]

    The Court is also required to consider the Defendant’s criminal history and any pattern of offending behaviour disclosed by that history: s 9(3)(h).

19. [60]

    The Defendant was convicted of assault occasioning actual bodily harm in 1998.

20. [61]

    In relation to the index offending, what can be said is that in the space of one year, namely, 2001, the Defendant used knives to brutally murder two men with whom he was in a sexual relationship, and thereupon dismembered each of those bodies including, in both cases, by decapitation. The Defendant committed these murders while under the influence of prohibited drugs. Insofar as these two instances, separated by a relatively short period (i.e. at most about seven months apart), were the same criminal conduct and involved the same modus operandi in the defilement of the victims’ bodies, that, to my mind, discloses a pattern of behaviour. The Defendant has not, however, committed acts of violence since that time, either in custody or in the community.

21. [62]

    Since the index offending, the Defendant’s criminal history has been characterised by several instances of failure to comply with his supervision conditions, often including the possession or use of prohibited drugs. There is a clear pattern of substance abuse and non-compliance with his ESO as recently as January 2025, although his compliance appears to have improved since then.

Determination

1. [63]

   In considering whether the matters alleged in the supporting material, if proved, would justify the imposition of an ESO, the safety of the community is the paramount consideration: s 9(2). As adverted to above, the risk assessment to be undertaken at this preliminary stage is akin to a prima facie test. The test is not stringent: State of New South Wales v Lynn [2013] NSWSC 1147 at [18] (Button J).

2. [64]

   The Plaintiff and the Defendant join issue on whether the Court ought to find, on a preliminary basis, that the Defendant poses an “unacceptable risk” of committing another serious offence if not kept under supervision. The Plaintiff advances five grounds that would justify such a finding, namely:

   1. (1)

      the Defendant has a criminal history consisting of “the most serious offending”, with limited insight being demonstrated by the Defendant, who, it is contended, continues to express “victim blaming sentiment”;

   2. (2)

      previous experts (appointed three years ago) both concluded that the Defendant posed a risk of committing a further serious violence offence;

   3. (3)

      the absence of change in the Defendant’s insight and behaviour underscores the need for further continued treatment and supervision;

   4. (4)

      the monitoring of the Defendant on his current ESO has exposed a pattern of substance abuse; and

   5. (5)

      without further intervention, the Defendant is at risk of committing another serious violence offence in the community.

3. [65]

   The Defendant submits that I should not be satisfied to a high degree of probability, taking the Plaintiff’s case at its highest, that the Defendant poses an unacceptable risk. The kernel of the Defendant’s submission is that there has, since the imposition of the current ESO, been a lessening of the risk that the Defendant would commit a serious offence. That submission is in framed in terms that the risk has “markedly decreased such that there is no longer an unacceptable risk.”

4. [66]

   The Defendant principally relies on the Risk Assessment Report of Dr Parker and the Risk Management Report of Ms Bernal, endorsed by Ms Grabham. The Defendant relies on the observations made in Dr Parker’s report which I have set forth above in full, whereby Dr Parker has, applying assessment tools, arrived at a conclusion that the Defendant is at an average or below average risk of violent recidivism. Added to this, the Defendant observes that his assessment on 29 May 2025, using the Level of Service Inventory — Revised, placed him at low risk for general reoffending.

5. [67]

   An additional factor is the recent progression, on 24 December 2025, to T3/High Stage 4 monitoring on the Defendant’s current ESO, meaning that he is no longer subject to any electronic monitoring and is permitted to move freely in the community.

6. [68]

   As for the conduct that led to his reincarceration, for the second breach of the conditions of his ESO, the Defendant asks me to accept that he has largely abstained from drug taking, except for isolated occasions where he has relapsed for short periods. As regards the causation between his drug taking, which the Defendant candidly accepts is a long-standing issue which may never be fully resolved, and the risk of further offending, he submits that it does not equate to an unacceptable risk that he will commit a serious offence.

7. [69]

   In determining the issue of “unacceptable risk” at the preliminary stage, I have applied the principles set forth in the above stated authorities, but have also placed considerable reliance on the helpful distillation of the relevant principles by Lonergan J in this Court’s previous preliminary determination concerning the Defendant: State of New South Wales v Peters (Preliminary) [2022] NSWSC 109 at [29]ff.

8. [70]

   In undertaking the evaluative task, I am persuaded that, if the asserted facts were proven at the final hearing, they would justify the making of an ESO. My reasoning is as follows:

   1. (1)

      whether the Defendant poses an unacceptable risk involves a multifactorial evaluation of risk to the community in the absence of supervision;

   2. (2)

      such a risk may exist even if the likelihood of the Defendant committing a further serious violence offence is low. As noted above, the “high degree of probability” to which the Court must be satisfied applies to the assessment of whether the Defendant poses an unacceptable risk of committing a further serious offence; it does not apply to the likelihood of him committing a further serious offence. There is an inverse relationship between the seriousness of the offence and the level at which a risk of offending becomes unacceptable. The issue here involves a serious violence offence of the gravest kind, where even a low risk can be an unacceptable one;

   3. (3)

      the Defendant has not, since his release from incarceration for the index offences, been unsupervised at any time, hence my task is to prognosticate as to the risk of reoffending in a crucible of untested circumstances — what risk does the Defendant pose to the community if he is wholly relieved of the shackles of any supervision whatsoever?;

   4. (4)

      the seriousness of the Defendant’s previous offending is beyond peradventure. My interpretation of the opinions of the experts, particularly those of Dr Parker, in paragraphs 46 and 50 of his report (set out in [55] above), is informed by the principle that even a low risk of committing a serious violence offence can be sufficient to constitute an unacceptable risk;

   5. (5)

      I accept that the serious crimes committed by the Defendant occurred now two-and-a-half decades ago, but that fact must be viewed in the context that the Defendant since that time has been:

   6. (6)

      a constant thread in the Defendant’s offending, including the index offences, his parole breaches, and breaches of his ESO conditions and subsequent imprisonment, is his drug problems. The Defendant candidly concedes that these issues may never be fully resolved but nevertheless submits that a drug problem, of and by itself, does not constitute an unacceptable risk that he will commit a serious offence. There is force in this submission. The commission of a drug offence does not, itself, indicate any likelihood or propensity to commit a serious violence offence. But that is not the situation here. One must situate the Defendant’s almost lifelong problems with illicit drugs in the context of the commission of the violent offences. In doing this, it is necessary to dwell carefully upon:

9. [71]

   Taking the safety of the community as the paramount consideration, the concatenation of these matters satisfies me, to the requisite statutory standard, that such matters, if proved, would justify making an ESO on a final basis.

10. [72]

    Section 10A of the Act provides:

11. [73]

    The Defendant’s current ESO expires on 22 February 2026. These proceedings will not be determined before then. As I have also found that the matters alleged would justify the making of an ESO, the Court’s power to order an ISO is enlivened.

12. [74]

    I will impose an ISO for a period of 28 days, commencing on the expiry of the Defendant’s current ESO.

13. [75]

    The Plaintiff seeks that the ISO be subject to the conditions set forth in the Schedule to the Summons: s 11(1). At the commencement of the hearing, counsel for the Plaintiff handed up a document entitled “Revised Condition 35” which deleted the words “or when directly supervised by your mother or father in person”. This was included in error as the Defendant’s parents are both deceased. The Defendant indicated that he does not wish to be heard on the appropriateness of the proposed conditions.

14. [76]

    I have considered the proposed conditions. In doing so, I have had regard to the supporting documentation, and particularly the Risk Management Report. I also note that, at this preliminary stage, the Court should give weight to risk avoidance until the Court has the assistance of expert opinion provided by the reports furnished under s 7(4) of the Act: State of New South Wales v Amson [2023] NSWSC 719 at [88] (Walton J). I am satisfied that the proposed conditions are appropriate and should be imposed.

Orders

1. [77]

   I make the following orders:

   1. (1)

      Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), the Defendant is to be subject to an interim supervision order.

   2. (2)

      Pursuant to s 10C(1) of the Act, the interim supervision order is to be for a period of 28 days, commencing on 22 February 2026.

   3. (3)

      Pursuant to s 11 of the Act, the Defendant is to comply with the conditions set out in the Schedule of Conditions of Supervision annexed to this judgment for the duration of the interim supervision order.

   4. (4)

      Pursuant to s 7(4) of the Act: