Supreme Court

New South Wales

Case Name: State of New South Wales v Wilmot (Final)

Medium Neutral Citation: [2019] NSWSC 1276

Hearing Date(s): 4, 5 and 6 September 2019

Date of Orders: 24 September 2019

Decision Date: 24 September 2019

Jurisdiction: Common Law

Before: Lonergan J

Decision: (1) Pursuant to s 17(1)(b) of the Crimes (High Risk

Offenders) Act 2006 (NSW) the defendant is subject to
a continuing detention order for a period of 2 years
commencing on 24 September 2019 and expiring on 23
September 2021.

(2) Pursuant to s 20(1) of the Crimes (High Risk

Offenders) Act 2006 (NSW) a warrant is to issue for the
committal of the defendant to a correctional centre for
the purpose of Order (1).

Catchwords: HIGH RISK OFFENDER – final hearing – application

for continuing detention order and/or extended
supervision order – history of disturbing pattern of
violence and violent sexual offending against
unaccompanied young women – s 21A victim
statements provided – court satisfied to a high degree
of probability that defendant poses an unacceptable risk
of committing another serious offence if not kept in
detention – continuing detention order made –
community safety paramount concern

Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), ss 3,

5B, 5C, 5D, 9, 13B, 17, 18, 20, 21A
Cases Cited: Lynn v State of New South Wales [2016] NSWCA 57
State of New South Wales v Barrie (Final) [2018]
NSWSC 1005
State of New South Wales v Barrie (Second Final)
[2019] NSWSC 1161
State of New South Wales v French (Final) [2017]
NSWSC 1475
State of New South Wales v Jones [2018] NSWSC 459
State of New South Wales v Wilmot (Preliminary)
[2019] NSWSC 776

Category: Principal judgment

Parties: State of New South Wales (Plaintiff)

Wayne Wilmot (Defendant)

Representation: Counsel:
D Kell SC/E Sullivan (Plaintiff)
T McDonald SC/S Climo (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2019/97095

Publication Restriction: Nil

JUDGMENT
1 The defendant is currently 46 years old and is subject to an interim detention
order (IDO) that commenced on 24 June 2019 and was subsequently renewed
on 19 July 2019 (from 24 July 2019), and on 15 August 2019 (from 21 August
2019). The last of those orders expired on 17 September 2019 but was
renewed pursuant to s 18C(2) of the Crimes (High Risk Offenders) Act 2006
(NSW) (“the Act”) to expire at midnight on 25 September 2019.

2 Since he was 14 years old, the defendant has spent almost his whole life in
custody because of his criminal offending.

3 The defendant’s history of offending is set out in paragraphs [34]-[53] of my

reasons in State of New South Wales v Wilmot (Preliminary) [2019] NSWSC
776:
 “[34] The defendant has a history of committing sexual offences against adult
women and, [REDACTED], adult males. The defendant has also committed
other offences of violence against women. Key aspects of the defendant’s
offending history are set out below, in chronological order.
Sexual intercourse without consent and related offences: 20 January 1987
[35] The defendant committed his first recorded sexual offence at just 13 years
of age.
[36] On 20 January 1987, the defendant approached the adult female victim,
RB, from behind as she walked through Minto Park at about 3:30 pm. He
threw her to the ground and made threats to kill her and covered her mouth.
He removed her clothing. During the attack the defendant touched the victim’s
vagina, performed cunnilingus, attempted to engage in penile-vaginal
intercourse, and attempted to place his penis in the victim’s mouth.1 He was
apprehended at the scene, where he stated ‘I’ve…got a problem’ and ‘this is
not the first time I’ve done this’.2
[37] The defendant was subject to a control order, imposed by the Children’s
Court when he committed the offences. He later entered pleas of guilty to
offences of sexual intercourse without consent,3 attempted sexual assault,4
assault with intent to commit felony, namely sexual assault,5 and indecent
assault.6 On 26 March 1987, he was dealt with by Campbelltown Children’s
Court and committed to an institution.
Obscene exposure and related offences: 19 July 1987
[38] On 19 July 1987 the defendant assaulted and robbed a female victim, CR,
of her handbag in a public street in Campbelltown. Before assaulting the
victim, the defendant pulled down his tracksuit pants and exposed his penis to
her. The defendant was charged with offences of common assault, robbery
and wilful and obscene exposure. He was later dealt with by Campbelltown
Children’s Court, on 30 July 1987 (assault and robbery) and 25 February 1988
(obscene exposure) and a control order for two years with conditions imposed
for the assault and robbery, and a two-year probation order imposed for the
wilful and obscene exposure.
Indecent assault: 20 July 1987
[39] On 20 July 1987, the defendant, then aged 14 years old, followed the
adult female victim, HS, as she pushed her 18-month old son in a pram. As the
victim entered an oval near Campbelltown Shopping Centre at about 2 pm, the
defendant approached her from behind. He threw the victim to the ground and
threatened to kill her when she screamed that she was pregnant. He placed
his hand over her mouth and struck her in the face (causing a bloody nose).
He touched her vagina over the top of her pants and attempted to pull her
pants down. The victim’s infant son, who was in his pram, cried. The victim
kept screaming and the defendant desisted and ran away.7 He was charged
with indecent assault and pleaded guilty. On 25 February 1998, Campbelltown

1
RB WS 20.1.1987: EW-1 tab 37.
2
SB WS 20.1.1987 [4]: EW-1 tab 39 p.349-50.
3
Crimes Act 1900, s 61D(1) (as then in force).
4
Crimes Act 1900, s 61F (as then in force).
5
Crimes Act 1900, s 58 (as then in force).
6
Crimes Act 1900, s 61E(1).
7
HS WS 20.7.1987: EW-1 tab 30.
 Children’s Court ordered that he be subject to two years’ probation, to be
supervised by the Department of Youth and Community Services.
Detain with intent to gain advantage, robbery in company, sexual intercourse
without consent (4 counts), receiving and obtaining financial advantage by
deception: 8 September 1988
[40] On 8 September 1988, the defendant, then aged 15 years old, travelled to
Sutherland Railway Station with a female co-offender and male co-offenders.
A plan was formed beforehand to randomly abduct a woman to sexually
assault her.
[41] In the early evening the victim, Janine Balding, exited the station and was
walking to her car. Male co-offenders abducted her at knife point and forced
her into the backseat of her car. The defendant drove the car whilst the victim
was sexually assaulted in the back seat.
[42] The defendant drove to an isolated spot off the F4 Freeway, where the
victim was removed from the car and sexually assaulted further times by the
male co-offenders. The victim was then bound, gagged and thrown over a
fence. She was then dragged screaming for about 100 metres and held under
water in a dam until she drowned. Her naked body was left in the dam. This
was done by the male co-offenders without the defendant’s involvement (he
remained in the car). Some of the victim’s personal items were shared and her
ATM card used to withdraw money later that same day. The defendant was on
bail. He was taken into custody on 10 September 19988.
[43] On 22 March 1990, Justice Wood sentenced the defendant to a total term
of imprisonment of 9 years and 4 months, with a 7 year non-parole period
(NPP). The defendant was released to parole on 16 October 19969.
Robbery: 14 August 1997
[44] On 14 August 1997, the adult female victim,V4, was walking along a street
at night in Ashfield.10 The defendant, then aged 24 years old, ran at the victim
from about seven metres away, pushed her down to the concrete paving and
stole her handbag.11 He was on parole when. he committed the offence. He
later pleaded guilty to robbery. On 9 June 2000, Judge Graham sentenced the
defendant to a term of imprisonment for three years for this offence. His
Honour also sentenced the defendant for other offences.
Common assault: 2 October 1997
[45] On 2 October 1997, the defendant approached the adult female victim,
DV, in a park in Ashfield as she walked her dog. He walked and spoke with her
for a short time. He attempted to kiss her and pushed her shoulders causing
her to fall to the ground. She got up and they left the park and went their
separate ways.12 When interviewed by police, the defendant stated that as he
and the victim walked “she was just talking, like just being so close and…like

8
Indictment and statement of facts: EW-1 tabs 24-25.
9
Wood J ROS 22.03.90: EW-1 tab 27.
10
Graham DCJ ROS 9.6.2000: EW-1 tab 14 p.182-83.
11
In her statement to police the victim alleged the defendant had used a knife which he held to her throat
during the robbery (EW-2 tab 21 [5]-[6], p.162-63) but this was not part of the facts agreed to for
conviction/sentence
12
Statement of facts: EW-1 tab 16 (it is noted the defendant was initially charged with indecent assault – DV
alleged in her statement to police that the defendant pinned her on the ground and attempted to undo her
top and pants: DV WS 2.10.1997: EW-1 tab 17).
 eyes kept wandering on to me…we just laughing…she tried to grab me hand
sort of thing”. 13 He later admitted his guilt for this offence – and it was dealt
with as part of a Form 1 when Judge Graham sentenced him for other
offences on 9 June 2000.
[46] The defendant was released to bail after being charged with the offences
committed on 14 August and 2 October 1997. His parole was not revoked
because of the charged offences.
Detain with intent to gain advantage, sexual intercourse without consent
(3 counts): 2 June 1998
[47] On 2 June 1998 the defendant, then 25 years old, was sitting at
Leightonfield railway station in Villawood at about 6:00am when the 19 year
old female victim, SM, a railway employee, arrived at the station for work. As
the victim unlocked the station office to enter the defendant rushed from
behind striking her to the face. He forced her inside and made her lie on her
stomach, tied her hands behind her back and blindfolded her. He removed the
victim’s clothing and indecently touched her breast area, forcibly performed
cunnilingus on her and forced his penis into her mouth. He ejaculated on her
face, and then rubbed and smeared his semen over her lips and face. He left
her tied up on the floor in the office.14 The defendant was not charged with this
offending until 2004 when a DNA match was identified. He was on bail for the
1997 offences at the time of offending. His parole had expired on 10 January
1998.
[48] On 27 February 2006, Judge Marien sentenced the defendant for offences
of detaining and three counts of sexual intercourse without consent following
pleas of guilty being entered. Judge Marien sentenced the defendant to a total
term of imprisonment of 12 years, with 9 year NPP. Judge Marien remarked
that there were “chilling similarities in the nature of his offending … against
defenceless women”.15 Judge Marien said that he was satisfied, beyond
reasonable doubt, there was a high risk the defendant would re-offend upon
release from custody.
[49] On 1 March 2007, the Court of Criminal Appeal (Sully, Bell and Buddin JJ)
dismissed an appeal against the sentence imposed by Judge Marien.16
Malicious wounding and detain with intent to gain advantage: 29 June 1998
[50] On 29 June 1998 the defendant, whilst still on bail, drove to Glenfield
railway station (alone) and pulled his car up beside the 20-year old female
victim, V3, who was about to exit her parked car to enter the train station.
When the victim opened her driver’s side door he lunged at her, pushing her
into the front passenger seat and thrusting himself into the driver’s seat. A
struggle ensued. The defendant had a knife and suffered cuts to his face in the
struggle. As the defendant looked for the ignition keys, V3 opened the
passenger side door and fled the car. The defendant fled the scene and was
apprehended later that day (and has remained in custody since then). He
denied committing the offence.17

