State of New South Wales v Farzad (Preliminary) (No 2)

1. [1]

   The defendant is the subject of an extended supervision order (“ESO”) imposed on 15 March 2024 by Hamill J pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). [1] That order will expire on 23 April 2026. By summons filed 19 December 2025, the plaintiff seeks an order that the defendant be subject to an ESO for a further period of two years pursuant to ss 5B and 9(1)(a) of the Act.

2. [2]

   At this preliminary stage, the plaintiff seeks interim orders as follows:

3. [3]

   The defendant is unrepresented and did not attend the preliminary hearing in person nor seek to attend by AVL, nor did he make any other requests or submissions to the Court concerning the conduct of the proceedings. His failure to attend or participate in the hearing on 25 March 2026 was not unexpected, given that he had failed to appear or instruct lawyers on his behalf at three directions hearings, despite being notified of those dates. [2] By way of oral application, the plaintiff sought to proceed with the preliminary hearing on 25 March in the defendant’s absence. For the reasons which follow, that application was granted.

Proceeding in the absence of the defendant

1. [4]

   Whether it is appropriate to proceed in the absence of an unrepresented defendant will depend upon a number of circumstances, including the nature of the proceedings. Litigation under the Act is considered “for many, if not all” purposes to be in the nature of civil proceedings: State of NSW v Guider (No 3) [2020] NSWSC 209 at [6]; Manna v State of NSW (No 2) [2021] NSWSC 1384 at [9]. Section 21 of the Act expressly provides:

2. [5]

   Whilst the proceedings are civil in nature, it must be borne in mind that they are proceedings that are in a very real sense concerned with the liberty of the defendant, which is a matter of considerable weight when deciding to exercise the power to determine the merits of the matter in the defendant’s absence: Monteiro v State of NSW [2025] NSWSC 439 at [11]; Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [37]. [3] As explained in Cornwall v State of NSW [2007] NSWCA 374 with respect to the purposes of an earlier incantation of the Act:

3. [6]

   As set out above, the plaintiff ultimately seeks orders that the defendant be subject to an ESO for a further two years. Whilst the Court must approach the question of whether to make an order restricting the liberty of a person with “care” (Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [34]), s 17(2) of the Act provides that in determining whether to make an ESO, the “safety of the community must be the paramount consideration”. The legislation is protective and not punitive in its intent: Attorney-General for New South Wales v Tillman [2007] NSWCA 119 at [5]. However, a breach of an order may be punishable by a term of imprisonment. [4] Given the potential consequences not only of making the order sought, but of a breach of any conditions of the order, the Court should be well satisfied that it is in the interests of justice in all of the circumstances to hear the plaintiff’s application in the defendant’s absence.

4. [7]

   Significantly, the present proceedings are preliminary in nature. They do not finally determine whether a further ESO should be made, but whether an interim order for 28 days should be imposed at the expiration of the defendant’s current ESO, to permit time for the defendant to be examined by court-appointed medical experts and for the matter to proceed to a final hearing. Section 10A of the Act empowers the Court to make such an order if it appears to the Court that the “matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order” (emphasis added). This test has been described as akin to a prima facie case test (State of NSW v Manners [2008] NSWSC 1242 at [8]) or as taking the plaintiff’s case at its highest (State of NSW v Dunn (a pseudonym) [2018] NSWSC 1008 at [44]). In the State of NSW v Thomas (Preliminary) [2011] NSWSC 118, RA Hulme J said at [11] “[t]he task of the Court at the preliminary hearing stage is not to weigh up the documentation, or predict the ultimate result, or to consider what evidence the defendant might call at the final hearing”. At preliminary proceedings, any disadvantage to the defendant which may arise from his non-participation is different from the position were that to be so at the final hearing.

5. [8]

   The first question to be determined is whether the defendant has had adequate notice of the proceedings. In proceedings of this nature, this imports considerations of the defendant’s understanding of that notice and capacity to respond, in so far as those matters can be ascertained.

6. [9]

   The plaintiff read four affidavits on the application to proceed in the defendant’s absence, from which the following summary is taken. [5]

7. [10]

   Acting on the instructions of the Attorney-General, a solicitor from the NSW Crown Solicitors Office (“the CSO”) wrote to the defendant on 31 March 2025 notifying him that orders would be sought in relation to him under the Act. On 11 April 2025, Legal Aid NSW (“Legal Aid”) advised the CSO that the defendant had consented to the CSO contacting Legal Aid with respect to the matter. On 15 December 2025, the CSO advised both the defendant and Legal Aid of their instructions to commence an application seeking an ESO.

8. [11]

   A summons was filed on 19 December 2025 and the matter listed for directions on 5 February 2026. The CSO wrote a letter to the defendant informing him of the summons and the directions listing. In January, the Department of Communities and Justice (“DCJ”) confirmed that the defendant had collected the letter. His departmental supervising officer (“DSO”), spoke to him about the availability of representation from Legal Aid. There is no evidence that the defendant contacted or instructed Legal Aid.

9. [12]

   On 31 January 2026, notes record that officers visited the defendant and during the visit they “prompted” him to contact Legal Aid whilst he expressed reluctance to do so. On 3 February 2026, notes record a phone call in which the defendant said to his DSO that he did not wish to have Legal Aid representation, nor would he attend Court to represent himself.

10. [13]

    On 5 February 2026 when the defendant was reminded that there was an AVL link to the directions hearing on that date, he told his DSO that he would not appear. The defendant was later advised that the directions hearing had been adjourned to 12 February 2026. Casenotes indicate that when the DSO asked the defendant on 11 February 2026 if he would be attending, he replied “No, I’ll give it a miss”.

11. [14]

    The CSO again wrote a letter to the defendant on 12 February 2026, this time advising of the listing of a further directions hearing on 19 February 2026, and of the listing for preliminary hearing on 25 March 2026. Information was provided about the availability of free and confidential legal advice, and a means to contact Legal Aid NSW, as it had been in earlier correspondence. The letter included the following:

12. [15]

    The defendant signed this letter acknowledging receipt. Case notes record conversations with the defendant in which his responses reflected an awareness of the upcoming court hearing, a recognition that it concerned his ESO, and a statement that he did not propose to attend the directions hearing of 19 February 2026, despite a reference by the DSO Ms Lobb to the fact that it was his “right” to attend, and her mention of the option for him to take up assistance from his National Disability Insurance Scheme (“NDIS”) support workers to do so.

13. [16]

    The defendant was advised of the preliminary hearing date of 23 March 2026 again on 3 March 2026 by formal letter from the CSO. On 9 March 2026, the defendant was personally served, by process server, with the materials filed by the plaintiff in the matter. The defendant was further reminded by text message of the listed hearing date on 19 and 23 March 2026.

14. [17]

    The defendant’s attitude to participation in the present proceedings may be affected by the mental health issues he is experiencing, which appear to include an overall state of low motivation. On occasions, he has expressed opinions to his DSO concerning his supervision conditions, for example, stating with respect to electronic monitoring that such conditions should only apply to “terrorists and gang members”. Insofar as can be gleaned from the notes, the defendant appears to understand that engagement with the court process will offer him the opportunity to raise complaints he may have about the supervision.

15. [18]

    Also relevant to an assessment of the defendant is the fact that he actively participated in the 2024 proceedings before Hamill J through his legal representative. At that hearing, conducted at a time when the defendant was still in custody, the plaintiff sought a continuing detention order (“CDO”), and in the alternative, an ESO. The application for the CDO was successfully resisted. With respect to the State’s alternative case for an ESO, Hamill J observed that “the parties were in conflict over several conditions” (Farzad (Final) [2024] at [119]). As clearly emerges from his Honour’s reasons, the hearing extended across three days, and the defendant’s legal representative successfully opposed several of the initially proposed conditions and achieved amendments to others.

16. [19]

    Taking all of these matters together, I am comfortably satisfied that the defendant has had adequate notice of the proceedings, that he understands the nature of the proceedings and the potential consequences of orders being made in his absence. With that knowledge, the defendant has chosen not to attend nor to instruct lawyers to appear on his behalf.

17. [20]

    In so finding, I have not overlooked that the defendant’s mental health and personality pathology may be complicating his capacity to necessarily act in his own best interests. However, the defendant cannot be compelled to attend or to instruct Legal Aid to appear on his behalf. The rules of procedural fairness require that a party be given a reasonable opportunity to present his case, but do not impose upon the Court “the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled”: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (per Deane J); see also Re Association of Architects of Australia; ex parte Municipal Officers Association of Australia [1989] HCA 13; 63 ALJR 298 at [19] (per Gaudron J). The only alternative to continuing in the defendant’s absence would be to adjourn the proceedings. There is no evidence suggesting that an adjournment would lead to any different outcome with respect to the defendant’s participation; indeed, the evidence is to the contrary.

18. [21]

    The defendant’s current ESO will expire on 23 April 2026. In the absence of an ISO, the defendant will no longer be subject to supervision. The State’s case is that in the absence of supervision, the defendant presents an unacceptable risk of committing a serious sexual offence. Considerations of community safety weigh strongly in favour of the State being entitled to have that case determined (one way or the other) before the expiry of the existing supervision orders.

19. [22]

    In circumstances where the Court determines to proceed in the defendant’s absence, the Court must nevertheless investigate the merits of the matter: United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408; 198 FCR 514 at [44]. In the present case that means that the Court, having considered the material relied upon, must be satisfied of the statutory requirements for the making of the orders sought by the plaintiff, on the basis and to the standard required by the authorities.

20. [23]

    For the reasons set out above, I find that it is in the interests of justice that the preliminary hearing proceed in the absence of the defendant. On 25 March 2026 I directed accordingly.

The evidence on the application

1. [24]

   On the substantive application, the plaintiff read affidavits affirmed by Lucy Nicholls on 19 December 2025 and on 9 March 2025. The bundle of documents annexed to the 19 December 2025 affidavit is marked LN-1. The Court was informed that the plaintiff intended only to rely upon selected materials from LN-1 in the preliminary hearing. In accordance with procedural directions made by Yehia J in these proceedings, a folder of those selected documents and an index identifying the documents has been provided to the Court and was admitted into evidence as a separate tender bundle.

2. [25]

   The plaintiff provided written submissions dated 9 March 2026. Additionally, the Court heard short oral submissions principally responding to questions or matters of clarification.

3. [26]

   As a broad overview, the plaintiff relies upon the same factors which Hamill J found in 2024 gave rise to an unacceptable risk and which his Honour held warranted the imposition of an ESO. The plaintiff asserts that those factors remain., In reliance upon those, alongside other factors addressed in the more recent material, the plaintiff submits that the defendant remains at an “unacceptable risk” of committing another “serious sex offence”. At this preliminary hearing the plaintiff seeks orders pursuant to s 7(4) of the Act for the appointment of experts, and an ISO pursuant to s 10A. The conditions that the plaintiff seeks be attached to the ISO are largely similar to the conditions to which the defendant is presently subject.

Factual background to the Application

1. [27]

   The background material records that the defendant was born in Iran, and first emigrated to the Unites States of America with his parents at approximately one year of age. He later emigrated from the United States to Australia with his mother and brother at approximately 15 years old. He is now approximately 59 years of age. He suffers several health conditions including cardiac difficulties and associated conditions, and has a complex mental health history including diagnoses of psychotic illness and antisocial personality disorder. He has limited familial and social supports, although he has access to support workers though the NDIS. He has a lengthy and varied criminal history which includes sexual offending, possession of child abuse material, intimidation and various breaches of court orders.

2. [28]

   In his 2024 judgment, Hamill J described the defendant’s criminal history including the particular “serious offences” giving rise to the ESO application. It is convenient to extract the relevant passages from his Honour’s judgment where those matters are set out:

3. [29]

   On 3 October 2023, following a preliminary hearing conducted on that same date, Dhanji J made orders that the defendant attend examinations by two court appointed medical practitioners; and an interim order for the defendant’s continuing detention for a period of 28 days; and associated orders: State of New South Wales v Farzad (Preliminary) [2023] NSWSC 1207 at [84]. In addition to extensive background material and various risk assessment and risk management reports, Hamill J considered the evidence of the two court appointed expert psychiatrists, Dr Gordon Elliott and Dr Calum Smith. The defendant has an extensive and complex psychiatric history. The effect of the evidence of the court appointed experts was summarised by his Honour as follows:

4. [30]

   Justice Hamill was satisfied, based on the whole of the evidence (not all of which is extracted in this judgment), to a “high degree of probability” that the defendant posed an “unacceptable risk” of committing a serious sexual offence if not subject to an order under the Act: Farzad (Final) [2024] at [95]. A significant aspect of the evidence with respect to whether the appropriate order was for continuing detention or supervision in the community concerned the defendant’s mental illness diagnoses, need for treatment (including anti-psychotic medication, which he was not receiving at that time) and the expert opinions concerning the defendant’s (in)ability to comply with supervision conditions if he remained untreated or non-compliant with his medication regime.

5. [31]

   On 15 March 2024, Hamill J made an ESO pursuant to s 17(1)(a) of the Act which commenced on 24 April 2024 after the defendant was released from custody.

6. [32]

   On 18 April 2024, the Mental Health Review Tribunal made a forensic community treatment order (“FCTO”), which was converted into a CTO on 20 March 2024 after his release from custody. The present CTO will expire on 30 April 2026 if not extended. The defendant is prescribed an anti-psychotic administered by depot injection under the CTO. The defendant does not agree with the need for this treatment and has repeatedly requested that this be reduced or ceased. There are indications in the casenotes that his treating team are considering trialling a cessation of this medication.

7. [33]

   The defendant has not been convicted of nor charged with any further offences during the almost 2-year term of his ESO. He has not been charged with a breach of his supervision orders and has been described as compliant with supervision. However, he remains unwilling or unable to meaningfully engage with supervision in terms of treatment and intervention, and unmotivated to participate in prosocial activities.

8. [34]

   The plaintiff relies upon a report dated 25 August 2025 and prepared by Ms Alex Hill, acting senior psychologist, Risk Management Programs, Corrective Services NSW (“risk assessment report”), which is discussed in more detail below. Ms Hill assesses the defendant as posing a “well above average” risk of sexual recidivism and considers that it is the compulsory supervision and enforced compliance with medication which has contained his risk of re-offending during the past two years.

The legislative scheme

1. [35]

   As already observed, this is a preliminary hearing conducted under s 7(3) of the Act. Section 7(4) provides that 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, the Court must make orders appointing the relevant experts to conduct examinations and furnish reports to the Supreme Court and directing the defendant to attend those examinations. If, on the other hand, the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an order, it must dismiss the application: s 7(5).

2. [36]

   Section 5B(a)–(c) provides for a number of threshold requirements before an order may be made in respect of a person. As was also found by Dhanji J in 2023 and Hamill J in 2024, there can be no issue based upon the matters in the supporting documentation that the defendant satisfies s 5B(a) of the Act. That is, he is an offender as defined in 4A and has served a sentence by way of full-time custody for a “serious offence” as defined in ss 4 and 5A. The defendant is a “supervised offender” within the meaning of s 13B. This requirement is satisfied on the basis that the defendant is subject to the 2024 ESO imposed by Hamill J.

3. [37]

   Following satisfaction of the threshold requirements of s 5B(a) –(c), an ESO will be justified where the Court is satisfied “to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order” (s 5B(d)). As explained by Hamill J in Farzad (Final) [2024] at [81]:

4. [38]

   The question of whether an “unacceptable risk” is demonstrated is informed by the considerations in s 9 of the Act. Section 9(2) provides that the safety of the community must be the “paramount consideration”. Section 9(3) provides additional matters to which the Court must have regard. The matters that are presently relevant in the defendant’s case are as follows:

5. [39]

   I have taken into account the risk assessment report of 25 August 2025 to which reference has already been made. The defendant declined to be interviewed by Ms Hill and so her report was prepared based upon a file review. The risk assessment report considered both the defendant’s criminal history and mental health history in detail and the following summary necessarily makes reference only to some of that information. In terms of the defendant’s response to supervision under the 2024 ESO, whilst this had been better than his response to earlier periods of community supervision, he had not demonstrated meaningful engagement in the supervision process.

6. [40]

   The defendant has a complex mental health presentation which is complicated by his personality pathology. His anger, hostility and paranoid beliefs appear to reduce when he is appropriately medicated. However, and in Ms Hill’s opinion “concerningly”, the defendant continues to deny the need for anti-psychotic medication and lacks insight into the relationship between his mental health and risk.

7. [41]

   The defendant has a long history of deviant sexual behaviours and continues to demonstrate sexual preoccupation, as well as to minimise, justify or deny his offences. He has not completed offence focused treatment either in custody or during his supervision. The defendant falls within the “well above average” category for sexual offending recidivism. His risk presently appears to be moderated by his restrictions and monitoring as part of his ESO conditions.

8. [42]

   The defendant’s risk is increased by his lack of social supports and low motivation to engage in pro-social activities. The evidence is that except when taken out by a support worker the defendant essentially spends all of his time in his home. In Ms Hill’s view, a better indication of the defendant’s ability to manage high risk situations would be provided were this situation to change.

9. [43]

   The defendant has been consistently resistant to engagement with treatment and risk reduction programs. One reason for this is his asserted belief that he does not require such interventions. The defendant appears to attribute his lack of motivation to engage in self-care and pro-social daily activities to the side effects of his anti-psychotic medication. The defendant also reports a reduction in his sex drive which he attributes to his medication. Behaviour revealing persistent sexual preoccupation has been noted throughout the term of the order, including making sexual comments about female support workers; speaking to a male support worker in prurient terms about strippers and expressing a preference for young girls; complaining that his NDIS provider would only send male support workers and demanding a female support worker to attend, specifically to shower him; and a phone search in February 2026 revealed the defendant had apparently viewed a YouTube video displaying young teenagers dancing. [6]

10. [44]

    Ms Hill concludes that in a scenario where the defendant’s CTO was not extended and his mental health deteriorated, and his supervision conditions were removed, she would hold “significant concerns with [the defendant’s] ability to effectively identify and manage his risk factors”.

11. [45]

    I have had regard to the results of statistical analyses within the risk assessment report as well as other similar material. Ms Hill assessed the defendant applying a number of actuarial tools including the Static 99-R and the STABLE 2007 (which measures dynamic risk factors). The defendant’s scores place him in the well above average risk category.

12. [46]

    I have taken into account the Community Corrections Risk Management Report dated 22 September 2025. The author expresses the opinion that the defendant’s response to supervision “remains stagnant”, due to poor mental health and lack of motivation. A referral to Community sex offender programs was closed in June 2024 as the defendant’s mental health was not stable enough for him to engage meaningfully and constructively with the sessions. He was unable to continue with sessions with the Treatment and Rehabilitation Centre due to what was described as a “lack of motivation to address his offending and TRC not being in a position to address risk management”. He was re-referred to Community sex offender programs for individual risk management sessions in February 2025, but in June 2025 his engagement was suspended until he could demonstrate increased motivation and “was able to meet basic needs, such as addressing hygiene”. The Community Corrections report considers that as the defendant is yet to meaningfully engage in risk-related interventions, he remains a risk to the community if supervision were to cease.

13. [47]

    As noted, the defendant is the subject of a CTO, which whilst it currently expires in April 2026 might be expected to be extended. The defendant’s present compliance with a medication regime under the CTO appears to play a significant role in risk reduction. However, as the plaintiff submits, the defendant has repeatedly expressed resistance to anti-psychotic medication and has a history of non-compliance. In addition, there is evidence that reduction or cessation of the anti-psychotic medication is being considered. Due to its different purposes, procedures to address non-compliance with a CTO are complex and may take some time (see ss 58–64 of the Mental Health Act 2007 (NSW)). In effect, it is the plaintiff’s contention that given the apparently critical relationship between compliance with medical treatment and the defendant’s risk, continuation of a CTO alone without the ESO would be an insufficient measure to reduce the likelihood of further offending.

14. [48]

    As set out above, the defendant has a very poor record of compliance with supervision in the community. He has been convicted of breaching his obligations under the Child Protection Register. The offences for which he was most recently incarcerated included offences of stalking, harassing and intimidating a community corrections officer.

15. [49]

    As also discussed above, while the defendant has not breached his current ESO, he has made no positive progress with respect to supervision by way of engagement with treatment programs. The extent of the defendant’s capacity to ever respond to these types of interventions in a meaningful way is likely to be addressed by further expert opinion.

16. [50]

    I have taken into account these matters as set out above at [28] - [29].

Determination

1. [51]

   In Farzad (Final) [2024] at [83], Hamill J found that the defendant’s 2004 offences:

2. [52]

   The defendant’s lengthy criminal history, including persistent offending in breach of court orders, combined with his lifelong complex mental health presentation, lack of insight and persistent preoccupation with sexually deviant beliefs and behaviours, create an ongoing risk of further serious sexual offending. The defendant has not re-offended during the period of supervision. Nor has he effectively engaged with treatment or interventions nor gained insight into his own risk factors. The evidence presently available supports the position advanced by the plaintiff, that it is the fact of supervision under the ESO that is presently operating to reduce the defendant’s risk.

3. [53]

   I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the courts satisfaction to a “high degree of probability” that the defendant poses an unacceptable risk of committing a serious sexual offence if not kept under supervision by way of an ESO. I therefore grant the relief sought.

4. [54]

   The plaintiff has provided a Schedule of Proposed Conditions which are substantially the same as the conditions attached to the existing ESO. The proposed amendments are minor and provide clarity but do not alter the substance of the conditions. The plaintiff submits that where the defendant is not present, and where updated expert reports are not yet available, the appropriate course is to order an ISO with the same conditions as those to which the defendant is already subject. I accept that this approach is appropriate to avoid confusion or unfairness. At the final hearing, if an ESO is to be made, the appropriateness of individual conditions can be revisited with the benefit of expert opinions.

Final Orders

1. [55]

   Accordingly, I make the following orders:

   1. (1)

      An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW):

   2. (2)

      An order: