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Supreme Court 18 February 2026

State of New South Wales v De Vries (Preliminary)

[2026] NSWSC 167

Sexual offences

Citation: State of New South Wales v De Vries (Preliminary) [2026] NSWSC 167
Court: Supreme Court of New South Wales — Common Law Division
Date: 18 February 2026
Judge(s): Muston J

Background

This decision arose from a preliminary hearing under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). The plaintiff, the State of New South Wales, sought to renew an extended supervision order (ESO) over the defendant — a 36-year-old Gamilaraay man who had been convicted of the offence of intentionally sexually touching a child between the ages of 10 and 16 years, contrary to s 66DB(a) of the Crimes Act 1900 (NSW). That offence, committed in October 2019, involved the defendant entering the bedroom of a 13-year-old girl — the daughter of a childhood friend — and engaging in sexually inappropriate conduct. The defendant had also previously been convicted of aggravated sexual assault offences committed in 2011.

The defendant was already subject to an ESO imposed by Wright J in October 2021, the duration of which had been extended due to periods of suspension while the defendant was in custody. As that order was due to expire, the State filed a summons in November 2025 seeking a fresh two-year ESO. At this preliminary hearing, the State sought the appointment of two qualified experts to examine the defendant and, crucially, an interim supervision order (ISO) to commence upon the expiry of the current ESO and run for 28 days. The defendant neither opposed nor consented to the orders at this preliminary stage but reserved his position for the final hearing.

The defendant's personal background was characterised by severe childhood trauma, a complex and somewhat contested mental health history (including possible diagnoses of schizophrenia, schizoaffective disorder, antisocial personality disorder, complex PTSD, substance use disorder and cognitive impairment), and a significant history of illicit drug use identified as a key criminogenic risk factor. His sentencing Magistrate had specifically noted the need for drug rehabilitation to reduce reoffending risk.

  • Whether the matters alleged in the State's supporting documentation would, if proved, justify the making of an ESO — the threshold test under ss 7(4) and 10A of the Act.
  • Whether the Court should be satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision — the substantive test in s 5B(d) of the Act.
  • Whether an interim supervision order should be made pending the final determination of the ESO application.
  • Whether conditions attached to the proposed ISO should include an express requirement of "reasonableness" in the directions that supervising officers could give the defendant — a discrete issue raised by the judgment's catchwords.

Decision

Muston J approached the State's evidence on the basis required at a preliminary hearing — that is, taking the facts alleged at their highest and assuming them to be proved, as established in State of New South Wales v Manners [2008] NSWSC 1242. His Honour also gave appropriate weight to risk avoidance, following Attorney General (NSW) v Winters [2007] NSWSC 611.

In assessing whether the s 5B(d) test was met on a preliminary basis, Muston J canvassed the well-settled principles from the case law. His Honour emphasised that the "unacceptable risk" test is an evaluative task in which the Court considers the likelihood of a serious offence occurring and the gravity of the potential consequences. The Court must be satisfied to a standard higher than the balance of probabilities, although it need not find that reoffending is more likely than not. The risk is assessed in the absence of supervision. His Honour had regard to the mandatory considerations in s 9(3) of the Act, including the defendant's criminal history, the sentencing court's views, the defendant's personal circumstances, and the complex mental health and substance use issues.

On the evidence before him — which included the defendant's offending history, the identified link between substance use and offending, the conflicting psychiatric evidence, and the broader context of the defendant's circumstances — Muston J was satisfied that the material, taken at its highest, would justify the making of an ESO. His Honour was also satisfied that the ISO was warranted given that the current supervision would expire before the proceedings could be finally determined, engaging s 10A of the Act.

A notable aspect of the decision, reflected in the catchwords, concerned whether the conditions of the ISO should include an express requirement that directions given by supervising Corrective Services officers be "reasonable." This issue — the appropriateness of building a reasonableness qualification into the terms of supervisory conditions themselves — appears to have been ventilated during argument. While the truncated text limits what can be said about the Court's full reasoning on this point, the fact that it appears as a catchword indicates it was a matter of considered significance. Practitioners should note this as a live issue in the framing of supervision order conditions under the Act.

Orders Made

  • Two qualified experts were appointed to conduct separate examinations of the defendant and to furnish reports to the Court.
  • The defendant was directed to attend those examinations.
  • An interim supervision order was made, to commence upon the expiration of the defendant's current ESO and to continue for a period of 28 days.
  • The defendant was required to comply with conditions attached to the ISO (the precise terms of which are addressed in the full judgment).

Key Takeaways

  • At the preliminary stage of a high risk offenders application, the Supreme Court confirmed that it takes the State's evidence at its highest and assumes the facts alleged to be proved, recognising the threshold as not onerous but requiring satisfaction that the material, if proved, would justify an extended supervision order.
  • The link between substance use disorders and sexual offending risk was treated as a relevant consideration, with the sentencing Magistrate's observations about the need for drug rehabilitation noted as a factor under s 9(3) of the Act.
  • Materially different diagnostic opinions across multiple psychiatric assessments did not prevent satisfaction of the preliminary test, though the defendant reserved his position on the conflicting psychiatric evidence for the final hearing, indicating it remained a contested issue.
  • Whether an express "reasonableness" requirement should be built into interim supervision order conditions that empower supervising officers to give directions to an offender was raised as a live question, engaging issues of proportionality and lawfulness within the supervisory regime.
  • Under s 9(3), the defendant's identity as a Gamilaraay man living off country and his history of severe childhood trauma formed part of the mandatory considerations, with the Supreme Court confirming that such contextual matters must be assessed even at the preliminary hearing stage.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 66DB(a)
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5B, 5D, 7, 9(3), 10(2), 10A

Cases:
- Attorney General (NSW) v Winters [2007] NSWSC 611
- Cornwall v Attorney-General for New South Wales [2007] NSWCA 374
- Lynn v State of New South Wales [2016] NSWCA 57
- State of New South Wales v De Vries (Final) [2022] NSWSC 247
- State of New South Wales v Devaney (Final) [2022] NSWSC 60
- State of New South Wales v Donovan [2015] NSWSC 1254
- State of New South Wales v Holschier (No 2) [2018] NSWSC 1921
- State of New South Wales v Manners [2008] NSWSC 1242
- Tannous v State of NSW [2020] NSWCA 261