13
The Defendant ROI 06.10.97 A23: EW-2 vol 1 tab 23 pp195-96.
14
Judge Marien ROS 27.2.2006: EW-1 tab 11.
15
Judge Marien ROS 27.2.2006: EW-1 tab 11 p 158.
16
Wilmot v R [2007] NSWCCA 30.
17
Judge Graham ROS 09.06.00: EW-1 tab 14.
 [51] On 9 June 2000, Judge Graham sentenced the defendant for offences
including the detaining of the victim near Glenfield railway station and the
malicious wounding of her, and for the robbery committed on 14 August 1997.
For the offence of detain for advantage the defendant was sentenced to a term
of imprisonment of 6 years, with four years NPP. For the offence of malicious
wounding, the defendant was sentenced to imprisonment for four years. Judge
Graham imposed an effective total term of imprisonment of 9 years, with a 7
year NPP.
Sexual intercourse without consent and indecent assault: [REDACTED]
[52] [REDACTED]
[53] The defendant denied the offences and was found guilty after trial.18 On
27 November 2015, Judge Townsden sentenced to a total term of
imprisonment of 5 years, with 3 years and a 9 month NPP. He is serving the
sentence imprisonment imposed for the sexual intercourse without consent
(Crimes Act, s 61I) – which is a term of imprisonment of four years
(commencing on 27 June 2015 and expiring on 26 June 2019),19 with two
years and a 9 month NPP (which expired on 26 March 2018).”
4 On release to parole in October 1996 the defendant breached his parole by
committing further offences. He robbed a female victim in August 1997 and
assaulted another female victim in October 1997. When released on bail for
that offending, he carried out two other very serious violent and sexual attacks
on two young women just weeks apart in June 1998, leading to further
sentences of imprisonment.

5 [REDACTED].

6 It is against that background that the hearing for final relief pursuant to s 5C
and s 17(1)(b) of the Act proceeded before me on 4, 5 and 6 September 2019.

7 The plaintiff’s primary contention is that a two year CDO should be made,
followed by five years of extended supervision pursuant to s 5B and s 9(1)(a) of
the Act.

8 Alternatively the plaintiff argues, I should at the least make a five year
extended supervision order (ESO) from the date of the expiration of the most
recent IDO. There was no issue taken by the plaintiff that it was also open to
me, at this stage to make the two year CDO sought, without determining
whether the five year ESO should follow.

18
Judge Townsden judgment: EW-1 tab 7.
19
Judge Townsden ROS 27.11.15: EW-2 tab 5.
9 It was not contested by the defendant that the evidence available at final
hearing supports an ESO, and no submission was made that it should be less
than 5 years, although some specific proposed conditions remained the subject
of objection and debate.

10 The defendant’s position was that I would not be satisfied that the defendant
poses an unacceptable risk of committing a serious offence if not kept in
detention.

Legislative scheme
11 The Act commenced on 3 April 2006. The primary object of the Act is to
provide for the extended supervision and continuing detention of high-risk sex
offenders and high-risk violent offenders so as to ensure the safety and
protection of the community: s 3(1). Another object is to encourage high-risk
sex offenders and high-risk violent offenders to undertake rehabilitation: s 3(2).

12 The Court’s power to make a CDO is discretionary. Section 5C of the Act

provides that the Court may make a CDO if four preconditions are made out.
The first three preconditions are that the person must be an offender who is
serving or who has served a sentence of imprisonment for a serious offence
either in custody or under supervision in the community (s 5C(a)), he must be a
detained offender or supervised offender within the meaning of s 13B of the Act
(s 5C(b)), and the application must be made in accordance with s 13B of the
Act (s 5C(c)).

13 The fourth condition under s 5C which comprises the substantive test for
consideration before this Court provides that in order to make a CDO, the
Court must be “satisfied to a high degree of probability that the person poses
an unacceptable risk of committing another serious offence if not kept in
detention under the order”: s 5C(d). Section 5D of the Act provides that the
Supreme 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.

14 It is common ground that in this matter ss 5C(a), 5C(b) and 5C(c) are all
satisfied. The determination of this matter turns on whether s 5C(d) is satisfied.
15 Section 17(1) of the Act which is in Part 3, Division 2 and is headed
“Determination of application for continuing detention order” indicates that the
Supreme Court can determine an application under this Part by making an
extended supervision order or by making a continuing detention order or by
dismissing the application.

16 Section 17(2) provides that in determining whether or not to make a continuing

detention order or extended supervision order, the safety of the community
must be the paramount consideration of the Supreme Court. This provision
serves to emphasise the primacy of the requirement of this Court to exercise its
powers under this Act so as to ensure the safety and protection of the
community.

17 Section 17(4) provides a suitable structure and framework to assess those

factors that I must have regard to as set out in ss 17(4)(b) to (i) (relevantly to
this application), in addition to any other matter I consider relevant. Section
17(4) provides:

17 Determination of application for continuing detention order

…
(4) In determining whether or not to make a continuing detention order or
extended supervision order, the Supreme Court must also have regard to the
following matters in addition to any other matter it considers relevant:
(a) (Repealed)
(b) the reports received from the persons appointed under section 15 (4) to
conduct examinations of the offender, and the level of the offender’s
participation in any such examination,
(c) the results of any other assessment prepared by a qualified psychiatrist,
registered psychologist or registered medical practitioner as to the likelihood of
the offender committing a further serious offence, the willingness of the
offender to participate in any such assessment, and the level of the offender’s
participation in any such assessment,
(d) the results of any statistical or other assessment as to the likelihood of
persons with histories and characteristics similar to those of the offender
committing a further serious offence,
(d1) any report prepared by Corrective Services NSW as to the extent to which
the offender can reasonably and practicably be managed in the community,
(e) any treatment or rehabilitation programs in which the offender has had an
opportunity to participate, the willingness of the offender to participate in any
such programs, and the level of the offender’s participation in any such
programs,
 (e1) if the offender is kept in custody or is in the community (whether or not
under supervision)—any options available that might reduce the likelihood of
the offender re-offending over time,
(e2) whether it is satisfied that the offender is likely to comply with the
obligations of an extended supervision order,
(f) without limiting paragraph (e2), the level of the offender’s compliance with
any obligations to which he or she is or has been subject while on release on
parole or while subject to an interim supervision order or an extended
supervision order,
(g) the level of the offender’s compliance with any obligations to which he or
she is or has been subject under the Child Protection (Offenders Registration)
Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,
(h) the offender’s criminal history (including prior convictions and findings of
guilt in respect of offences committed in New South Wales or elsewhere), and
any pattern of offending behaviour disclosed by that history,
(h1) the views of the sentencing court at the time the sentence of
imprisonment was imposed on the offender,
(i) any other information that is available as to the likelihood that the offender
will commit a further serious offence,
…
18 I will not address consideration s 17(4)(g) because there is no offending
relating to children and thus no obligations resting with the defendant under the
Child Protection (Offenders Registration) Act 2000 (NSW).

19 Senior counsel for the plaintiff submitted that the structure of the Act would
appear to require that the Court first undertake a determination as to whether
an offender poses the relevant unacceptable risk having regard to the relevant
standard, that is, whether it could impose a CDO or an ESO prior to
considering whether or not it should make a CDO or an ESO, having regard to
the factors in ss 17(4) and 9(3) for a CDO or an ESO respectively (PWS [26]).

20 This appears to raise the question dealt with by N Adams J in State of New
South Wales v Barrie (Final) [2018] NSWSC 1005 in paragraphs [23] to [32] of
that judgment. For the reasons set out by her Honour, I am of the view that the
proper test for making of a CDO following the recent amendments in 2017 is
one step rather than a two-step process and, like her Honour, I propose to
approach this application by determining whether s 5C(d) is satisfied, having
regard to ss 17(2) and 17(4) of the Act, noting the identical corresponding
provisions in ss 9(2) and 9(3) of the Act in respect of the making of an ESO.
The evidence
21 In addition to the very substantial amount of documentation tendered on the
preliminary hearing, extensive further affidavit evidence was tendered. The
most significant parts of that new material are:

(1) The High Intensity Sex Offender Program (HISOP) treatment report of
Janelle Holden dated 26 July 2019;
(2) The affidavit of Kelli Grabham dated 3 September 2019 and her
evidence which addressed accommodation options;
(3) The updated Offender Case Note Reports; and
(4) The reports of the court appointed experts, Dr Kerri Eagle, forensic
psychiatrist, dated 9 August 2019 (and her oral evidence on 4 and 5
September 2019) and Jenny Howell, forensic psychologist, dated 9
August 2019 (and her evidence on 4 September 2019).
22 A separate folder of material extracted from historical records was tendered at
the request of the defendant and was said to provide relevant background in
particular informing s 17(4)(h1), and the personal factors the sentencing
judge(s) took into account regarding the defendant’s background.

Section 17(4) considerations

Expert reports of persons appointed by the Court to conduct examinations of the
offender: sections (9)(3)(b) and 17(4)(b)
23 Dr Eagle conducted a two hour clinical psychiatric assessment of the
defendant on 25 July 201920 and a cross-sectional psychiatric assessment
based on “an extensive amount of collateral information” provided to her. Dr
Eagle prepared a detailed 39 page report.

24 Dr Eagle set out the defendant’s current presentation21 and, amongst other
matters, provided a detailed overview of his offending history, including his own
account of offences, contrasted with court and other official records.22 Dr Eagle
also sets out the defendant’s other forensic history (including arson in 1988
and escape incidents in 1990 and 1994),23 institutional misconduct,24 past
psychiatric history and substance use history,25 personal history26 (including

20
Report of Dr Kerri Eagle dated 9 August 2019, at [4], [117], [206.1.1].
21
Ibid at [13]–[18].
22
Ibid at [19]–[24], [42]–[80].
23
Ibid at [81]–[87].
24
Ibid at [88]–[94].
25
Ibid at [37]–[41.
 education and employment,27 relationships28 and childhood behaviour)29
psychosexual history30 and goals.31

25 Under the heading, ‘Mental State Examination’, Dr Eagle noted that the
defendant was cooperative and appeared euthymic (non-depressed
reasonably positive mood).32 Dr Eagle noted significantly to my mind that he
“exhibited cognitive distortions, such as an attributional bias and an external
locus of control”,33 stating:

“Mr Wilmot accepted no responsibility for his offending conduct. He had poor
insight into the factors that might have resulted in his incarceration. He tended
to attribute responsibility for all problematic behaviours to external factors. He
had unrealistic expectations of his ability to reintegrate into the community and
his plans were not goal directed. He did not appear capable of appreciating the
seriousness of his situation and made demands “you’ve got to work with me”
for his release.”34
26 Under the heading ‘Treatment Reports’, reference was made to reports
concerning the defendant’s participation in sex offender programs, including
the use of post program testing using BRS (Burt Rape Scale) in the ‘ESO
Program October 2000’ and subsequently for CUBIT in May 2018. Importantly,
the report of testing in 2012 indicated that his understanding and insight had
not developed:

“Testing using the BRS (Burt Rape Scale) amongst other tests are noted.
Mr Wilmot undertook the BRS on 22 June 2012 and demonstrated the same
cognitive distortions present in 2000, including “if a woman gets drunk at a
party, it is really her own fault if someone takes advantage of her sexually”
[strongly agree]; “when women wear tight clothes, short skirts, and no bra or
underwear, they are asking for sex” [agree]; “if a woman lets a man kiss her
mouth and touch her sexually, she should be willing to go all the way” [strongly
agree]; “most women are sluts and get what they deserve” [agree].”35
27 Under the heading ‘Diagnosis’, Dr Eagle stated her opinion that the defendant
did not show any signs or symptoms of a major mental disorder at the time of

26
Ibid at [95]–[99].
27
Ibid at [100]–[103].
28
Ibid at [104]–[106].
29
Ibid at [107].
30
Ibid at [108]–[111].
31
Ibid at [112]–[116].
32
Ibid at [118].
33
Ibid at [119].
34
Ibid at [120].
35
Ibid at [163], [169].
 interview.36 The defendant‘s cognitive function appeared to be in the low
average range.37 Dr Eagle concluded:

“Mr Wilmot has a poly substance use disorder, in remission in a controlled

environment. He has been reported to have engaged in the use of illicit
substances since 8 years old. Substances have included alcohol, cannabis,
amphetamine and sedatives (benzodiazepines). He has previously sought
prescribed and unprescribed medications to cope with emotional distress. He
is vulnerable to a relapse of his substance use disorder in a less restrictive
environment in the context of increased stress.
Mr Wilmot has a severe personality disorder characterised predominantly by
emotional instability. He would satisfy criteria for an antisocial personality
disorder and borderline personality disorder. …
Mr Wilmot has been reported to demonstrate a number of more severe
personality characteristics consistent with psychopathy, for instance deception,
callousness and manipulation. On an assessment using the Psychopathy
Checklist Revised (PCLR), Mr Wilmot displayed a number of psychopathic
traits including a need for stimulation/proneness to boredom; pathological
lying; conning/manipulation; lack of remorse or guilt; shallow affect;
callous/lack of empathy; parasitic lifestyle; poor behavioural controls;
promiscuous sexual behaviour; early behavioural problems; lack of realistic
long term goals; impulsivity; irresponsibility; failure to accept responsibility for
his own actions; juvenile delinquency; revocation of conditional release; and
criminal versatility. Many Short-Term Marital Relationships was omitted from
the assessment because Mr Wilmot has spent a consider-able majority of his
life in correctional or institutional settings. Mr Wilmot scored 32 out of a
possible 38. When the score is prorated due to the omission of one item,
Mr Wilmot scored 33.7.
The PCL-R was not designed to predict criminal behaviour or assess risk of
violence. However, the PCL-R has been found to be a robust predictor of
criminal behaviour including violence and sexual violence. The PCL-R
provides a dimensional score that represents the extent to which an individual
is considered to represent the “prototypical psychopath.” The higher the score,
the closer the match. An arbitrary “cut score” of 30 has been identified to
classify male offenders as psychopaths. A score above 30 has been rewarded
as a high PCL-R group. The higher the score, the more strongly associated
with criminal recidivism including violent recidivism.
It is not clear whether Mr Wilmot has a paraphilia. The nature of his previous
offending suggests that he may experience sexual arousal in response to the
physical or psychological suffering of others consistent with a sexual sadism
disorder. His poor insight, denial of his sexual offending and lack of
engagement in psychological programs limits an assessment of his sexual
arousal patterns and behaviours. His sexual offending appears to largely occur
in the context of a combination of callousness, distorted attitudes towards
victims (such as women [REDACTED]) and the willingness to use violence to
meet his needs (sexual or otherwise). It is not clear that Mr Wilmot’s sexual

36
Ibid at [176].
37
Ibid at [177]–[178].
 offending is driven by intense sexual urges or deviant sexual fantasies (such
as sadistic sexual arousal).” 38
28 Under the heading ‘Risk Assessment’, Dr Eagle noted that there are “inherent
limitations” in any process of risk assessment, and that “the best evidence
supports a structured professional judgment approach”.39

29 Using the Static 99R, an actuarial risk assessment tool, the defendant scored 9
on assessment, which placed him into a category of high risk/high need
offenders. It was noted by Dr Eagle that “the average 5 year sexual recidivism
rate for a person in that group with a score of 9 is between 32.6% and 52.5%, 9
times out of 10. The overall predicted recidivism rate is 42.2%.”40

30 Using the Stable 2007, another risk assessment tool, the following results are
noted:

“Mr Wilmot demonstrated a number of dynamic risk factors for sexual

reoffending based on this tool with a score of at least 20. He falls within the
highest risk category of offenders. In particular, he has displayed the following
dynamic risk factors: problems with significant social influences (no
established positive influences and potential negative influences); lack of
capacity for relationship stability (no current or previous stable intimate
relationships); hostility towards women (persistent cognitive distortions in
relation to females); general social rejection (no meaningful social contacts or
supports, perceived rejection); lack of concern for others; impulsivity; poor
problem solving skills (unrealistic goals and poor decision making); negative
emotionality (grievances regarding perceived injustices and unfair treatment);
unrealistic expressed intention to avoid sexual activity; high number of sexual
offence victims (at least 7) indicating potential deviant sexual disorder; and
problems cooperating with supervision.” 41
31 Dr Eagle concluded that when the Static 99R score of 9 is combined with the
Stable 2007 score of 20, the defendant is placed in the “very high” risk
category. The average 5 year sexual recidivism rate for a person in that group
is between 24.6% and 57.7%, 9 times out of 10.42

32 Under the heading, ‘Violent Re-offending’, Dr Eagle noted that the defendant
has a substantial loading of historical risk factors associated with violent

38
Ibid at [179], [180], [181], [182], [183].
39
Ibid at [184].
40
Report of Dr Eagle dated 9 August 2019, at [188].
41
As above, at [190], p 27.
42
Dr Eagle’s report states that this means that out of a group of 100 sexual offenders with similar
characteristics, between 24 and 57 would be charged or convicted of a new sexual offence after 5 years in the
community. Conversely, between 76 and 43 would not be charged or convicted of a new sexual offence during
that time period, at [191].
 reoffending including a history of problems with violence, other antisocial
behaviour, substance use, relationships (intimate and family), employment,
major mental disorder (cognitive disorder and mood disturbance), personality
disorder, traumatic experiences, violent attitudes and treatment or supervision
response.43

33 Dr Eagle also noted that over the last six months, the defendant had
demonstrated “a number of persistent clinical factors that have been found to
be associated with violent offending including problems with insight into his
behaviour and offending history; persistent cognitive, behavioural and
emotional instability; and problems accepting and tolerating supervision.”44 Dr
Eagle then noted that future problems with risk management factors have been
associated with an increased risk of future violence, expanded as follows in
terms of the defendant:45

“Mr Wilmot has a number of potential future problems with risk management
based on his current plans for release. Professional services and plans: he
requires assertive psychological monitoring and support to ensure his
transition into the community but he has refused to engage with a corrective
services (CS) retained psychologist following release. A private psychologist
would be less able to provide the necessary communication and collaboration
with Mr Wilmot’s CS supervision team to ensure effective risk management.
Living situation: due to Mr Wilmot’s extended period of incarceration and his
continued difficulty tolerating rules and restrictions, he will require the highest
level of supported accommodation following his release. He has expressed
concern regarding the restrictiveness of a COSP following release and this
may indicate potential problems tolerating that living environment. However,
independent living will not provide a sufficient level of monitoring or support for
effective risk management in Mr Wilmot’s case. Personal support: Mr Wilmot
has few, if any, personal or family supports in the community. Treatment or
supervision response: Mr Wilmot has never demonstrated the ability to tolerate
supervision without reoffending or breaches in the community. It is highly likely
that he will continue to experience difficulties tolerating supervision. His
attitude towards supervision remains problematic and demonstrates a
tendency to externalise responsibility for his behaviour. Stress and coping: Mr
Wilmot’s pervasive difficulties with emotional regulation combined with a
lengthy period of institutionalisation suggest that he will have significant
difficulties coping with the anticipated challenges of reintegrating into the
community.46

43
Report of Dr Eagle dated 9 August 2019, at [193].
44
Ibid at [195].
45
Ibid at [197].
46
Ibid at [197].
34 In terms of a ‘Risk Formulation’, Dr Eagle referred to the defendant having
engaged in repeated sexual and violent offending from adolescence, 47 that he
has displayed a pervasive disregard for social rules and laws from an early
age48 and appears to have repeatedly used violence to achieve his needs. It is
noted that: “[i]t is unclear what specifically drives his sexual offending although
the nature of his offending suggests that he may experience sexual arousal in
response to the pain or suffering of others.”49 Additionally and significantly, Dr
Eagle stated:

“Mr Wilmot has consistently denied responsibility for and/or minimised his
involvement in his sexual offences. He has routinely attributed responsibility
for his behaviour to external events or persons. He has displayed no genuine
capacity for internal reflection and has not been able to demonstrate benefit
from psychological or rehabilitation programs.”50
35 Dr Eagle also stated that as a result of his traumatic and dysfunctional
childhood, the defendant has “never developed a stable self-identity or
awareness and has low self-esteem. He has poor coping skills resulting in
emotional instability and has used a variety of substances to cope with stress
and emotional dysregulation”. Dr Eagle stated:

“Mr Wilmot appears to have developed severe maladaptive personality traits

including callousness, deceptiveness and manipulative behaviours.
Unfortunately, these personality traits are difficult to manage or modify and
they are likely to contribute significantly to his ongoing reoffending risk. His
lengthy incarceration in an institution has further exposed him to an
environment where he has associated with antisocial peers and survival is
perceived as largely dependent on isolating himself or dominating others using
aggression, deception and/or manipulation.
Mr Wilmot’s capacity to change a lifetime of problematic attitudes, traits and
behaviours as he reintegrates into the community is uncertain. Any attempt at
reintegration will need to be undertaken with the highest level of monitoring
and support available in order to reduce his risk of reoffending.”51
36 In addressing specific questions raised in the qualifying letter from the Crown
Solicitor’s Office, Dr Eagle provided the following opinions:

(1) As to whether the defendant meets the diagnostic criteria for any
psychiatric or psychological condition:

47
Ibid at [198].
48
Ibid at [199].
49
Ibid at [200].
50
Ibid at [201].
51
Ibid at [204]–[205].
 “Mr Wilmot has a complex presentation and has attracted a number of
different diagnoses, including schizophrenia. On the information
available Mr Wilmot does not appear to satisfy a diagnosis of
schizophrenia. However, it would be of benefit that he be reassessed
by a psychiatrist in future if he appeared to display signs or symptoms
of psychosis, including odd behaviours, illogical thought processes,
auditory hallucinations or delusions.
The available information suggests that Mr Wilmot has a low average
level of cognitive function, a severe personality disorder and a
substance use disorder in remission in a controlled environment.
Mr Wilmot’s personality traits are primarily characterised by emotional
instability with prominent irritability and aggressiveness; interpersonal
and relationship deficits; irresponsibility; callousness; a reckless
disregard for the safety of others; deceitfulness; and a disregard for
social norms or lawful behaviours. He has displayed features of a more
severe personality disorder, psychopathy, discussed further above,
reflecting a high number of behavioural and affective traits associated
with a psychopathic personality style.
Cognitive function and personality disorders are pervasive and
enduring by nature. It is unlikely that Mr Wilmot’s personality traits
would change or modify in response to psychosocial interventions,
particularly given his poor response to previous psychological
programs or treatment.”52
(2) As to whether the defendant poses a risk of committing a further serious
sex offence (as defined in s 5 of the Act), Dr Eagle stated:
“Mr Wilmot is, in my view, at a substantially elevated risk of committing
a further serious sex offence based on a structured risk assessment
utilising tools developed on the basis of the available research.” 53
(Emphasis added).
The level of risk and factors contributing it are described as follows:

“Mr Wilmot is in a group of offenders with shared characteristics who

are at the highest risk of sexually reoffending. The factors contributing
to that risk include static factors such as Mr Wilmot’s previous pattern
of sexual offending; and dynamic factors such as his attitudes and
cognitive distortions regarding women; a lack of concern for others; his
negative emotionality (perceived injustices); a lack of capacity for
relationship stability; poor problem solving skills; impulsivity; absence
of positive social supports and susceptibility to negative influences;
and his attitude to supervision.”54 (Emphasis added).
(3) As to risk factors that might change or fluctuate over time and how such
factors could be influenced, Dr Eagle noted that:
“Mr Wilmot’s risk factors have been stable for a long time and arise
primarily as a result of a severe personality disorder and psychological
vulnerabilities originating from his childhood and early adult

52
Ibid at [206.2.1]–[206.2.4], p 30.
53
Ibid at [206.3], p 30.
54
Ibid at [206.3.1], p 31.
 experiences. His static risk factors (such as his pattern of offending)
will not change and represent a baseline level of risk. However, his
dynamic risk factors may increase or reduce in certain
circumstances.”55
(4) The results of the Static 99R and Stable 2007 place the defendant in the
“very high” risk category.56
37 Whilst it is no longer part of the requirement before making a CDO to assess
whether the defendant’s risk could be managed by an ESO, observations by Dr
Eagle as to her assessed rationale for difficulties in that regard are relevant to
inform the unacceptable risk test under s 5C(d), the key issue in this case. In
this regard Dr Eagle stated:

“Mr Wilmot’s personality traits and persistent attitudes to supervision will make
it difficult to effectively manage his risk in the community, even with the
comprehensive supervision regime and restrictions available under an ESO.
Mr Wilmot has continued to refuse to accept any responsibility for his offending
behaviours. He has denied, minimised or justified his offending conduct. He
has continued to express a callous disregard for the welfare of victims. He has
made statements indicating a lack of acceptance of supervision, for instance
“there is no point putting a tight leash on me.” He has displayed no insight into
his psychological problems or behaviours.
Even comprehensive supervision and monitoring regimes, such as provided
under an ESO, rely on voluntary cooperation and participation (whether due to
genuine motivation, deterrence or otherwise) to some extent in order to
effectively manage risk. GPS monitoring will not prevent reoffending. It has
been felt to reduce recidivism by providing a deterrent effect and/or assist with
compliance monitoring. Extensive coordinated and individualised supervision
may be able to identify early warning signs; at risk behaviours or an at risk
mental state/cognitions. Unfortunately, Mr Wilmot has persistent problematic
cognitions, behaviours and other dynamic risk factors in custody that give rise
to a significantly elevated risk of reoffending combined with a reluctance to
address those cognitions and behaviours. In view of Mr Wilmot’s personality
traits and lack of insight, deterrence is not likely to be sufficient to overcome
his dynamic risk factors and reduce his reoffending risk.” 57 (Emphasis added).
38 As to whether anti-libidinal medication is recommended as a means of
managing any risk of re-offending, Dr Eagle stated that it is not clear whether
the defendant has a paraphilia, and that on the available information, she was
“… unable to form a reliable opinion as to whether prescription of an anti-
libidinal medication was likely to reduce Mr Wilmot’s risk of reoffending or

55
Ibid at [206.3.2], p 31.
56
Ibid at [206.4]–[206.4.2], pp 31-32.
57
Ibid at [206.5.1]–[206.5.2], p 32.
 problematic sexual behaviours.”58 In any event the defendant also indicated
that he would not be willing to take anti-libidinal medication at this stage.59

39 On the question of duration of a CDO, although clearly a matter for the Court,
not for Dr Eagle, Dr Eagle raised some matters that may be thought to point
away from the Court imposing a CDO:

“There is limited accepted benefit from a psychiatric and psychological

perspective for the ongoing detention of Mr Wilmot. Psychological
interventions in prison have been shown to have limited benefit in reducing
recidivism in sexual offenders. Cognitive behavioural and multi-systemic
treatments in the community have demonstrated some reduction in recidivism.
Individualised approaches to treatment have been found to be more effective.
Mr Wilmot has not successfully engaged in previous psychological
interventions or programs.” 60
“If Mr Wilmot were to remain incarcerated, it is recommended that he receive
individualised psychological interventions in an attempt to engage him and
develop a tailored and individualised risk management plan for his release. It
may be of benefit for individual psychological sessions to be conducted by a
psychologist who would continue to work with Mr Wilmot following his release
to help facilitate the development of a therapeutic relationship and continuity of
care. Prior to release, Mr Wilmot would benefit from a trial of day leave once
he has demonstrated a period of more effective emotional and behavioural
control. This would enable a more gradual transition into the community and
enable an assessment of Mr Wilmot’s capacity to tolerate a less restrictive
environment and exposure to the community.” 61
40 The evidence now available suggests that this part of Dr Eagle’s opinion has
been recently actioned. There is evidence that the defendant has attended
three one-on-one sessions in July 2019 with a staff psychologist with a view to
that continuing.

41 Ultimately, Dr Eagle concludes:

“As indicated, I have concerns about Mr Wilmot’s ability, at this stage, to

comply with an ESO and address factors associated with his reoffending risk
in the community. It is acknowledged that continued incarceration would
incapacitate Mr Wilmot in terms of his reoffending risk. I am unable to provide

58
Ibid at [206.6]. See also [206.6.1] and [206.6.2] (pp 32-33) as to the issues relating to anti-libidinal
medication, including the Dr Eagle’s opinion that the defendant would need a comprehensive assessment and
ongoing monitoring by a forensic psychiatrist with experience in the prescription of anti-libidinal medication to
access the treatment, as well as baseline investigations to ensure he did not have any medical contra-
indications.
59
Ibid at [206.6.3], p 33.
60
Ibid at [206.7], p 34.
61
Ibid at [206.7], p 34.
 any opinion or recommendation as to the appropriateness of a CDO or the
duration of any ongoing detention.” 62
42 Dr Eagle explained the reason for these remarks:

“Q. You indicated on the last and you referred to various things there and you
stated in the last sentence,
“I am unable to provide any opinion or recommendation as to the
appropriateness of a CDO or the duration of any ongoing CDO."
Are you able to tell the Court as to why you are unable to provide such an
opinion?
A. Yes, I am an psychiatrist and, from a psychiatric or psychological point of
view, custodial settings are not optimal settings for rehabilitation. Rehabilitation
programs in custody don't have evidence for significant effectiveness in terms
of reducing re offending; and there are other roles for incarceration obviously,
incapacitation and the protection of the community, but it's not appropriate
professionally or ethically, in my view, for me to comment on the
appropriateness or otherwise of a community treatment order in that
respect.”63
…
“A. But the professional body that regulates the code of conduct and the
behaviour of psychiatrists indicates that we should remain impartial when it
comes to decisions that are largely considered political or legal, and we should
be focusing on interventions or treatments that are relevant to optimising a
patient's rehabilitation treatment capacity function. So this decision per se
would not be something that would be consistent with what the role and
objectives of a psychiatrist from the College's view.
Q. Yes?
A. That is my interpretation anyway.
Q. In declining or indicating that you are unable to provide any opinion or
recommendation, is it the position that you feel constrained by that ethical
consideration to which you have referred?
A. Yes.
Q. Rather than saying that the answer is one way or the other?
A. Yes, I don't have an answer one way or the other in relation to that, yes.
Q. As you said, it is a matter for the Court?
A. It is a matter for the Court.”64
43 Dr Eagle explained the relevance to the issue of the risk posed by the
defendant of his denial and minimisation of his past offending this way:

“A. It is extremely relevant to risk management, so it is a risk factor in terms of

the risk of re-offending, but it is also relevant to risk management. If someone

62
Ibid at [206.7], p 34.
63
T47.34-49.
64
T48.6-26.
 denies or refuses to accept responsibility for their behaviour then they have no
starting point from which they can change their behaviour, they are not
prepared to even discuss what might have given rise to the behaviour, they
won't engage in interventions or strategies that reduce the risk of that
behaviour occurring in future, and at the extreme end there is nothing that
stops them from engaging in that behaviour again because they are actually
refusing to accept responsibility for the behaviour in the first place. So there
are no internal barriers or inhibitions placed on them re-engaging in that
behaviour.”65 (Emphasis added).
44 I found Dr Eagle’s evidence to be focused, relevant, carefully considered and
of great assistance to the Court.

45 Ms Howell, forensic psychologist, assessed the defendant on 29 July 2019.

She described the limitations inherent in the statistical assessment tools such
as Static-99R and dynamic risk factor testing such as Stable-2007.66 She
assessed the defendant as being in the highest category for future charging or
conviction of a further sexual offence and at a level perceptibly higher than the
risk associated with a typical offender. On the Stable-2007, Ms Howell found
the defendant at a high level of dynamic needs relative to other male sex
offenders.67 He was also in the highest level of risk of committing a further
violent offence on the VRAG-R.68

46 Ms Howell was asked to assess whether the defendant poses a risk of

committing a further serious sex offence. In addition to the reference to the
Stable-2007 and Static-99R assessments, which placed him in the well above
average risk level for committing a further serious offence, Ms Howell made
reference to certain factors identified by the Risk for Sexual Violence Protocol
(RSVP). She described these as:

“…identified dynamic risk needs including deviancy; minimal meaningful

relationships; social isolation; trauma history; past problems with substance
abuse and alcohol consumption; and current institutionalisation. Mr Wilmot’s
sexual offending history is chronic in terms of frequency, persistence and
diversity and includes offences committed in the community and in custody.”69
47 Ms Howell also made reference to the defendant being:

“…vulnerable to life stressors, particularly in relation to intimate relationships

and close family relationships, and while they are not specifically associated

65
T50.47-T51.7.
66
Report of Ms Howell dated 9 August 2019, at p 11.
67
Ibid, at p 11.
68
Ibid, at p 12.
69
Ibid, at p 14.
 with the risk of sexual violence, they are considered risk markers and may
have had a causal role in Mr Wilmot offending behaviour.
Risk is dynamic and prone to fluctuation in response to personal and
environmental factors. Mr Wilmot’s risk may abate over time as he ages and
maintains a stable community life. Alternatively, his risk may escalate in the
event that he is unable to assimilate into the community and achieve his goals
of independent community housing and full-time employment; and he returns
to alcohol and substance abuse on release.”70
48 Ms Howell offered the view that the defendant’s risk of recidivism can be
managed effectively in the community under an ESO. Some weight seems to
have been placed by her upon the defendant’s statement to her that he does
not want to return to custody and is willing to abide by the conditions of an ESO
in order to remain in the community.71

49 Although maintaining her view that the defendant’s risk can be managed on an
ESO, in answer to a question as to the appropriate duration of a CDO, noting
that the statutory maximum of the duration of a CDO cannot exceed five years,
Ms Howell said this in her report:

“However, if it were determined that his risk of committing a serious sex

offence could not be managed in the community it is my view the appropriate
duration of a CDO should not be less than two years. This would allow Mr
Wilmot time to re-engage in and complete the HISOP program to a satisfactory
level which is protective.
A salient risk factors for further offending is incomplete treatment. It is
concerning that Mr Wilmot was assessed as unwilling to participate in the
custody based treatment program and there remains a level of distrust
regarding his motivation to change.”72
50 There were some puzzling aspects in Ms Howell’s evidence. She was asked
about what she meant on page 14 of her report where, in the context of factors
identified by the RSVP test, Ms Howell wrote:

“Mr Wilmot’s sexual offending history is chronic in terms of frequency,

persistence and diversity and includes offences committed in the community
and in custody”73
In her evidence in chief Ms Howell answered as follows:

“Q. At paragraph 96 of your report, so at page 14, at about the middle of the
page you make reference to the RSVP?
A. Yes.

70
Ibid, at p 14.
71
Ibid, at p 16.
72
Ibid, at pp 16-17.
73
Ibid, at p 14.
 Q. And then in the second sentence you describe Mr Wilmot's sexual offending
history as chronic?
A. Yes.
Q. In terms of frequency?
A. Yes.
Q. And that's a reference to the number of offences that he has committed?
A. Yes.
Q. Over many years?
A. Yes.
Q. Persistence?
A. Yes.
Q. And is that a reference to the fact that he has continued to keep offending,
as a matter of history, after he has been subject to responses by the criminal
law?
A. Yes, it is.
Q. And that he has committed offences under parole and on bail?
A. Yes.
Q. And then you refer to diversity?
A. Yes.
Q. What's that a reference to?
A. It is in relation to the ages of victims and the sex of victims.
Q. And by reason of that he is characterised as a diverse offender, is he?
A. Yes.
Q. And that's by reason of the age of offences and what was the other matter
that you referred to?
A. The fact that his victims were female and male.”74 (Emphasis added).
51 However when cross-examined about this by counsel for the defendant there
was this exchange:

“Q. And you also agreed that there was diversity with offenders. Now,
obviously I'm sorry, diversity of victims of the offences?
A. Yes.
Q. And it was put to you that that included it was women and also men?
A. Yes.
Q. It was also put to you diversity because of the ages of the victims. Was
there much disparity in the ages of the victims?

74
T65.50-T66.39.
 OBJECTION
HER HONOUR: I would reject that question. The witness volunteered ages.
She volunteered that. It wasn't put to her that that was an aspect of the
diversity. She was asked what the diversity, what she meant by that, and age
was volunteered.
McDONALD
Q. When you volunteered that, what difference in ages were you referring to?
A. To some extent the diversity in age is also his age. He was a young man,
through 20s and then 30s, he is now in his 40s. The diversity of age is not just
anything, it's in relation to his behaviour.
Q. So that was the reference to the age of Mr Wilmot?
A. Yes, across the offending period of time, yes.”75 (Emphasis added).
52 At a number of points in her evidence, Ms Howell focused on “having had a
conversation” with the defendant about certain matters.76 These answers
suggested to me that Ms Howell had seen her role as a therapist for the
defendant, rather then somebody who needed to critically evaluate what he
was saying.

53 Ms Howell noted however that the defendant “did not appear to have difficulty
recalling events, although he was unwilling to discuss in any detail past
offences.”77

54 To my mind this yet is another form of denial and minimisation. The way Ms
Howell dealt with cross-examination on this point was rather elusive and
seemed to me to demonstrate that Ms Howell approached her task directed
towards focus on the need for this Court to “capture the possibility of him [the
defendant] being able to manage the ESO”,78 rather than how safe the
community would be (or not) if the defendant was not kept in detention:

“Q. And has minimised particular conduct?

A. That's very interesting. I certainly understood that from the documents.
When I spoke to him, I believe he minimised things to me as well, but he also
spoke at some length about his experience of offending over time and I took
that as a, in terms of a therapist working with people I took that as a positive
sign. It doesn't always happen. It doesn't mean that change has occurred.
What it means though is someone is able to talk about the need for change.
Q. Yes, but

75
T72.34-T73.9
76
T75.43-45; T70.16-18
77
Report of Ms Howell dated 9 August 2019, at p 12.
78
T70.8-9.
 A. I see that just mitigating I guess is what I'm saying. There is always, am
yes, I'm aware of his past history, I read all the documents and I spoke with
him. I'm just saying there are certain aspects of that that is not as black and
white or clear cut that he will only do one particular behaviour.
Q. But minimisation of some of his offending conduct is one of the factors, at
least on a reasonable view, would point towards Mr Wilmot not being able to
be managed effectively in the community under an ESO, as one of those
factors?
A. I do understand what you are saying. I guess I have an issue with giving a
categorical answer to that question.
Q. Why do you have that difficulty?
A. Because I don't think that it is an absolute. I think that we are aware of what
treatment he has undergone; we are aware of that as well. It has some impact
on his decision making. He's, I mean, there's a whole bunch of history which is
already there and sitting on the table and of course all of that looks like high
risk factors, but I think we are not capturing the possibility of him being able to
manage the ESO, and I guess that's all I am saying. I am not making any
decision one way or the other, I'm not offering an opinion absolutely one way
or the other but I am saying I don't think it's as categorical as past risk factors
remain absolutely high all the time.”79
55 Ultimately Ms Howell accepted that an alternative view from that which she had
provided was reasonably available.80

Other psychiatric, psychological or medical assessments: sections s 9(3)(c) and

17(4)(c), and statistical or other assessments: sections s 9(3)(d) and 17(4)(d)
56 Pre-2019 assessments were set out in detail in State of New South Wales v
Wilmot (Preliminary) at [75]-[103]. The assessments range from Dr Milton in
1999 to Dr Parker in February 2019.

Report from Corrective Services NSW: sections 9(3)(d1) and 17(4)(d1)

57 This was dealt with at [104]–[107] of the judgment on the preliminary hearing.

Sex offender treatment or rehabilitation programs: sections 9(3)(e) and 17(4)(e)

58 This was dealt with in the preliminary judgment based on the available
evidence up to June 2019 at [63]-[74].

59 The position was updated at the final hearing by the HISOP report of Ms
Holden dated 26 July 2019. Ms Holden noted that the defendant was unwilling
to discuss most of his criminal offending.81 Ms Holden noted however that he

79
T69.32-70.12.
80
T71.29-31.
81
Report of Ms Holden dated 26 July 2019, at [23] and [61].
 was able to demonstrate significant improvements in his engagement and
emotional regulation, when compared to his past behaviour.82

60 Ms Holden assessed the defendant as within the highest category of risk of re-
offending (Level IVb).83 There is no plan for the defendant to engage further
with HISOP:

“In his most recent attempt at treatment, Mr Wilmot was removed from the
treatment wing prior to fulfilling all program requirements. He was discharged
due to: ongoing difficulties managing aggressive behaviour; poor insight and
resistance to planning for the future; limited willingness to discuss sexual
offending; and concerns about his ability to control his behaviour in the context
of increasing agitation and aggression. Whilst Mr Wilmot has not completed all
aspects of the program it was also noted that he had likely achieved as much
as he would at this time and that he would not gain anything further from re-
entering HISOP at this time.”84
Options for reducing likelihood of reoffending: sections 9(3)(e1) and 17(4)(e1)
61 This was dealt with in State of New South Wales v Wilmot (Preliminary) at
[108].

Likelihood of compliance with ESO: sections 9(3)(e2) and 17(4)(e2)

62 Some preliminary findings on this question were set out in State of New South
Wales v Wilmot (Preliminary) at [109]-[110].

63 Dr Eagle indicated that in her view there would likely be difficulties (see
paragraph [37] of this judgment). Her opinion was expanded upon in her oral
evidence:

“A. That's correct. So Mr Wilmot needs the highest level of supervision and
monitoring available but, even then I think, given his attitudes to supervision,
even in the custodial environment he may well find it difficult to respond to
significant restrictions placed on him and supervision may not be able to be
effective.”85
…
“A. There are a number of factors, but in particular Mr Wilmot has displayed
pervasive difficulty regulating his emotional responses, he has persistently
minimised or denied any of the problematic behaviours that he has engaged
in, including some of his offending behaviours, he has not been able to
participate in any rehabilitation programs in custody to date satisfactorily; and

82
Ibid, at [61].
83
Ibid, at [62].
84
Ibid, at [6].
85
T47.3-7.
 that sort of indicates that he is unable to reflect on his behaviours or learn from
his behaviours or engage in programs that might modify his behaviours.”86
…
“A. He has attitude that indicates a resistance to restrictions and supervisions,
and supervision regimes that would get in the way of the effectiveness of the
supervision regime which has to some degree to rely on a level of voluntary
co-operation.”87
64 Ms Howell however was of the view that the defendant’s risk of recidivism can
be effectively managed in the community under an ESO.88

Compliance with parole and supervision obligations: sections 9(3)(f) and 17(4)(f),
and any other information available as to the likelihood the offender will commit a
further serious offence: sections 9(3)(i) and 17(4)(i)
65 Obviously compliance has been a problem for the defendant on previous
releases in 1987, 1997 and 1998, as set out in [60] and [61] of the preliminary
judgment. The defendant breached bail and parole by further sexual and
violent offending.

Prior criminal history and pattern of offending – sections 9(3)(h) and 17(4)(h)
66 I have outlined the defendant’s prior criminal history and pattern of offending at
paragraph [3] of this judgment. I additionally note the following from the
preliminary judgment:

“[54] The defendant has also incurred proven disciplinary offences on about 20
separate occasions during his period of incarceration. The offences include
damage property, fighting, possession or creation of prohibited goods and
intimidation.89 He incurred an institutional charge on 19 January 2018 for the
possession of a gaol-made weapon.”
Views of sentencing court: sections 9(3)(h1) and 17(4)(h1), and any other
information available as to the likelihood the offender will commit a further serious
offence: sections 9(3)(i) and 17(4)(i)
67 These were relevantly extracted in the preliminary judgment at [55]-[59].

86
T47.11-17.
87
T47.20-23.
88
Report of Ms Howell dated 9 August 2019, at p 15.
89
Inmate Profile Document: EW-1 tab 2.
Submissions
Plaintiff’s submissions
68 The Crown submitted that there were 12 persuasive factors borne out by the
evidence, that amply supported a conclusion that the defendant, if not
detained, posed an unacceptable risk of committing another serious offence.

69 The first was the need to give due weight to the primacy in the legislation (s 3
and s 17(2)) of the safety of the community.

70 Second was the nature and extent of the defendant’s criminal history, which
could rightly be described as sexual and violent offending since childhood of an
horrendous nature which was grave, frequent, persistent and involved diverse
victims. The history demonstrated a propensity to commit serious sexual or
serious violent or serious violent sexual offences upon women who are alone
and vulnerable, or against vulnerable men. The offending would happen rapidly
without warning. In the words of Dr Parker, who conducted a full risk
assessment in February 2019, a risk scenario would appear to be “any
opportunity where a potential victim is alone and [the defendant] is
unsupervised.”

71 Third was the denial and minimisation, a continuing position taken by the
defendant as recently as July 2019 in his assessment with Dr Eagle, despite an
awareness that the report was being prepared for these proceedings. This
denial and minimisation of offending for which he was tried and convicted is a
repeated theme. In respect of the index offending, the defendant told Dr Eagle
that it was “just a finger in the anus”, it was “not sexual”.90 He told Dr Parker
that it hadn’t occurred at all.91 To Ms O’Neill in March and April 2018, the
defendant denied the offending and minimised it by saying that it was “just
blokes being blokes”.

72 In respect of the offending in August 1990 when he ran at a woman and

pushed her to the ground and stole her handbag, the defendant told Dr Parker
that he had “pleaded guilty for somebody else”.

90
Report of Dr Kerri Eagle dated 9 August 2019, at [153].
91
Report of Dr Parker dated 8 February 2019, at [50].
73 In respect of the offending in October 1990 when he attacked a young woman
walking her dog, he told Dr Parker that he tripped over the dog lead. He gave a
similar story to Dr Eagle.

74 In respect of the offending with the young vulnerable woman at Leightonfield

railway station, he described the attack on her as consensual – “one thing led
to another”92 – and that he had pleaded guilty despite it being a consensual
encounter, but in court he realised he had pleaded guilty to the wrong thing as
the woman in court was not the woman he had had sex with. To Ms O’Neill on
201893 and to Dr Eagle in 2019, the defendant said that he had met this woman
at the railway station, the encounter was consensual, and when asked by Dr
Eagle why he pleaded guilty to the charges that had been laid against him, he
said that he had had sex with her and that he did not trust court proceedings.
He denied that he had hit her, suggesting she could have put the bruises on
herself and when asked why she would make up such a story the defendant
said “Can’t say. Money?”.

75 The plaintiff submitted – appropriately in my view – that this is a deeply

disturbing and distorted account of the defendant’s conduct. It is notable that
even in these proceedings, with the scrutiny they bring to his attitude to
offending and rehabilitation potential, the defendant continues with this denial
and minimisation

76 Dr Eagle gave persuasive evidence regarding the relevance of this kind of

behaviour to the defendant’s risk, explaining, in short, that the refusal to
acknowledge or inability to recognise his behaviour, means that there is
nothing stopping him from doing it again, because he is not accepting any
responsibility for it.

77 Fourth, he was categorised at the highest level of risk both on the static and
dynamic factors by each practitioner who carried out that assessment namely
Ms Holden, Ms O’Neill, Dr Parker, Dr Eagle and Ms Howell.

78 Fifth, the defendant has a severe personality disorder (borderline personality

disorder) according to Dr Eagle, as well as emotional instability. Both Dr Eagle

92
Ibid, at [48].
93
Report of Ms O’Neill, at page 5.
 and Dr Parker thought psychopathy was present, with Dr Eagle describing this
as problematic, because of the features of deception, callousness and
manipulation and that personality disorders are hard to modify and thus
comprise an ongoing risk because personality features are “pervasive and
enduring.”

79 Sixth, there was his removal from the HISOP program due to his behaviour and
thus limited treatment gains obtained.

80 Seventh, there is the ongoing presence of cognitive distortion. Dr Eagle

described this as persistent cognitive distortion in relation to his offending.94 Ms
O’Neill also referred to this issue.

81 Eighth was the defendant’s history of failing to comply with parole and bail
supervision. The offending in July 1987 was whilst he was on parole. The
offending in September 1998 was whilst he was on bail. The offending in
August 1997 was whilst he was on parole. The offending in October 1997 was
whilst he was on parole. Both attacks on young women in June 1998 were
made whilst he was on release on bail. What this demonstrates is an inability to
comply with bail or parole in the worst possible way – that is by committing
other violent or sexual offending.

