State of New South Wales v Azar (Preliminary)

1. [1]

   HIS HONOUR: By summons filed on 15 July 2025, the State of New South Wales (the plaintiff) sought interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). Mr Azar (the defendant) is subject to an order made by the Guardianship Tribunal on 4 June 2025 for the guardianship of the defendant for a period of 12 months. Accordingly, the defendant participates in these proceedings through a member of the Guardian ad Litem Panel as his tutor, Ms Barbara Ramjan. She and the defendant are not otherwise known to each other.

2. [2]

   Orders were sought for the appointment of two psychiatrists and/or psychologists to examine the defendant and furnish their reports to the Court and directing the defendant to attend their examinations (ss 7(4) or 15(4) of the Act). The plaintiff also sought an interim supervision order (an ISO) for a period of 28 days, subject to proposed conditions (ss 10A, 10C and 11 of the Act). Orders are also sought forbidding access to the Court file by a non-party without prior notification to the parties, so as to allow them an opportunity to be heard. On 4 September 2025 I made the interim orders sought by the plaintiff and imposed conditions to the ISO. These are my reasons for those orders, and conditions.

3. [3]

   The plaintiff seeks final orders that the defendant be the subject of an extended supervision order (ESO) for a period of 3 years subject to the proposed conditions (ss 5B, 9(1)(a) and 11 of the Act). As is usual when an ESO is sought, a Schedule to the summons set out the proposed conditions of that order.

The defendant’s current status

1. [4]

   At the time of the preliminary hearing, the defendant was subject to an ESO that was made by Davies J on 17 March 2021 for a period of 3 years, commencing on that date: State of New South Wales v Azar (Final) [2021] NSWSC 216. The operation of the ESO was suspended on four occasions while the defendant was detained in custody or serving sentences of imprisonment for breaches of the conditions attached to the ESO. The ESO expired on 4 September 2025.

The relevant statutory provisions and principles

1. [5]

   Section 7(4) of the Act 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, it must make orders of the type sought by the plaintiff for the appointment of forensic experts. If the Court is not so satisfied, it must dismiss the application pursuant to s 7(5) of the Act.

2. [6]

   Accordingly, although this was a preliminary hearing, it was necessary to evaluate whether the supporting material was sufficient to justify the making of an ESO, pursuant to the relevant statutory tests.

3. [7]

   Three prerequisites for the making of an ESO are required by s 5B of the Act. Section 5B subsections (a), (b) and (c) concern aspects of the defendant’s status as an inmate or supervised offender in the community. Those requirements were not contested, and I was independently satisfied that they had been met.

4. [8]

   That left the key provisions of ss 5B(d) and 10A(b) for consideration, namely, whether it appeared to the Court that the matters alleged in the supporting documentation would, if proved, satisfy the Court:

5. [9]

   In the context of the offending and behavioural history of the defendant, it appeared to be common ground that the concern was whether the defendant would commit a serious violence offence, as defined in s 5A of the Act:

6. [10]

   Section 5D of the Act provides that the Court is not required to determine that the risk of an offender committing a serious offence is “more likely than not” in order to determine that there is an “unacceptable risk” of the person committing such an offence.

7. [11]

   Section 9(3) of the Act sets out the matters the Court must have regard to in determining whether to make an ESO. The effect of s 7(4) is that these matters are also relevant to an application for an ISO.

8. [12]

   Section 9(2) of the Act provides that, in determining whether to make an ESO, “the safety of the community must be the paramount consideration of the Supreme Court”, consistently with the stated primary object of the Act, which is “the safety and protection of the community”: s 3(1). A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).

9. [13]

   In making its determination at a preliminary hearing, the Court does not weigh the supporting documentation or predict the result at the final hearing: see Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98], which dealt with comparable provisions in an earlier version of the Act.

10. [14]

    It is apparent from the terms of s 10A that the Court has a discretion to make an ISO, even if all statutory requirements are met: “The Supreme Court may make an order for the interim supervision of an offender” (emphasis added).

11. [15]

    As mentioned, the defendant accepted that the statutory preconditions for the making of an ESO (s 5B subs (a)-(c) of the Act) were satisfied. However, the defendant contested the proposition that the Court would be satisfied that the offender poses an unacceptable risk of committing another serious violence offence if not kept under supervision pursuant to an ESO (s 5B(d) of the Act).

