State of New South Wales v Strong

1. [1]

   By summons filed on 1 May 2025, the State of New South Wales (“the plaintiff”) seeks an order under s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”), appointing two qualified psychiatrists or registered psychologists to examine Mr Robert Strong (“the defendant”) and report to the Court (with consequential orders).

2. [2]

   The plaintiff also seeks an interim supervision order (“ISO”) pursuant to s 10A of the Act for 28 days from 6 July 2025, when Mr Strong’s current extended supervision order (“ESO”) expires. The final relief sought by the plaintiff is an ESO for a further period of three years.

3. [3]

   The orders previously made under the Act in relation to Mr Strong include:

Summary of the plaintiff’s position

1. [4]

   There are three foundations for Mr Strong’s recent progress towards stability and pro-social community engagement.

2. [5]

   First, there is the extremely high level of support that he receives from disability support workers, under an intense package of the National Disability Insurance Scheme (“NDIS”) funding. Mr Strong’s acceptance of these supports is presently entirely voluntary. Furthermore, should the NDIS funding cease for any period, it may lapse in its entirety because Mr Strong is now eligible for aged care funding given his age.

3. [6]

   Second, there are the “repeated, rolling” Community Treatment Orders (“CTOs”) that have now been in place for many years (although there is no guarantee that they will continue, and no recent assessment of the impact of Mr Strong’s neuro-cognitive decline). The CTOs have contributed to the relative stabilisation of Mr Strong’s long-term psychotic illness and ensured that he continues to take anti-libidinal medication in accordance with the ESO. Mr Strong has indicated that he wishes to discontinue this treatment, once the ESO lapses.

4. [7]

   Third, there is the ESO itself. The conditions of electronic monitoring and those restricting Mr Strong’s relapse into substance abuse are highly significant. Mr Strong has a decades-long history of relapsing into substance abuse, with related homelessness, disengagement from support services, and eventual relapse into sexual offending. Any fear that electronic monitoring would hinder Mr Strong’s pro-social community engagement is not borne out by the evidence.

5. [8]

   These three foundations, together, support Mr Strong’s recent progress. His many complex risk factors in relation to his elevated risk of further sexual offending remain, although these foundations mostly contain them. The current ESO “has been pivotal in ensuring that these peripheral support structures do not fall away”. Should this foundation be removed, the structures would collapse.

6. [9]

   The Court would be satisfied to a high degree of probability that Mr Strong poses an unacceptable risk of committing another serious sex offence if not supervised under an ESO, even if the conditions of such an order are confined.

Summary of the defendant’s position

1. [10]

   For the preliminary hearing, the defendant accepts that the statutory preconditions for the making of an order under ss 10A and 7(4) of the Act are met. The defendant makes the following submissions in response to the “Summary of Plaintiff’s Position”:

2. [11]

   The defendant accepts that the statutory preconditions for the making of an order under ss 10A and 7(4) of the Act are met. In respect of the conditions of any ISO, the defendant submits that 13 identified conditions should not be imposed.

Background

1. [12]

   The defendant was born in Northern Tablelands, NSW and is 66 years old.

2. [13]

   The defendant has been diagnosed with schizophrenia and has been assessed as presenting with low cognitive functioning, as a result of his mental illness. He appears to also be experiencing some form of neurocognitive decline, namely, dementia. He has been prescribed anti-libidinal medications since 2015.

3. [14]

   The defendant has a long history of drug and alcohol use. He has been diagnosed with substance misuse disorder and has been intoxicated during the commission of a number of his offences.

4. [15]

   The defendant has a long history of sexual offending dating back to 1975. The sexual offending includes assault with intent to rape, multiple counts of inflicting grievous bodily harm with intent to have sexual intercourse, multiple counts of sexual intercourse without consent, indecent assault, and act of indecency. The defendant has a history of offending against both female family members and strangers, and his victims have ranged in age from 17 to 83 years of age.

5. [16]

   The defendant receives the Disability Support Pension and is supported by the NDIS. The defendant resides in NDIS supported accommodation at Macquarie Fields, NSW.

6. [17]

   Since his release from custody in 2018, the defendant has been subject to repeated, rolling CTOs under the MH Act, each one enforced for a period of six months. The most current CTO commenced on 8 May 2025 and will lapse on 7 November 2025. The medications mandated by the CTO include Risperidone for schizophrenia and Medroxyprogesterone, an anti-libidinal.

7. [18]

   The defendant’s finances are controlled by the Public Trustee, and he is no longer subject to a Guardianship Order.

Index offence

1. [19]

   On or about 14 February 2010, the defendant committed the offence of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The defendant was staying with his sister and her adult daughter (the victim) in Sydney. The defendant and the victim had been drinking alcohol with the victim's friends at a local hotel. They returned home and the victim went to bed. The victim woke to find the defendant had removed some of her clothing and was having penile-vaginal intercourse with her. The defendant was 50 years of age at the time of the offending.

2. [20]

   On 21 September 2011, following a plea of guilty, the defendant was sentenced by North DCJ to a term of imprisonment of 6 years and 3 months commencing on 16 February 2010 and concluding on 15 May 2016, with a non-parole period of 4 years commencing on 16 February 2010 and expiring on 15 February 2014.

3. [21]

   The remarks on sentence for the index offence included findings that:

Other relevant offending

1. [22]

   The defendant has a significant history of sexual offending, attempted sexual offending, and stalking and intimidation in relation to women. It includes the following offences:

2. [23]

   On 29 June 2001, the defendant was pronounced a "habitual offender" by Freeman DCJ pursuant to the Habitual Criminals Act 1957 (NSW).

3. [24]

   On 29 July 2016, Harrison J made a CDO in respect of the defendant for a period of two years.

4. [25]

   On 3 October 2018, R A Hulme J ordered that the defendant be subject to an ESO for a period of 5 years to commence on 3 October 2018. Following periods of suspension pursuant to s 10(2) of the Act, that order expires on 6 July 2025.

Risk Assessment Report

1. [26]

   Samuel Ardasinski, Senior Forensic Psychologist at Corrective Services NSW, prepared a Risk Assessment Report (“RAR”) on 17 December 2024.

2. [27]

   Mr Ardasinski's assessment of the defendant's risk of future offending, using the following tools, conveyed:

3. [28]

   As to future potential risk scenarios, Mr Ardasinski's opinion is that the "most likely" scenario is that the defendant could commit a further sexual act or an act of sexual touching upon an adult female stranger or an acquaintance. Mr Ardasinski opined that if all the structures, currently in place, fell away (some of which he noted are only voluntary), there may be a higher likelihood of physical coercion being used in future sexual violence if the defendant used alcohol to excess in a state of arousal and encountered a vulnerable female (RAR [41]). He considered the ESO to have been "pivotal" in ensuring that the peripheral support structures, including the NDIS and mental health supports, did not fall away.

4. [29]

   There have been various assessments of the defendant (further to those outlined above), as summarised below:

5. [30]

   On 4 February 2025, Scott Abbott, Senior Community Corrections Officer, prepared a Risk Management Report (“RMR”).

6. [31]

   The defendant has undertaken the following programs:

7. [32]

   The defendant has been convicted for failing to comply with his current ESO as follows:

8. [33]

   The defendant's criminal history is characterised by repeated sexual offending against adult women of varying ages dating back to 1975. The defendant has repeatedly exhibited stalking behaviour and used serious violence to commit sexual offences in the past.

9. [34]

   With the benefit of his NDIS-funded supports and treatment under CTOs, the defendant has taken pro-social steps.

Consideration

1. [35]

   The four preconditions in s 5B of the Act for the making of an ESO are:

2. [36]

   Regarding s 5B(a), Mr Strong is an “offender” within the meaning of ss 4A and 5 of the Act. He is over 18 and has served a sentence of full-time imprisonment following convictions for a “serious offence”, namely a conviction for maliciously causing assault occasioning bodily harm with intent to have sexual intercourse and sexual intercourse without consent in 1983. This is a “serious sex offence” pursuant to s 5(1)(a) of the Act. Although those sentences are complete, the definition of “offender” includes offenders who have served a sentence for a serious offence in the past: s 4A(b) of the Act.

3. [37]

   When the Court undertakes the exercise in ss 7(4) and 15(4), the Court is not involved in “weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties” that appear in the documentation: see State of New South Wales v Sturgeon [2019] NSWSC 559 at [6]. Rather, the Court is to consider (as a prerequisite for the matter to advance to a final hearing), whether it is satisfied that the matters alleged in the supporting documentation would, if proved, establish to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if they are not kept under supervision.

4. [38]

   In State of NSW v Tozer [2017] NSWSC 109, Garling J summarised the key principles informing the unacceptable risk precondition as held by the Court of Appeal in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57:

5. [39]

   The phrase a “high degree of probability” in s 5B(d) of the Act indicates something “beyond more probable than not”: see Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. A finding of risk requires proof to a higher degree than the civil standard of proof, though not to the criminal standard of beyond reasonable doubt. As held in State of New South Wales v Holschier (No 3) [2019] NSWSC 341 there must be:

6. [40]

   The approach to be taken at a preliminary hearing was summarised by Garling J in State of New South Wales v Sturgeon [2019] NSWSC 559:

7. [41]

   Under s 10A of the Act, the Court has power to make an ISO if it appears to the Court:

8. [42]

   It is appropriate to give weight to risk avoidance at the preliminary phase.

9. [43]

   A preliminary hearing must be conducted within 28 days after the application is filed in the Supreme Court (or within such further time as the Supreme Court may allow): s 7(3) of the Act. If the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Supreme Court must make orders regarding the psychiatric or psychological examination of the offender: s 7(4) of the Act.

10. [44]

    The defendant, through his tutor, Dr Katherine Johnson, does not oppose the order allowing for his examination by two psychiatrists or psychologists, the ISO, or the ancillary order.

11. [45]

    I am satisfied that the threshold preconditions under the Act are met. I am satisfied that the matters alleged in the supporting documents would, if proved, establish to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision.

Conditions

1. [46]

   The defendant submits that 13 of the proposed conditions should not be imposed. The defendant submits that the conditions relating to electronic monitoring, a schedule of movements, drug and alcohol (conditions 17(a) and 20 only), search and seizure, personal details and appearance, and NDIS support, are inappropriate and unnecessary. The defendant points to the significant progress he has made, particularly, over the last two years, during which he has demonstrated compliance with existing orders and treatment.

2. [47]

   The defendant further submits that the comprehensive conditions which will apply to an interim order, are sufficient to mitigate risk without being onerous, punitive, or paternalistic.

3. [48]

   The plaintiff submits that the schedule of conditions is necessary to provide adequate monitoring and supervision to maintain the necessary supportive framework ensuring the continued progress of the defendant.

4. [49]

   Both parties have taken me to relevant evidence in support of their respective submissions.

5. [50]

   In State of New South Wales v Cole (Final) [2024] NSWSC 1640 at [138], I referred to the principles relevant to a consideration of the necessity of conditions, by reference to the decision in State of New South Wales v Keech [2024] NSWSC 408 at [45]:

6. [51]

   I turn to consider the conditions which are opposed by the defendant.

7. [52]

   There has been no offending, or any charge laid on the defendant since 14 October 2022. According to the June 2024 ESO Completion Report, the defendant appears to be on a positive trajectory. He remains on a CTO (most recently made on 8 May 2025 and to expire on 7 November 2025). He appears to be responding well to the treatment order.

8. [53]

   On 8 May 2025, the defendant’s electronic monitoring brace was removed and there has been no evidence of any non-compliance, absconding, or breach behaviour.

9. [54]

   On the other hand, Mr Ardasinski, in the RAR dated 17 December 2024, states: “In my view, the two most important ESO conditions to manage Mr Strong’s risk of sexual reoffence are those mandating electronic monitoring and conditions which serves to restrict Mr Strong’s returning to problematic substance use”.

10. [55]

    The RMR dated 4 February 2025, states that a condition for electronic monitoring would allow Community Corrections to monitor Mr Strong’s movements in the community in real-time. Additionally, it would allow for Community Corrections to conduct regular movement audits to identify any concerning patterns in the defendant’s behaviour that may relate to his identified risks of reoffending.

11. [56]

    Although the electronic monitoring brace has been removed, the material establishes that external controls are important to mitigate risk and promote the defendant’s successful integration into the community. At this stage of the proceedings, I am satisfied that the electronic monitoring condition is appropriate.

12. [57]

    The plaintiff submits that these conditions are a further necessary external control to ensure compliance and to mitigate risk. In the event that Mr Strong’s risk changes rapidly, intensive and regular monitoring would be required.

13. [58]

    The defendant has not had to provide a schedule of movements since March 2024. He has stabilised in the community and has sufficient funding through the NDIS to have almost constant support, with male support workers accompanying him in the community. According to the June 2024 ESO Completion Report, the defendant has had no further instances of inappropriate relationships since 2021. His antipsychotic medication appears to have had a positive effect, and he has consistently presented without significant mental disturbance.

14. [59]

    The preparation and submission of a schedule of movements is an onerous task, particularly for someone with Mr Strong’s mental health conditions. Notwithstanding the fact that his disability support workers may provide him with assistance in the preparation of the schedule, I am persuaded that conditions 6-8 are unnecessary and place an undue restriction upon the defendant in circumstances where the identified risks are adequately addressed by multiple conditions which will attach to the order.

15. [60]

    Accordingly, I will not impose conditions 6-8.

16. [61]

    The defendant opposes conditions 17(a) and 20, on the basis that he has been abstinent for several years and has a demonstrated history, where he has been complying with court orders in the last two years. The defendant further submits that the remaining drug and alcohol conditions provide adequate and necessary supervision to ensure that he will not relapse.

17. [62]

    It is a credit to the defendant that he has been abstinent from drugs and alcohol for a lengthy period of time and that he has been subject to random alcohol and drug testing throughout his supervision with no concerns noted since 2019. The defendant has also demonstrated insight into the risks attendant on his use of alcohol and drugs.

18. [63]

    However, the defendant has a long-standing history of substance abuse issues, commencing during his childhood. Although, in more recent times he has been abstinent and compliant, his progress must be considered in the context of decades of substance abuse. Condition 17(a) and 20 are not onerous and do not unnecessarily infringe upon the defendant’s liberty. Condition 17(a) would allow the defendant to possess, purchase, or consume alcohol with prior approval from a Departmental Supervising Officer (“DSO”). The condition is flexible to permit him to consume alcohol, for example, at venues where alcohol is sold when in the company of his support staff. I note that according to an OIMS record of a case conference about the defendant, on 4 March 2025 (attended by his senior behavioural specialist and psychologist Ben Fullam, his NDIS support coordinator and an NDIS support worker), it was suggested that the defendant could attend karaoke at a local hotel in Macquarie Fields. The proposed conditions would not prohibit him from doing so with the approval of a DSO.

19. [64]

    Conditions 17 and 20 are appropriate and will be imposed.

20. [65]

    The plaintiff submitted that these conditions are necessary to mitigate two risks. First, the risk of behaviours relating to writing and sending letters of a menacing and threatening nature to women. Second, to mitigate the risk of the defendant accessing pornography.

21. [66]

    The evidence reveals a history of the defendant writing and sending letters to women, initially declaring his feelings but, in the face of rejection, containing threats of violence. The last time that such conduct was engaged in by the defendant was in 2021.

22. [67]

    In respect of the defendant’s access to pornography, I observed that there are multiple conditions limiting and/or regulating the defendant’s access to the Internet and other electronic communication. These conditions allow for remote monitoring of the defendant’s social media accounts by a DSO.

23. [68]

    I am satisfied that there are sufficient and adequate conditions to allow monitoring and supervision of the defendant with regard to risky letter writing behaviour or access to pornography, without having to impose the search and seizure conditions. In my view, the search and seizure conditions, are an unnecessary infringement on the defendant’s liberty at this stage of his demonstrated progress in the community.

24. [69]

    Accordingly, I will not impose conditions 33-36.

25. [70]

    The defendant does not oppose conditions which prohibit the use of an alias and require him to notify a DSO of any change of his name or appearance within 24 hours of such change. Condition 41 is unnecessary and highly intrusive in the circumstances. There is no evidence that suggests the defendant has or is likely to significantly change his appearance.

26. [71]

    Accordingly, I will not impose condition 41.

27. [72]

    The defendant opposes conditions 49 and 50 on the basis that there is no evidence that suggests the defendant is unlikely to renew his NDIS plan or to disengage with his NDIS support. He has reported that he is happy with the way things are right now and does not want to change anything.

28. [73]

    The NDIS package has provided the defendant with enormous support including, but not limited to, accommodation. Without stable accommodation, it is highly likely, if not inevitable, that the defendant’s mental health would deteriorate, and he would relapse into illicit drug and alcohol use. Stable accommodation is an essential foundation upon which to build the framework and structure required to address, treat, and support the defendant’s complex needs.

29. [74]

    Requiring the defendant to apply for renewal and remain engaged with NDIS funded carers, is not an imposition. It does not unnecessarily infringe his liberty. Indeed, it is a protective factor of the highest order.

30. [75]

    I am satisfied that conditions 49 and 50 should be imposed.

Orders

1. [76]

   Accordingly, I make the following orders:

   1. (1)

      Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW):

   2. (2)

      Pursuant to s 10A of the Act, the defendant be subject to an Interim Supervision Order.

   3. (3)

      Pursuant to s 10C(1) of the Act, the Interim Supervision Order is to commence on 6 July 2025 and be in force for a period of 28 days.

   4. (4)

      Pursuant to s 11 of the Act, I direct that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this judgment.

   5. (5)

      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 for access.

Part A: Reporting and Monitoring Obligations

1. [1]

   You must accept the supervision and guidance of a DSO and obey all reasonable directions of a DSO.

2. [2]

   Where a direction maybe given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

3. [3]

   You must truthfully answer questions from a DSO, or any other person supervising you, about:

4. [4]

   You must agree to any information relating to your risk, supervision or rehabilitation being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW.

5. [5]

   You must wear electronic monitoring equipment as directed by a DSO and must not tamper with or remove the equipment.

6. [6]

   Condition not imposed.

7. [7]

   Condition not imposed.

8. [8]

   Condition not imposed.

Part B: Accommodation

1. [9]

   You must live at an address approved by a DSO and notify a DSO of any intention to change your approved address or living arrangements.

2. [10]

   If directed, you must be at your approved address overnight between the hours specified by a DSO unless other arrangements are approved by a DSO.

3. [11]

   You must allow a DSO to visit you at your approved address at any time and to enter the premises at that address, provided such visits do not occur with unreasonable frequency on any day or night.

4. [12]

   You must not spend the night anywhere other than your approved address or any alternative approved addresses without the approval of a DSO.

5. [13]

   You must not permit any person to stay overnight at your approved address (other than persons who ordinarily reside there) without the prior approval of a DSO.

Part C: Place and travel restrictions

1. [14]

   You must not leave New South Wales without the approval of the Commissioner.

2. [15]

   You must not go to any place specified by a DSO.

3. [16]

   You must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO.

Part D: Drugs and alcohol

1. [17]

   You must not:

2. [18]

   You must submit to drug and alcohol testing.

3. [19]

   You must not enter any licensed premises (including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants) without the prior approval of a DSO.

4. [20]

   You must attend and participate in programs and courses for drug and alcohol rehabilitation as reasonably directed by a DSO and must not discharge yourself from such programs and courses without prior approval of a DSO.

Part E: Non-association

1. [21]

   You must not associate with any person specified by a DSO.

2. [22]

   Without limiting condition 21, you must not associate with any person:

3. [23]

   You must not engage the services of sex workers without the prior approval of a DSO.

4. [24]

   You must agree to a DSO disclosing your criminal history to another person with whom you commence an intimate relationship. Before any disclosure is made, you will first be given the opportunity to make the disclosure yourself within a timeframe as identified by a DSO.

Part F: Weapons

1. [25]

   You must not possess or use any of the following:

2. [26]

   At any time you have left your approved address, you must not have in your possession any knife (or cutting instrument) or any rope, chain or other instrument of restraint.

Part G: Access to the internet and other electronic communication

1. [27]

   You must obey any reasonable direction by a DSO the use of electronic devices and access to the internet.

2. [28]

   You must disclose the following information to a DSO if directed:

3. [29]

   You must give a DSO a list of the electronic devices you use to communicate with or access the internet. This includes computers, phones, tablet devices, data storage devices and gaming devices. You must advise a DSO of any change to the list immediately.

4. [30]

   You must provide a list of communication devices and data storage devices in your possession and advise a DSO of any change to the inventory immediately.

5. [31]

   You must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by you, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.

6. [32]

   You must provide consent for your telephone provider and internet service provider to share information about your accounts with a DSO.

Part H: Search and seizure

1. [33]

   Condition not imposed.

2. [34]

   Condition not imposed.

3. [35]

   Condition not imposed

4. [36]

   Condition not imposed

Part I: Access to pornographic, violent and classified material

1. [37]

   You must request and obtain approval from a DSO to purchase, possess, access, obtain, view, participate in or listen to material classified as Category 1 Restricted and Category 2 Restricted as defined under the Classification (Publications, Films and Computer Games) Act 1995 (Cth), or any other material as directed by a DSO with respect to concerns related to risk of committing a serious offence.

Part J: Personal details and appearance

1. [38]

   If you change your name or use any other name than Robert Strong, you must inform a DSO within 24 hours.

2. [39]

   You must not use any alias, log-in name other than “Robert Strong”, or a name other than those provided to a DSO under condition 38, or use any email address other than those known to a DSO under condition 28 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires to the user to have a user identification name or log-in email.

3. [40]

   You must notify the DSO within 24 hours of any significant changes to your appearance.

4. [41]

   Condition not imposed.

5. [42]

   If you change the details of any current form of identification or obtain further forms of identification, you must provide a DSO with such details.

Part K: Medical intervention and treatment

1. [43]

   You must undergo any ongoing psychological or psychological assessment or counselling (or any combination of these) as directed by a DSO, including therapy sessions, support and treatment programs the subject of the direction

2. [44]

   You must notify a DSO of the identity and address of any healthcare practitioner that you consult.

3. [45]

   You must take medications that are prescribed to you by your healthcare practitioners (including anti-libidinal medication) and only in the manner prescribed.

4. [46]

   You must notify a DSO immediately if you cease to take or decline to commence taking any medication as referred to in the above condition

5. [47]

   You must agree to your treatment and service providers and healthcare practitioners sharing information, including reports on your progress and attendance, and information you have told them, with each other and with a DSO.

6. [48]

   You must agree to any information obtained under condition 47 being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW.

Part L: NDIS conditions

1. [49]

   You must agree to apply for the renewal of your NDIS funding package (at least to its current level of financial and other support), in sufficient time to allow the application to be processed before the current NDIS plan lapses, and must do everything necessary to support that application being made.

2. [50]

   You must agree to accept supports under your NDIS funded package, and remain engaged with your NDIS-funded carers.