State of New South Wales v McCarthy

1. [1]

   On 11 December 2025, the State of New South Wales, the plaintiff, commenced proceedings against Rodney McCarthy, the defendant, seeking an extended supervision order (“ESO”) of five years under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. [2]

   The plaintiff also seeks interim orders for supervision, (“ISO”), for 28 days commencing 22 days after the defendant is released from custody (given returns to custody for breaches of a current ESO), and the appointment of two suitably qualified experts pursuant to s 7(4) of the Act to examine the defendant and report to the Court.

3. [3]

   This judgment deals only with the making of the interim orders.

4. [4]

   In light of the material tendered by the plaintiff, and the concessions made by the defendant’s counsel in his written submissions and at the hearing, I am satisfied that the orders sought by the State should be made.

5. [5]

   The only matter for debate was whether the following conditions should be imposed, or should be imposed in the form argued for by the plaintiff: Condition 4 - no threatening, intimidating or abusive behaviour; Condition 8 - prior notice of proposed changes to schedule of movements; Condition 30 - disclosure of criminal history by DSO to relevant persons; Condition 33 - reasonable directions as to use of electronic devices and the internet; and Condition 52 - the requirement that the defendant consent to information sharing by his health care providers.

6. [6]

   The resolution of that debate is set out in this judgment under the heading: “The contested conditions”. In this regard I was assisted by the helpful written and oral submissions of counsel for the plaintiff, Ms McEwen, and counsel for the defendant, Mr Hunter.

Relevant legal test

1. [7]

   The preliminary application is limited to an ISO of 28 days length. At this stage I am not engaged in the task of weighing up material contained in the evidence, or predicting the result of the plaintiff’s application at final hearing.

2. [8]

   What I am required to do is to consider whether the facts and matters contained in the documentation tendered by the plaintiff, would, if proved, justify the making of an ISO.

3. [9]

   The test is not a stringent one: State of New South Wales v Lynn [2013] NSWSC 1147 at [18]. It is necessary to have regard to the objects of the Act - safety and protection of the community being paramount - and to give weight to risk avoidance: Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7].

Attitude of the defendant

1. [10]

   In his written submissions, Mr Hunter informed the Court that the defendant did not oppose the imposition of an ISO, including taking no opposition at this stage to a number of the conditions proposed by the State.

2. [11]

   Express, (and appropriate), concessions were made for the purposes of this application that:

3. [12]

   The defendant declined to make any submissions with respect to the consideration of s 5B(d) of the Act which requires that the Court be satisfied to the requisite standard that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision.

Statutory considerations and the evidence tendered on the application

1. [13]

   In deciding whether I am satisfied to the requisite standard that the defendant poses an unacceptable risk of committing another serious offence if not supervised, I must bear in mind the safety of the community as the paramount consideration: s 9(2) of the Act, and I must consider the evidence tendered addressing the matters set out in s 9(3) of the Act:

2. [14]

   The plaintiff tendered the following affidavits:

3. [15]

   The defendant tendered an affidavit of Sarah Salman, Solicitor, affirmed 25 March 2026 which annexed extracts from case notes from 2017, 2019, 2022 and 2023.

Background and outline of the offending: (s 9(3)(h) and (h1))

1. [16]

   The following summary has been taken from the Joint Statement of Agreed Facts helpfully provided by the parties. The Court was assisted by this document as a fair summary of essential matters:

Psychiatric and psychological assessments of risk: s 9(3)(c) and (d)

1. [17]

   A comprehensive Risk Assessment report by Mr Ardasinski, Psychologist, dated 22 November 2023 and updating supplementary reports dated 1 October 2024 and 25 September 2025 inform in particular, considerations s 9(3)(c) and (d). Mr Ardasinski assessed the defendant as a person with “agonistic paraphilic disorders” which is a name given to mental disorders involving sexual gratification by the infliction of agony, which when acted on, result in serious harm, distress or impairment. [1]

2. [18]

   Mr Ardasinski noted the following risk assessments scores which had been conducted previously:

3. [19]

   Mr Ardasinski identified the following criminogenic needs/dynamic risk factors as being relevant to the defendant:

4. [20]

   Mr Ardasinski agreed with the risk scenarios previously identified and considered they remained valid, as follows:

5. [21]

   Mr Ardasinski agreed that a confluence of these factors provide circumstances in which the defendant would likely create access to a potential victim by means of passive (waiting for a convenient situation) or active (actively seeking a victim). He also agreed that such a scenario is entirely realistic in his view, and will need to be tightly managed by the defendant in the community if he is not to reoffend sexually.

6. [22]

   Mr Ardasinski considered that it is quite realistic that such a scenario for sexual violence could eventuate given the right preconditions and the potential for serious offending certainly remains if the defendant is not under any form of supervision once his ESO expires.

7. [23]

   In his supplementary Risk Assessment Report dated 1 October 2024 prepared on the basis of additional documentation, Mr Ardasinski concluded that the defendant remained high risk. This report was prepared following the defendant having been charged with new offences, some with sexual elements.

8. [24]

   On 25 September 2025, Mr Ardasinski provided a further Updating Supplementary Risk Assessment Report on the basis of a 90-minute interview with the defendant. Mr Ardasinski noted that the defendant remained in the highest risk category and while some dynamic risk factors appeared quite entrenched, there had been some efforts to empirically conceptualise protective factors which can help to inoculate against risk. Mr Ardasinski determined that the defendant had a low-moderate loading of protective factors, a majority of which relate to his being under supervision and having available intervention, support and monitoring.

9. [25]

   Earlier psychiatric and psychological assessments made in 2009 as part of the initial ESO imposed on the defendant included Mr Sheehan, Psychologist. He confirmed that the defendant was then in the high risk category of adult male sex offenders using the STATIC-99R tool. Mr Sheehan observed that the defendant had shown poor ability to self-regulate over the course of his life and had supported a range of distorted antisocial attitudes that have played a role in sexual offending. He also has had lifelong deficits in his ability to regulate himself in the community and in custody.

10. [26]

    Mr Sheehan considered that the defendant’s criminal behaviour, poor decision making and resistance to taking responsibility for his behaviour were all “perhaps best viewed in the context of his antisocial personality disorder and psychopathic traits”, but that “with ongoing support and concentrated effort Mr McCarthy may be able to improve his self-regulation”.

11. [27]

    Psychiatrist, Dr Anthony Samuels also provided a report for the 2009 ESO. He observed that the defendant fulfilled the diagnostic criteria for multiple paraphilias and that there was evidence of significant personality disorder with antisocial and narcissistic features. He noted that the personality disorder was a significant risk factor for reoffending. Dr Samuels concluded that it was likely that the defendant would commit a further serious sex offence if not supervised in the community; that the defendant’s behaviour in committing violent sexual assaults was driven by sadistic sexual fantasisation; and his offending behaviour appears to have been driven by personality factors, including a pattern of deviant arousal relating to causing pain, fear, suffering and distress in victims. Sexual preoccupation and sadistic sexual fantasisation were major risk factors for reoffending. Dr Samuels also noted that the defendant appeared to have some distorted beliefs and attitudes in relation to rape and the way in which he objectifies women, presenting as a man who is extremely hostile, easily affronted and feels the need for vengeance.

Management in the community: s 9(3)(d1)

1. [28]

   The affidavits of Mr Banton explained the supervision proposed under the ESO and the general rationale behind the conditions sought.

Programs in which the defendant has participated: s 9(3)(e)

1. [29]

   There is evidence that the defendant has participated in relevant programs in custody. He completed the Custody Based Intensive Treatment (“CUBIT”) in 2009 after declining to participate on two prior occasions. Case notes prepared during this time noted some improvement in the defendant’s presentation, noting that he responded to conflict without aggression or violence and attempted to solve problems through patience and compromise. However, it was noted that he continued to struggle with acknowledging the sexual nature of his offending history and continued to demonstrate a lack of insight. He also has engaged with Forensic Psychology Services (“FPS”) intervention and with a private psychologist in the community. However, it was noted that while the defendant identified a tendency to want to be in control in relationships, he did not explore strategies to change the power dynamics at home, and did not appear interested in exploring his sexual interest in dominance and control, nor did he appear motivated to change.

Cooperation with and progress on existing ESO has been quite poor: s 9(3)(e2) and (f)

1. [30]

   The defendant’s progress on the ESO has been described as ‘inconsistent’ and ‘fluctuated over the years’. His intimate relationship, while a source of connection and purpose, has been a primary issue of concern, as he is ‘sensitive to loss of control’ in a relationship and relationship conflict may be a trigger for offending.

2. [31]

   The history of offending set out in [16] of this judgment outlines breaches of the ESO including periods of incarceration for breaches of the terms of his ESO as well as breaches comprising separate criminal offending including recent charges regarding allegations of serious sexual offending in 2023

3. [32]

   The defendant privately engaged a psychologist in 2022 for counselling regarding private historical matters involving his childhood. He has not given permission for this psychologist, Veronica Tobin, to disclose the contents of their sessions, despite a condition of his current ESO that he must do so. I will return to this matter when discussing Condition 52.

Conclusion: s 5B(d) of the Act

1. [33]

   Having considered the evidence addressing the mandatory matters set out in s 9(3) of the Act, I am satisfied to the requisite standard (a high degree of probability) that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision.

Principles regarding the imposition of conditions

1. [34]

   Section 11 of the Act empowers the Court to impose conditions that it determines are appropriate, and contains an illustrative list of the types of conditions that might be imposed.

2. [35]

   The conditions that are imposed must be stringent and reasonably specific to reducing the particular risks of reoffending in the community: State of New South Wales v BG (Final) [2019] NSWSC 200 per Fagan J at [39]; State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883 per Garling J at [103].

3. [36]

   Whilst there is no express limit on the conditions that may be made, the focus must be on conditions that are appropriate for achieving the purposes of the Act.

4. [37]

   As stated by Basten JA in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”) at [124]:

5. [38]

   Basten JA also observed in Lynn at [129] that the Court “will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective”.

The contested conditions

1. [39]

   The Crown initially sought a condition in this form:

2. [40]

   Mr Hunter submitted that the Court should be reluctant to criminalise otherwise non-criminal behaviour by imposing this condition, citing the remarks of Fagan J in State of New South Wales v KW (Preliminary) [2023] NSWSC 397 (“KW”) at [14]-[15], McNaughton J in State of New South Wales v Ayoub (Preliminary) [2023] NSWSC 479 (“Ayoub”) at [27] and [28]; and Lonergan J in State of New South Wales v Tabbah (Preliminary) [2025] NSWSC 56 (“Tabbah”). These remarks were directed to inclusion of the word “abusive” in the proposed condition. In Tabbah I had a concern that the term “abusive” was undefined and subjective, and could create an offence potentially the subject of 5 years imprisonment for a person under an ESO or ISO for name calling or swearing.

3. [41]

   Ms McEwan submitted that those cases did not involve a defendant like this one who has a history of abusive behaviour to Correctives Services officers, and so his situation can be distinguished from those the subject of the remarks of Fagan J in KW, adopted and agreed with by McNaughton J in Ayoub. She submitted that intimidation and abuse, conduct demonstrated by the defendant on a number of occasions, can interfere with supervision, and so make that supervision less effective in managing risk.

4. [42]

   Ms McEwan placed reliance upon cases where the condition was imposed: by McGuire J in State of New South Wales v Azar (Final) [2025] NSWSC 1420 (in light of past abusive, derogatory and threatening behaviour: [197]); McNaughton J in State of New South Wales v Craig (Preliminary) [2026] NSWSC 8 (beneficial because it helps to bring clarity to what behaviour is expected and will facilitate how other directions and/or conditions may be enforced under the ISO: [55]), and Beech-Jones CJ at CL in State of New South Wales v Keir [2022] NSWSC 627 (likely to have an educative effect and enhance enforcement: [30]).

5. [43]

   An alternative wording was proposed by Ms McEwan during argument removing the word “abusive” to focus on threats and intimidation only.

6. [44]

   The defendant maintained his objection to the condition being imposed at all.

7. [45]

   I have determined that a condition in the form proposed by the Crown, removing the word “abusive”, is appropriate and will be imposed. The defendant has a history of engaging in the type of behaviour to which the condition (as now drafted) is directed. I accept the submission that making this a requirement of his ISO can have an educative effect and will enhance enforcement.

8. [46]

   Condition 8 proposed by the plaintiff is as follows:

9. [47]

   The defendant opposed having to seek pre-approval from a DSO for any change to the schedule of movements, wishing only to provide notification 24 hours prior to any change, but removing any DSO pre-approval requirement.

10. [48]

    The defendant proposed this alternative wording:

11. [49]

    Ms McEwan submitted that that defendant could be uncooperative and manipulative and had on previous occasions deviated from his schedule of movements to engage in a non-disclosed relationship.

12. [50]

    Mr Hunter submitted that it was unreasonable to require pre-approval and placed on unfair limitation on reasonable requests for change which could be, and had been, unreasonably refused in the past. In support of that submission one occasion was cited where the defendant in January 2026 wanted to drive a friend to hospital to visit a dying relative and became angry and abusive when that leave was refused.

13. [51]

    I accept Ms McEwan’s submissions. The pattern of offending, OIMS material and psychiatric and psychological reports paint a picture of a manipulative individual who is both violent and dishonest. Given the significant risk factors the defendant embodies, and his previous demonstrated dishonest conduct, unilateral changes in schedule made by him would place too much discretion in his hands, and remove the necessary ability to control and/or predict his movements from the attending DSOs. The interaction of both the electronic monitoring and the pre-approval schedule of movements is necessary for community safety, given the defendant’s history of random attacks on vulnerable members of the community.

14. [52]

    The defendant proposed that this condition should be limited to persons with whom he “commences a new domestic, intimate or sexual relationship”, arguing that this wording strikes an appropriate balance between the needed reduction of risk as against the invasion of the defendant’s privacy.

15. [53]

    I do not agree. The lines as to when a relationship of that kind “commences” is blurred, particularly against a background of the defendant deliberately lying about the commencement of a relationship in the past. Protection of the community is better served by imposition of the condition in the form proposed by the plaintiff, given the variability, randomness and seriousness of the history of offending including an elderly person and children.

16. [54]

    The defendant complains that condition 33 is intrusive. It is, and deliberately so. There is little point monitoring the defendant’s digital and online activity if there is no power to direct him to stop engaging in certain online activity. The condition is necessary for the protection of the community and will be imposed.

17. [55]

    The defendant submitted that his privately engaged treating psychologist Ms Tobin should be excluded from this condition. It was submitted that these consultations are directed to “significant childhood trauma and abuse and the effects of institutionalisation of 30 years of incarceration”, and so intensely private and not matters that should be disclosed and able to be shared with DSOs and others under condition 53.

18. [56]

    In my view, some of these matters are potentially relevant to risk. There is no principled reason that only one health care provider should be excluded from the requirement. There was no evidence that any special gains, in terms of either protection of the community or rehabilitation of the defendant, were being made because of his counselling with Ms Tobin. He has refused to comply with the condition of the ESO currently in place that requires that he authorise all providers, including Ms Tobin, to disclose information when asked. This situation has been allowed to continue although it appears that Ms Tobin has, on some occasions disclosed some information to the DSO team.

19. [57]

    The condition in the form sought by the plaintiff will be imposed.

Orders

1. [58]

   I make the following orders: