State of New South Wales v Wilmot

1. [1]

   These proceedings were commenced by summons filed on 27 August 2025. The plaintiff claims under the Crimes (High Risk Offenders) Act 2006 (NSW) a Continuing Detention Order (CDO) in respect of the defendant, for 12 months from 20 December 2025. That is the date upon which the defendant would otherwise be entitled to be released at the conclusion of a sentence of imprisonment that he is currently serving.

2. [2]

   The defendant is a 52-year-old man with an appalling record of violent sexual offending dating from early 1987 when he was 13 years old. His offending has been mostly against women but also against male fellow inmates while in custody.

3. [3]

   The summons came before me on 25 November 2025 for a preliminary hearing pursuant to s 15 of the Act. In accordance with that section the plaintiff sought an order appointing two qualified experts in psychiatry and/or psychology to examine the defendant and furnish the Court with reports on him. The plaintiff seeks an order requiring the defendant to attend the examinations by the appointed experts. Also at the preliminary hearing the plaintiff applied for an Interim Detention Order (IDO) pursuant to s 18A of the Act, for 28 days. It is the intention of the plaintiff that the IDO would be renewed as necessary so as to remain in force until the final hearing of the summons.

4. [4]

   Having read the affidavits filed by the plaintiff and the documents annexed and/or exhibited to those affidavits, and having heard from counsel for both parties, I made the following orders on 25 November 2025:

5. [5]

   Pursuant to ss 15(4) and 18A(a) of the Act, such orders may be made if the court is satisfied as follows:

6. [6]

   For reasons that will appear, I am persuaded that the making of a CDO would be justified at the final hearing and I will therefore disregard the alternative provided for in the above-quoted test, namely, that the matters alleged in the supporting documentation would satisfy the lower threshold of justification for an extended supervision order. The applicable test engages consideration of s 5C, which reads as follows:

7. [7]

   Both parties accepted for the purposes of the preliminary application that the above prerequisites are met. Paragraphs (a)-(c) are procedural matters, satisfaction of which will be apparent from s 13B of the Act, from the statutory definitions of the terms highlighted in the above reproduction of s 5C and from the defendant’s criminal and custodial history, to which I will shortly refer. Paragraph (d) of s 5C requires that I should refer to the evidence in order to explain why I consider that the judge who hears the summons on a final basis could reach satisfaction to a high degree of probability regarding the unacceptable risk posed by the defendant that he will commit further serious offences if he is not kept in detention. That risk pertains to the specific category of serious sex offences as defined in s 5(1).

Previous proceedings under the Act

1. [8]

   When the defendant was due for release at the end of a term of imprisonment in June 2019, the plaintiff made its first application for a CDO. The following judgments record the outcome of those proceedings, so far as presently relevant:

2. [9]

   In July 2021 plaintiff made its second application for a CDO, to commence at the expiry of the first such order and to remain in force for a further 2 years. The preliminary hearing in relation to that application resulted in the following outcome:

3. [10]

   Before that IDO was pronounced, the defendant was charged on 9 September 2021 with sexual offences alleged to have been committed against other inmates. He was remanded in custody on those charges and during the period of remand Lonergan J’s IDO was suspended by operation of s 18C(1A) of the Act. Both charges were dismissed following trials by judge alone, the trial of the second matter having concluded on 10 March 2023. The IDO made on 17 September 2021 came into operation from that date. It was extended twice until the final hearing of the plaintiff’s second claim for a CDO was determined, in June 2023. The outcome was as follows:

4. [11]

   In March 2024 the plaintiff applied to the Court for an Extended Supervision Order (ESO) under the Act, to commence from the expiry of the CDO under which the defendant was then detained up to 9 June 2024. An Interim Supervision Order was sought, pending final disposition of the summons. That interlocutory application was heard and disposed of as follows:

5. [12]

   The defendant was released from custody on 9 June 2024. Twelve days later, on 21 June 2024, he was arrested on a charge under s 11 of the Act that he had breached a condition of the ISO. The relevant condition stipulated that he must not purchase, possess, access, obtain, view, participate in or listen to material as defined by restricted category X 18+ under the Classification (Publications, Films and Computer Games) Act 1995 (Cth). The charge concerned multiple breaches of that condition constituted by the defendant viewing pornography on websites. He was sentenced in the Local Court to 1 year and 6 months imprisonment. An appeal to the District Court was unsuccessful. The term of imprisonment will expire on 20 December 2025.

6. [13]

   As a result of the early failure of Community Corrections’ attempt to supervise the defendant in the community under the ISO made by Wilson J, the plaintiff’s summons filed in March 2024 seeking an ESO was not pursued further. Instead, the present application for a CDO has been brought.

7. [14]

   In the relatively recent judgments of Lonergan and Wilson JJ, the defendant’s criminal and psychological history has been very thoroughly considered from precisely the same point of view as that from which I am now required to examine it, namely, to assess the level of risk to the community that would be posed by his release. It is regrettable that I must burden this decision with much repetition of the evidence that Lonergan and Wilson JJ have cited in their judgments. However, it is a very significant step to order that any offender who has served his full sentence should continue to be detained in custody, even on a short term interim basis, without any fresh charge having been laid, let alone proved. Special caution with respect to making such an order is called for where the offender in question has spent 37 years of his life in almost continuous custody. In view of the gravity of the decision I think it necessary that I should set out my own understanding of the evidence that has led me to conclude that the making of a CDO at the final hearing would be justified and that interim detention should continue in the meantime.

Criminal and custodial history

1. [15]

   The defendant’s history of violent sexual and other offending is summarised by Lonergan J in State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776 at [35]-[53]. Another useful summary is in the Risk Assessment Report of Ms Sarah Wright, forensic psychologist, dated 20 November 2023 at [23]-[30]. I will repeat here only a minimal outline of that history, for ease of reference:

2. [16]

   The crimes committed against Ms Balding constituted an horrific episode that shocked the community and is to this day widely remembered. The defendant was arrested on 11 September 1988 for his part. He was held in a youth detention facility until he was sentenced by Wood J on 22 March 1990. The sentences imposed, for eight offences, were made concurrent. The overall effective sentence was 9 years and 4 months with a non-parole period of 7 years, commencing from the date of arrest. Combining the period for which the defendant was held in youth detention from 11 September 1988 with the period spent in adult prison following his transfer in late 1990, the defendant remained in custody for 8 years and 1 month until his release to parole on 16 October 1996.

3. [17]

   Further offences were then committed as follows:

4. [18]

   The defendant remained in custody from his arrest. On 9 June 2000 Graham DCJ sentenced him for the offences of August and October 1997 and 29 June 1998. The total effective sentence was 9 years imprisonment with a non-parole period of 7 years. While in custody in 2004 police established the defendant’s responsibility for the violent sexual offending against the young railway worker on 2 June 1998. He pleaded guilty to detain with intent and three counts of sexual intercourse without consent. On 27 February 2006 Marien DCJ sentenced the defendant to a total effective sentence of 12 years with a non-parole period of 9 years. The sentence commenced from 29 June 2005, immediately following expiry of the non-parole period under the sentences that had earlier been fixed by Graham DCJ. Under Marien DCJ’s sentencing orders, the defendant would be eligible for release to parole from 28 June 2014 and his head sentence would expire 28 June 2017.

5. [19]

   After a judge alone trial in March 2015, the defendant was found guilty of the following further offences committed whilst in custody:

6. [20]

   On 27 November 2015 Townsden DCJ sentenced the defendant to a total effective term of imprisonment of 5 years with a non-parole period of 3 years and 9 months, commencing on 27 June 2014 (which his Honour thought would be the expiry of the non-parole period fixed by Marien DCJ). This additional sentence extended the defendant’s earliest date for release on parole to 26 March 2018 and extended the date for completion of his head sentence to 26 June 2019. The defendant was not granted parole. As earlier explained, the basis of the defendant’s continued custody after expiry of the last head sentence served has been as follows:

Past psychiatric and psychological assessments

1. [21]

   It has been accepted by judicial officers since the defendant’s first appearances before the Children’s Court that his parents were irresponsible, neglectful and inadequate, resulting in gross disturbance and deprivation of the defendant from his earliest years. The defendant’s mother used alcohol to excess and was emotionally abusive towards him. The defendant was physically abused by his mother’s multiple sexual partners. He was made a ward of the state from the age of five, as an uncontrollable child. In addition to his history of trouble at home he was aggressive and violent towards others at school. Foster home placements exposed the defendant to both sexual and physical abuse. From the age of 9 he fled such placements, intermittently, to live on the streets. The defendant spent some time in boys’ homes. The circumstances of his childhood left the defendant without educational or emotional resources, or appreciation of social rules, to enable him to maintain a stable life.

2. [22]

   On 22 March 1990, when passing sentence for the defendant’s involvement in the abduction and rape of Ms Janine Balding, Wood J received a report from Associate Professor Hayes showing that intelligence testing placed the defendant in the mild range of intellectual disability. He had significant deficits of social and adaptive skills and in moral development. Associate Professor Hayes concluded that he “could make moral judgements only in terms of perceived consequences for himself and had only primitive generalised concepts of right and wrong”. A report from the superintendent of the detention centre where the defendant was then held showed that, at the age of 17, he was performing in educational instruction “at a level ranging between the ages of 7 to 9 years”.

3. [23]

   Wood J summarised the effect of a further report, from Dr Dent, psychiatrist, as follows:

4. [24]

   When Graham DCJ passed sentence for the robbery and assaults of 1997 and the malicious wounding and detain for advantage offences of 29 June 1998, the defendant was 27. His Honour summarised in his remarks of 9 June 2000 evidence he had received from Dr Milton, psychiatrist, as follows:

5. [25]

   Those early opinions – that at 17 the defendant appeared likely to exhibit in the future a clearly defined antisocial personality disorder and that at 27 such disorder was manifest and intractable – have been borne out in subsequent psychiatric and psychological assessments. Passing over some intervening reports, I refer to that of Dr Kerri Eagle dated 9 August 2019, which was provided to Lonergan J pursuant to an order under s 15 of the Act and was extensively quoted in her Honour’s judgment of 24 September 2019: State of New South Wales v Wilmot (Final) [2019] NSWSC 1276 at [25]-[41].

6. [26]

   The following are key aspects of Dr Eagle’s diagnostic conclusions in 2019:

7. [27]

   Other evidence explains psychopathy as a personality disorder characterised by a lack of empathy and remorse, antisocial behaviour, and manipulative, deceitful, and egocentric traits.

8. [28]

   In Dr Eagle’s report of 9 August 2019 she noted common features of the defendant’s past offending and linked them to the typical characteristics of the antisocial personality disorder that has been diagnosed. In view of the entrenched and untreatable nature of the personality disorder, the risk that future offending would be of a similar nature is evident. Dr Eagle associated the pattern of the defendant’s past violent sexual offences with recognised manifestations of antisocial personality disorder, as follows:

9. [29]

   Relying upon the defendant’s bail and parole violations, his prison misconduct and his lack of engagement in custody-based rehabilitation programs, Dr Eagle made the following observations upon the defendant’s non-acceptance of supervision and his denial of responsibility for his crimes and the implications of those attitudes for failure to achieve rehabilitation:

10. [30]

    Dr Eagle’s observations in the last-quoted passage, from her oral evidence, are illustrated in a concrete way by a report dated 26 July 2019 concerning the defendant’s participation in a High Intensity Sex Offender Program. His first attempt at that program in 2012 was brought to an end because of sexualised and aggressive behaviour, which included deliberately exposing his genitals to young female nursing staff. During a second attempt in 2018-2019 the defendant refused to speak about his offending, which hindered any progress. He was emotionally dysregulated and increasingly engaged in aggressive and/or intimidating behaviour. The defendant was removed from the treatment wing before completion of the program. The report is expressed in restrained language but I find it perfectly clear that these attempts at behavioural therapy failed entirely in the face of the defendant’s antisocial personality disorder and that there is no basis for expecting that further attempts would be anything but futile.

11. [31]

    With respect to failure, and apparent inability, to accept responsibility for past offending, Dr Eagle noted that when a standardised test was administered on 22 June 2012 the defendant demonstrated “the same cognitive distortions [that were] present in 2000”. She quoted some of his responses to the test as follows:

12. [32]

    At an interview in August 2019 Dr Eagle found continuity of the defendant’s distorted perceptions:

13. [33]

    Upon administering a standard actuarial tool for assessing static and dynamic risk factors for sexual reoffending, Dr Eagle found that the defendant’s scores placed him in the “very high” risk category, within which the average 5 year sexual recidivism rate is between 24.6% and 57.7%, 9 times out of 10.

14. [34]

    Dr Eagle provided further reports dated 5 November 2021 and 23 May 2023. Those were relied upon by Lonergan J in reaching her decision of 7 June 2023: State of New South Wales v Wilmot (Final) [2023] NSWSC 605. Dr Eagle stated that little had changed since her report of 20 November 2019. That is entirely to be expected having regard to the well established diagnosis of a personality disorder involving lack of remorse or guilt, unalterable disavowal of responsibility and rejection of supervision or behavioural treatment.

15. [35]

    In 2023 Lonergan J also received a risk assessment report from Dr Parker, a senior psychologist within the Serious Offenders Assessment Unit of Corrective Services. Doctor Parker undertook an extensive review of the defendant’s history and applied the generally accepted actuarial tools. He assessed the defendant as being at a high risk of committing further general and sexual violence offences that could include serious offences if he should be released unsupervised at the end of his then current sentence. Doctor Parker recognised the undoubted fact that the defendant is institutionalised. He said that, in consequence, it is difficult to predict his ability to cope in the community and to observe conditions of extended supervision. The doctor’s report concluded as follows:

16. [36]

    Assessment of the defendant’s cognitive functioning has been updated since the reports received by Wood J in March 1990, when the defendant was 17. A report dated 11 November 2021 from Dr Sally McSwiggan, neuropsychologist, includes the following assessments based upon standardised testing:

17. [37]

    Dr McSwiggan’s experience of interviewing the defendant was illustrative of the impediment to any form of behavioural therapy or counselling that arises from his antisocial personality disorder, with psychopathic traits, and his obduracy, inability to accept responsibility and externalisation of blame. The defendant told Dr McSwiggan that he regarded the plaintiff’s then application for an ESO as a “failing of the system to assist him”. He described a belief that there was a government conspiracy against him with respect to obtaining housing and he rejected the view that his difficulty in that regard might be related to his offending profile. He said that if ESO conditions were made “too strict”, it was likely that he would not comply, “which is natural”.

18. [38]

    Pursuant to Wilson J’s preliminary order of 5 April 2024, expert reports were provided to the Court by Dr Sathish Dayalan, psychiatrist, dated 27 May 2024 and by Mr Patrick Sheehan, forensic psychologist, dated 17 May 2024. The Court has not previously had to consider those reports because the plaintiff did not proceed to a final hearing of its March 2024 summons for an ESO. The two reports have been tendered on the preliminary hearing in the present proceedings. I take from them that, at least up to May 2024, there has been no significant change in the defendant’s psychological condition, or in his attitude towards his past offending or towards the supervision of Corrective Services or towards attempts at behavioural therapy.

19. [39]

    The defendant denied to Dr Dayalan that he had committed any of the sexual offences. He said he only pleaded guilty “for legal reasons”. He asserted that his atrocious sexual assault upon the young female station assistant on 2 June 1998 had been consensual. That is a grotesque perception. It tends to a conclusion that over nearly three decades the defendant has made nil progress towards accepting responsibility, or feeling remorse, or commencing rehabilitation. Dr Dayalan endorsed the diagnoses by other specialists of borderline and antisocial personality disorders. The results obtained by Dr Dayalan from administering actuarial risk assessment tools confirmed the results that others before him have obtained. The defendant is in the Well Above Average Risk level for sexual reoffending according to the STATIC-99R instrument; he has a high level of stable dynamic risk and needs according to a STABLE 2007 evaluation and the HCR-20 tool revealed a high loading of risk factors for violent behaviour.

20. [40]

    Dr Dayalan drew the following conclusion:

21. [41]

    Mr Sheehan’s opinions, based on an extensive document review and a two hour consultation with the defendant, do not show any departure from the conclusions of other mental health professionals as to the appropriate diagnosis, the level of risk of further violent sexual offending, the defendant’s non-acceptance of responsibility for his crimes and his resistance to behavioural treatment and/or supervision. The following passage from Mr Sheehan’s report is notable:

22. [42]

    Amongst all the evidence tendered on this preliminary application, the only glimmer of hope with respect to future reduction of the risk posed by the defendant appears at [26] of Mr Sheehan’s report, which I quote together with contextual extracts from the preceding paragraph:

Corrective Services’ recent attempts to prepare the defendant for release

1. [43]

   On 29 September 2025 an Acting Deputy Commissioner approved removal of the defendant’s high security designation and progression to C1 classification, which would allow him to be moved to the Metropolitan Special Programs Centre (MSPC) where he could engage in steps towards reintegration into the community. Commencing on 1 October 2025 Corrective Services officers formulated a Reintegration External Leave Plan in preparation for equipping the defendant for his release on 20 December 2025. It was intended to implement that Plan in readiness for the contingency that the Court might not be willing to order interim detention pending final disposition of these proceedings.

2. [44]

   The defendant was moved from Goulburn to the MSPC on 2 October 2025 On 16 and 28 October he was interviewed to discuss an application to the Commissioner for pre-release escorted day leave. The discussions extended to procuring civilian clothing for the defendant, assisting him with the use of a mobile phone and identifying useful objectives for daily visits such as Centrelink, medical practices and shopping centres, to enable him to prepare for everyday life in the community. The Reintegration External Leave Plan envisaged that the defendant would undertake work readiness activities, such as working in the prison and preparing a CV. He was put on a waitlist for a forklift driver training course, scheduled for November 2025. A first day leave trip, to a shopping centre, was scheduled for 13 November 2025.

3. [45]

   Unfortunately, on 10 November 2025 a complaint was made by another inmate that the defendant had head-butted him and struck him to the head with his right hand. The complaint was verified upon review of CCTV footage. This resulted in cancellation of the defendant’s scheduled day leave.

Conclusion

1. [46]

   The sequence of events described in the last two paragraphs is illustrative of the difficulties in the way of preparing this high risk, severely institutionalised prisoner for release. Whether such preparation can successfully be undertaken and whether a suitably conditioned ESO can satisfactorily address the risk that he poses are matters to be determined at the final hearing of the plaintiff’s summons. Upon a full hearing, with the benefit of the two further updating expert reports that are now to be obtained, the Court may ultimately be satisfied to a high degree of probability that the defendant would pose an unacceptable risk even with supervision under an ESO with conditions. Application of the paramount consideration of community safety, to which the Court must give effect by force of s 17(3) of the Act, may result in a further CDO being made as sought by the plaintiff. In those circumstances, interim detention is called for in the meantime.