82 There is no positive evolution of attitude. The current attitude indicates ongoing

problems. To say to Dr Eagle in this context “You’ve got to work with me”
indicates a potential lack of acceptance of supervision. Similarly his comment
to other therapists that there is “no point putting a tight leash on me”.

83 Ninth, he has been institutionalised, having had 22 years in custody. Because

of his attitude and behaviour there has been no pre-release leave, so it is
difficult to assess how he will behave on release. The safety of the community
is paramount. There has been no “stepdown”, partly because of the
defendant’s own attitude and failure to engage in appropriate behaviour in and
out of programs

84 Tenth, there is limited prosocial networks and support.

94
Report of Dr Kerri Eagle dated 9 August 2019, at [190].
85 Eleventh, there have been some problems with recent behaviour in custody
including displaying rage and fury in July 2019 directed at an administration
building where psychology staff are located and in that context, complaining
about treatment reports describing staff as “cunts”, leading to the need to
secure the wing early rather than trying to secure the defendant individually
given how heated he was. There is also a note that the defendant had been
terminated from working in the recycling area due to very aggressive behaviour
towards other inmates who stated that they were scared of him (26 July 2019).
There are also multiple references to the defendant having been discharged
from the HISOP program in June 2019 because of concerns about his inability
to regulate his behaviour, having demonstrated escalation in intimidating and
threatening behaviour over some weeks that had required staff and other
offenders to intervene to assist in managing his behaviour.

86 Twelfth, there are problems with available accommodation if released on an

ESO. Dr Eagle gave evidence that he would require the highest level of
supported accommodation. The evidence indicated that Community Offender
Support Program (COSP) was not available to him and that the only two
options that were available were crisis accommodation with no clarity as to
whether either place would accept the applicant, because there were currently
no vacancies and no suitability assessment had yet been done.

Defendant’s submissions
87 An overarching submission made on behalf of the defendant in his written
submissions (“DWS”) was that the expert opinion favours the imposition of an
ESO as the most appropriate order.

88 I will dispatch that argument at the outset. Whilst that argument may have been
perhaps open to make on the reports of Dr Eagle and Ms Howell, it was
definitely laid to rest by the evidence of Dr Eagle – see paragraph [42] of this
judgment – where she made it clear that for ethical and other reasons, she
considered the determination of a CDO or an ESO to be entirely a matter for
the Court. Dr Eagle was asked to address ESO conditions and the practicality
of an ESO, but in no way did Dr Eagle “favour” an ESO over a CDO. In any
 event, that decision is entirely a matter for my determination as to whether the
criteria have been met and whether I consider a CDO should be made.

89 Senior counsel for the defendant submitted first that the Court should bear in
mind that rehabilitation of offenders is a way to secure the safety of the public.
Rehabilitation of offenders is also an aim of the legislation. There is ample
evidence, particularly from Dr Eagle, that the dynamic risk factors of the
defendant require testing in the community and the strategies he has been
given cannot be tested if he is not released.

90 Second, lack of cooperation with authorities was historical. The defendant is

now 48 and has shown some insight into his offending

91 Third, there was no offending between 1998 [REDACTED].

92 Fourth, his exchange with Dr Eagle in reference to “baby steps” and having
made plans regarding things he wants to do on release indicates an improved
and positive attitude.

93 Fifth, the Court should take into account the social and emotional background
of the defendant set out in the historical documents in Exhibit X pursuant to s
17(4)(h1) of the Act, as they informed the sentencing court and should inform
this Court.

94 Sixth, the Court must bear in mind that the risk that the defendant may commit
an offence if released on an ESO or breach his ESO conditions is not the
issue; it must be the risk that he will commit a serious offence. Further, the fact
that there is some risk is not enough to justify a CDO. Attention was
appropriately drawn to Fagan J’s comments in State of New South Wales v
Barrie (Second Final) [2019] NSWSC 1161 in this regard, where his Honour
said:

“[60] For reasons touched on in the passage quoted from State of New South
Wales v Lynn at [28] above, where any degree of risk of further serious
offending is present, the Court could only “ensure” (in the strict sense of the
word) protection of the community by ordering continuing detention for the
maximum permissible duration in every application under the Act. That clearly
has not been provided for. The Act expressly envisages in s 5C(d) that some
level of risk may be regarded by the Court as acceptable and that only in
cases of “unacceptable” risk should a continuing detention order be made.”
95 Seventh, in light of the accommodation availability issues revealed in the
evidence, the defendant is prepared to accede to a CDO for three months and
then to be subject to an ESO on conditions.

96 Eighth, in the DWS it was suggested that the comments of Basten JA in Lynn v
State of New South Wales [2016] NSWCA 57 at [120] and [129] support a
conclusion that the least restrictive form of control is a matter that this Court
should take into account in its determination:

“[120] Thirdly, as it is clear that the Court should impose no more intrusive
constraints than appears reasonably appropriate to effect the protective
purpose, it is appropriate to ask why that is so. The applicant’s answer must
be that it is so, because it is necessary to balance the restrictions in
contemplation against the freedom of movement and lawful conduct and his
right to privacy, which he would otherwise be entitled to enjoy in full measure.
…
[129] The second step, not reached until the court is comfortably satisfied that
the offender presents a heightened risk of further offending, absent
supervision, involves a determination of what conditions may be imposed with
the purpose of diminishing the risk to an acceptable level. It is self-evident that
this will involve a “balancing” exercise, in the sense that the court will seek to
impose the least intrusive conditions consistent with its assessment of the risk
and a further assessment as to what kind of conditions are likely to be
effective. If the evidence suggested that effective supervision (described as
“adequate supervision” in s 5G(1)) would not be provided by an extended
supervision order, the State might consider an application for a continuing
detention order: none was sought in the present case.”
97 This last submission can be quickly dispatched. It is clear that Basten JA’s
comments, when read in context, clearly were directed towards the
consideration of appropriate conditions once a decision has been made to
release an offender on an ESO, and have no bearing on the decision as to
whether the Court should determine that a CDO should be granted.

Section 21A statements

98 Two victims’ statements provided pursuant to s 21A of the Act were admitted
into evidence.

99 Senior counsel for the defendant submitted that whilst the statements could be
received, little weight should be placed upon their contents. I was taken to the
Second Reading Speech which was submitted to provide a background
understanding of the role of s 21A as follows:
 “The source was a recommendation by the New South Wales Sentencing
Council which considered there might be merit in allowing the victim's views to
be considered. This is what we would emphasise: "particularly in
circumstances where they might be aware of events not known to the
authorities of relevance to any ongoing danger to themselves or other
members of the community".”95
100 The submission was made that to the extent that the writers express opinions
about whether this Court should impose either a CDO or an ESO, given the
authors of the statements are not experts, their opinions on those matters
should be given no weight or limited weight. There was also no clarity as to
what material had been provided to the statement makers about the defendant
and so the bases of their opinions remained to an extent opaque.

101 In respect of the parts of the statements that dealt with matters similar to a
victim impact statement such as would have been tendered on sentencing
proceedings, senior counsel for the defendant (correctly) emphasised that
proceedings under the Act are not a “re-punishing” for past offending.
Accordingly that part of the statements must have limited weight.

102 Countering that position, senior counsel for the plaintiff submitted that I should
take the content of the statements into account on the question of
“unacceptable risk”, given the requirement, in properly addressing that matter,
to look at the probability of the event occurring as well as the gravity of the
consequences. What the statements do, he submitted, is give some indication
of the effect of offending on those persons, rather than offering any opinions.
As a result, this is material, along with a lot of other material that assists in an
understanding of the potential gravity of future offending.

103 Section 21A provides:

21A Victim statements

(1) As soon as practicable after an application for an order under this Act is
made in respect of an offender, the person acting on behalf of the State for the
purposes of the application must take such steps as are reasonable (or, if the
application concerned is for an emergency detention order, as are practicable
in the circumstances) to ensure that written notice of the application is given
to:
(a) each victim of the offender, or

95
T142.32-36.
 (b) if any such victim is under 18 years of age or lacks legal capacity—that
victim’s parent or guardian.
(2) The notice must inform the person that the person may make a statement
orally before the Supreme Court, or provide a statement in writing, about:
(a) the person’s views about the order and any conditions to which the order
may be subject, and
(b) any other matters prescribed by the regulations.
(3) It is sufficient for the notice to be sent to the person at the person’s last
known address as recorded in the Victims Register.
(3A) A statement in writing must be provided before the date specified in the
notice.
(4) Any statement in writing received before the final hearing date in respect
of the application may be placed before the Supreme Court for consideration
in respect of the application.
(4A) An oral statement may be made at such time during the proceedings on
the application before the Supreme Court makes its decision on the application
as the Supreme Court determines.
(4B) The Supreme Court is to hear an oral statement in the absence of the
offender unless the person giving the statement consents to the offender being
present.
(4C) The Supreme Court may arrange for an oral statement to be made by
way of closed circuit television.
(5) A person who makes a statement may amend or withdraw the statement.
(6) The Supreme Court and the State must not disclose a statement (other
than one given in the presence of the offender in accordance with subsection
4B) to the offender to which the application relates unless the person who
made the statement consents to the disclosure.
(7) If consent is not provided the Supreme Court may:
(a) reduce the weight given to the statement, and
(b) take reasonable steps to disclose to the offender, or the offender’s legal
representative, the substance of the statement but only if the Court is satisfied
that those steps could not reasonably be expected to lead to the identification
of the victim or the person who made the statement.
(8) In this section:
victim of an offender means a victim who is recorded on the Victims Register
in respect of the offender for the purposes of section 256 (2) (b) of the Crimes
(Administration of Sentences) Act 1999.
Victims Register has the same meaning it has in the Crimes (Administration of
Sentences) Act 1999.
104 The terms of s 21A contain a number of mandatory aspects. There is a
requirement to notify each victim of the State’s application and a requirement to
inform each person that they may make a statement orally or in writing before
 the Supreme Court. This indicates with clarity the statutory intention that
victims must be told about the application and must be told they can write or be
heard. It would not be giving due effect to that clearly stated intention to then
refuse to give any weight to statements so obtained.

105 Subsection (4) says that any statement in writing received may be placed
before the Supreme Court for consideration in respect of the application
(emphasis added).

106 It seems to me that the submission by senior counsel for the plaintiff is
reflective of this provision.

107 The authors of the statements did not consent to disclosure of their statements
to the defendant himself, although each consented to the defendant’s legal
representatives reading the statements. Subsections (4), (5) and (6) of s 21A
clearly envisage the overwhelming and difficult effects on victims of sexual and
violent offending facing and articulating the effects of the offending upon their
life and facing and articulating their concerns about the offender’s release.

108 Subsection (7) provides the Court with a discretion to reduce the weight given
to the statements in circumstances where consent to disclose to the offender
the contents of the statement was not provided and to take reasonable steps to
disclose to the offender – or, relevantly to the circumstances here, to the
offender’s legal representative – the substance of the statements.

109 Here the defendant’s legal representatives were given the statements and
whilst they were unable to be shared with the defendant, the general nature of
them was disclosed to him. Most importantly, the defendant’s counsel were
able to make informed submissions about what parts of the statements may
stray into areas of debate as to weight.

110 My attention was drawn to the approach of Walton J in State of New South
Wales v French (Final) [2017] NSWSC 1475 at [84]-[85]. However in that case,
as clearly set out by Walton J, the State made certain concessions regarding
the effect and operation of s 21A which are not concessions made here. His
Honour concluded that “very little weight may be attached” to the statement in
the context of submissions made in that case by the State.
111 In my opinion, subsection (7) clearly provides a discretion to reduce the weight
given to such a statement, not an obligation to do so.

112 I am of the opinion that I can and ought to take into account those aspects of
the statements that provide a human face to the serious lifelong effect that the
violent and sexual offending engaged in by the defendant has had on these
victims. This material is important and helpful to my statutory task. I do not
consider it to be a matter of little weight. I consider it to be a matter that assists
me in understanding the gravity of the offending and this in turn, informs the
question of unacceptable risk.

113 In respect of the parts of the statements that express a view about whether I
should grant a CDO or an ESO or not, and what the conditions should be, I
accept the submissions of senior counsel for the defendant that I must be
circumspect about placing weight on those opinions given they are first, not
expert opinions, second, the extent of the material upon which the views were
based is not clear, and third, and perhaps most significantly, this question is
one for the Court to determine based on all the evidence.

114 In reaching this view I hasten to add that I am in no way being critical of those
views being offered. Section 21A(2) in its terms provides that the authors of
statements may address their views about “the order or any conditions to which
the order may be subject”. In some cases, victims who are in, for example, a
small town, or a family, or are easily identifiable, or victims of very recent
offending would have views that would be of significant weight in fashioning
conditions such as residence or may have particular practical concerns to
raise.

115 This is not such a case, but I am indebted to the two authors of the statements
for having the courage to articulate what they have, in the way they have,
which is of assistance to the Court.

Consideration
116 Section 5C(d) of the Act provides as follows:

5C Making of continuing detention orders—unacceptable risk

The Supreme Court may make an order for the continued detention of a
person (a continuing detention order) if:
 …
(d) the Supreme Court is satisfied to a high degree of probability that the
person poses an unacceptable risk of committing another serious offence if not
kept in detention under the order.
117 In State of New South Wales v Jones [2018] NSWSC 459, N Adams J
observed:

“[210] The phrase “unacceptable risk” is not defined in the Act. It was
considered by the Court of Appeal in Lynn v State of New South Wales [2016]
NSWCA 57 where Beazley P (with whom Gleeson JJA agreed) held that the
phrase "unacceptable risk" in the Act is to be given its everyday meaning
within its context and having regard to the objects of the Act (at [58]). In
addition, s 5D of the Act provides that this 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.
[211] In State of New South Wales v Pacey (Final) [2015] NSWSC 1983 at
[43] Harrison J observed:
“It is perhaps trite to observe that the assessment of the
ordinary meaning of the unacceptability of any risk involves at
least notionally the arithmetical product of the consequences of
the risk should it eventuate on the one hand and the likelihood
that it will eventuate on the other hand. A very high risk of
occurrence of something that is insignificant, or a very low risk
of occurrence of something that is significant, are both risks of
similar or corresponding proportions, but neither risk could be
considered to be unacceptable.”
[212] Similarly, Wilson J observed in State of New South Wales v Simcock
(Final) [2016] NSWSC 1805 at [71]) that, “Unacceptability of risk involves
considerations of both the likelihood of the risk eventuating, and the gravity of
the risk that may eventuate.””
118 In my opinion, Mr Wilmot poses an unacceptable risk of committing a serious
offence if he is not kept in detention. I am satisfied that he does so to a high
degree of probability. My reasons for coming to that conclusion are as follows.

119 Mr Wilmot has a criminal history of repeated violent and violent sexual
offending upon young women who are alone and thus vulnerable to attack,
and, [REDACTED] vulnerable men. The offending seems often to be impulsive
and sudden – although in one case there is a suggestion that there may have
been some pre-planning in noting his victim would likely be alone at the same
time the next day.

120 I have set out at some considerable length the opinions and conclusions of the
psychiatrists and psychologists who have examined Mr Wilmot. I have placed
 particular emphasis on the more recent assessments, although the earlier ones
are certainly not irrelevant.

121 It is evident that Mr Wilmot shows no insight into his offending. He has not
even acknowledged – in the main – that the offending occurred at all despite
trials resulting in convictions and one unsuccessful appeal. He continues to
deny and minimise the offending. He victim blames in a shamelessly callous
way. He has not properly engaged with even the first step to rehabilitation:
acknowledgement of what he has done. He is manipulative. He perseveres
with a significantly warped view of social interaction with women and his
imagined right to take, with force, whatever he decides he wants or to respond
with aggression to whatever he does not like.

122 All assessments of the static and dynamic risk factors reached the same result:
he in the highest category of risk of reoffending in a violent, sexual or sexually
violent way. The psychiatric and psychological assessments explain why this is
so and what other aspects of the defendant’s presentation underpin that risk.

123 The defendant has submitted that the criteria for imposition of a CDO have not
been established on the evidence to the requisite standard. Dealing first with
the submissions made on behalf of the defendant about the benefit to the
community in the defendant being rehabilitated, the primary object is safety of
the public. The defendant’s rehabilitation and opportunity to pursue that in the
community is not an object of the legislation. The “other object” set out in s 3 is
to “encourage the offender to undertake rehabilitation”, not to facilitate it and in
doing so to create risk to the safety of the community.

124 Whilst there has been some improvement in attitude in the HISOP as set out
by Ms Holden in her report, these improvements came from a very low base. In
critical ways the defendant did not cooperate. He would not discuss the
offending other than to deny and minimise it. It is correct that his participation in
the HISOP is complete, but that is because there is nothing more to be gained
from his involvement in it, not because he has constructively approached his
rehabilitation.

125 Whilst it is true that available programs to reduce risk within a custodial setting
are limited (DWS at [94](v)), it is not correct to say that Dr Eagle concluded that
 “psychological counselling within a custodial setting is not effective at reducing
recidivism”. Dr Eagle said that it “has been shown to have limited benefits”.
This is quite a significant difference.

126 It was submitted (DWS at [94](iv)) that the defendant was “at risk of becoming
further institutionalised thus impeding his ultimate rehabilitation” however Dr
Eagle gave evidence that institutionalisation occurs by about the fifth year.
There is no evidence before me that a further period of detention will make any
difference to the defendant’s institutionalisation.

127 In terms of the hiatus in offending, the defendant was in custody from 1998 to
[REDACTED] so this can hardly be regarded as an illustration of safety for the
community. [REDACTED].

128 [REDACTED]. It does not, given his overall attitude to his offending, provide a
basis for concluding that the defendant no longer presents as an unacceptable
risk of committing further serious offending on release.

129 In terms of planning post release, as identified by Dr Eagle, the expressed

aims are quite childish – walking on a beach, looking at an airbus – with no real
plan revealed about necessary matters such as work and household planning.
The HISOP report refers to the defendant’s refusal to plan for the future and
the difficulties that his refusal created for comprehensive participation by him in
the potential benefits of that program.

130 Whilst the defendant’s psychiatric and social background are most unfortunate
and not irrelevant, what they illustrate is some of the reasons why the
defendant is likely to seriously re-offend and how difficult these matters are
now to manage and treat, particularly when there is limited cooperation by the
defendant and no insight.

131 I remain very mindful that the risk of breaching ESO conditions, or a risk of
minor offending is not a reason to make a CDO. However the focus of the
evidence tendered leads me inexorably to the conclusion that there is a high
degree of probability that the defendant will commit another serious offence if
not kept in detention, and that risk is an unacceptable one given the
 opportunistic, serious, violent, versatile and unpredictable nature of his past,
largely unaddressed, offending.

132 I find each of the twelve submissions made by the senior counsel for the
plaintiff ultimately persuasive and well-founded on the evidence.

133 For these reasons I make orders 6 and 7 sought in the Summons.

134 I decline to make an additional order for extended supervision to follow the
expiration of the two year period of continuing detention. I am unable to predict
with any clarity what progress the defendant will make with his rehabilitation
given the recently commenced approach with the allocated psychologist, or
what accommodation and other options will be suitable and available to him in
two years’ time. It may be that progress with his rehabilitation and or insight
into his past offending has reached a stage where the package of proposed
conditions for release will be different to those currently proposed.

Orders
135 The Court orders:

(1) Pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006
(NSW) the defendant is subject to a continuing detention order for a
period of 2 years commencing on 24 September 2019 and expiring on
23 September 2021.
(2) Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006
(NSW) a warrant is to issue for the committal of the defendant to a
correctional centre for the purpose of Order (1).
**********

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