The defendant’s background

1. [16]

   A joint statement of agreed facts (the agreed facts) was tendered into evidence, pursuant to cl 26(1) of the Supreme Court Practice Note SC CL 12. Its contents, as to the defendant’s personal background and criminal offending, are as follows:

2. [17]

   The agreed facts cavass the contents of eight expert reports, as follows:

Evidence not canvassed in the agreed facts

1. [18]

   A report by a former psychologist of the defendant, Rebecca Mallia-Blanco, dated 12 March 2025, was admitted into evidence on behalf of the defendant. It is apparent from its content that it was prepared for a hearing in the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) concerning an application for a financial management order that was resisted by the defendant. Ms Mallia-Blanco was of the view that the defendant was capable of managing his financial affairs, submitting that “It is crucial that his achievements in self-management be recognised as a positive trajectory towards full independence.” I note that a financial management order was not made.

2. [19]

   A report, in the form of an affidavit dated 22 August 2025, by Kelli Grabham, who is a High Risk Offender Applications and Operational Governance Officer in the Extended Supervision Order Team (the ESO Team) in Blacktown, was read. Ms Grabham noted three occasions when the defendant had breached his ESO conditions and the ESO Team exercised their discretion to proceed by way of a warning rather than a criminal complaint. Those occasions were: on 16 October 2023, he consumed alcohol; on 19 October 2023 he left his accommodation contrary to his curfew, having been refused permission to do so; and on 17 February 2025, he wrote to a person in custody. Ms Grabham also commented on the proposed conditions of an ISO.

Consideration and determination

1. [20]

   As noted, the defendant submits that the Court would not be satisfied that the material before the Court, if proved, would justify the making of an ESO; that is, it would not justify a finding “to a high degree of probability” that the offender poses an unacceptable risk of committing another serious violence offence if not kept under supervision: (ss 5B(d) and 10A(b) of the Act).

2. [21]

   As noted earlier, the current ESO made by Davies J on 17 March 2021 was suspended on four occasions, comprising a total period of 537 days while the defendant was in prison. As noted in the agreed facts, his behaviour has included unprovoked death threats against a sibling, a common assault against an uncle on 12 March 2025 and against one of his NDIS service providers on 28 December 2024 and an alleged assault occasioning actual bodily harm on 29 June 2024 against a prison officer that is yet to be finalised.

3. [22]

   All of these incidents were characterised by a sudden loss of control by the defendant of his anger. The alleged assault occasioning actual bodily harm is particularly concerning. According to the police facts, the incident was captured on CCTV. The defendant is alleged to have punched the officer to the head at least 8 times with both closed fists and when the officer fell to the ground, tried to kick him, with his foot brushing the top of the officer’s head. The officer got to his feet and stumbled out of the area. The defendant attempted to follow him, but the officer was able to reach a safe area, and then collapsed and lost consciousness. It is alleged that the officer suffered a concussion, bruising and swelling to his right eye and abrasions under that eye. The defendant is presently seeking a resolution of the matter in court via diversionary orders.

4. [23]

   Although the matter is unresolved and the defendant is pleading not guilty, on the basis of the police facts and the assertion that the incident was captured on CCTV, I afford it considerable weight. The defendant was able to inflict those injuries in the closed environment of a prison, before the officer could extricate himself, and then collapse. Were the defendant to attack someone out of anger in a similar way in an isolated location in the community, where there were no witnesses, the victim lost consciousness and the attack continued, such an attack could be life-threatening. I note that the victim of the defendant’s commission of the index homicide offence was isolated in their home and that it was a relatively spontaneous attack, motivated by anger: R v Kaddour; R v Azar [2017] NSWSC 586 per Mathews AJ at [7] and [32].

5. [24]

   There are some limited signs of progress. Mr Wu, in his ESO completion and Risk Assessment Report dated 11 August 2023, noted that although the defendant remained in the high-risk range of committing further serious violent offences:

6. [25]

   However, Mr Wu’s report, considered as a whole, as noted at [73]–[79] of the agreed facts above, was concerning and gave little ground for confidence that the defendant had made real progress in limiting his risk factors. To a same effect, I note the Risk Assessment Report and supplementary report by Ms Cieplucha, canvassed at [52]–[59] and [61]–[63], the Risk Management Report by Ms Iyer at [60] and [64]–[68] and the supplementary Risk Management Report by Ms Gregg canvassed at [69]–[72]. I take into account that these reports are relatively recent, although the older reports of Dr Pulman (27 January 2021) and Dr Furst (27 January 2021 and 21 February 2021) are still of considerable weight when considered in the context of those later reports.

7. [26]

   For these reasons, I was satisfied that the material before the Court would, if proved, justify the making of an ESO. I was also of the view that there was no basis for an exercise of the Court’s discretion to not make an ISO, and therefore I made an ISO.

Proposed conditions

1. [27]

   The defendant opposed some of the conditions advanced by the plaintiff and proposed variations of others, essentially submitting that any conditions to the ISO should mirror his most recent conditions of parole, which expired on 13 July 2025. Many of the conditions that he opposed were on the basis that they seek to address matters that were not linked to his offending history, particularly the index offence (the relevance submission).

2. [28]

   The plaintiff proposed that the defendant be subject to electronic monitoring. The defendant made a relevance submission: that his prior offending was not tied to a particular location or type of location, such a condition adds to his experience of anxiety and is unnecessary in view of his progress to a lower level of monitoring. The plaintiff submitted that the condition was necessary in order to ensure that the defendant did not go to places of known prohibited drug supply or associate with anti-social peers.

3. [29]

   There is no reason as to why the defendant’s current level of monitoring cannot be maintained. I was of the view that the condition is necessary, at least until updated forensic reports are received and considered by the Court at a final hearing.

4. [30]

   The plaintiff proposes standard schedule conditions that the defendant produce a schedule of his proposed movements “if directed” and that he not vary from his schedule without the prior approval of a DSO or in an emergency. The defendant made a relevance submission and noted the current arrangement, which falls short of what is proposed, is satisfactory. That arrangement was described by Ms Iyer in her Risk Management Report:

5. [31]

   There is no need for the defendant’s current scheduling obligations to change. The proposed conditions provide a higher level of scheduling that may be introduced to meet any variation in the defendant’s level of risk. I was satisfied that the proposed scheduling conditions have the necessary degree of flexibility in the manner in which they have been applied to date and should continue to apply to the defendant.

6. [32]

   The proposal is that the defendant be subject to an evening curfew unless other arrangements are approved by the DSO. The defendant makes a relevance submission: his criminal offending has not been confined to evenings and therefore the condition is unnecessary. The plaintiff submitted that it was necessary to avoid the defendant engaging in drug use or transactions.

7. [33]

   I note the history of the defendant demanding alcohol from his NDIS providers late at night, referred to above at [19]. I was satisfied that without this condition there is a greater risk of the defendant not complying with the conditions concerning the use of alcohol and prohibited drugs, which are considered below.

8. [34]

   The plaintiff proposed that the defendant be obliged to notify the DSO of any visitor “entering or remaining” at his address. The defendant submitted that this condition is “extremely broad, overly restrictive, and difficult to comply with to the extent that it is not clear what it means to “enter and remain”. The defendant submitted as well that it is “also difficult to comply with due to the fact the defendant is in receipt of NDIS support”. The plaintiff responded that it is necessary to ensure that the defendant does not associate with anti-social persons or others he is forbidden from associating with.

9. [35]

   In view of past breaches by the defendant of non-association directions, I considered that the condition is necessary.

10. [36]

    The condition would require the defendant to provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO. In response, the defendant made a relevance submission. The plaintiff maintained that the condition enables a DSO to detect unusual spending patterns that may prompt a check that the defendant is not gambling or using prohibited drugs.

11. [37]

    I note that some of the defendant’s minor violence offences were directed against persons who have rebuffed a request from him for a loan. As well, it makes sense that such monitoring may give rise to reasonable inquiries as to whether the defendant is gambling or purchasing prohibited drugs. I approved the proposed condition.

12. [38]

    The proposal was that the defendant be prohibited from the use of alcohol without prior DSO approval, the use of prohibited drugs or prescription drugs that have not been prescribed, entering any licensed premises (except for cafes and restaurants) and that he submit to drug and alcohol testing.

13. [39]

    The defendant opposed the conditions insofar as they related to alcohol. In the event that the condition was approved, the defendant proposed an addition, to the effect that a non-compliance with the drug provision not be acted upon without a DSO taking into account whether the defendant had disclosed it and what steps he has taken by way of remedying the behaviour with professional assistance.

14. [40]

    In my view, the condition is plainly necessary because it addresses significant criminogenic factors. The note, as agreed, was added.

15. [41]

    The defendant made a relevance submission that gambling is not related to his risk profile. In my view, it is necessary for the defendant to refrain from gambling in view of how he has a pattern of past behaviour of being stressed by financial pressure to the point of spontaneously attacking persons who refuse him a loan.

16. [42]

    The defendant made a blanket relevance submission to all aspects of these conditions. The plaintiff responds that the conditions are necessary:

17. [43]

    I accepted the plaintiff’s submission and approve the condition.

18. [44]

    These proposals are essentially to the effect that the defendant must seek a DSO’s prior approval for any significant change that he proposes to make to his appearance and provide a DSO with the details of any change to his identification. The defendant submitted that the conditions are unnecessary.

19. [45]

    The plaintiff submitted that the conditions are necessary to ensure that the defendant may be monitored. I accepted that submission and approved the proposed conditions.

Orders

1. [46]

   Accordingly, I made the following orders on 4 September 2025: