Background
The State of New South Wales applied to the Supreme Court for a two-year Extended Supervision Order (ESO) against Arash Farzad under the Crimes (High Risk Offenders) Act 2006 (NSW). Mr. Farzad had a significant criminal history, including 2004 offences where he used a stupefying drug to facilitate the aggravated sexual assault of a 13-year-old girl, for which he was sentenced to 10 years in prison. After his release, he was convicted of further offences in Tasmania, including possessing child abuse material and breaching reporting obligations.
In March 2024, the Court had imposed a two-year ESO on Mr. Farzad. As that order neared its end, the State sought a new one, arguing he continued to pose an unacceptable risk. The defendant, now 59, opposed the order, highlighting that his most serious offences occurred 20 years ago and that he had not breached the existing ESO. A key issue was the defendant’s complex and disputed mental health diagnosis. He had recently ceased taking antipsychotic medication, and the effect of this on his future risk was a central point of contention.
The Court’s Holding
Roberts J granted the State’s application, imposing a new two-year ESO on Mr. Farzad. The Court had to be satisfied “to a high degree of probability” that the defendant posed an “unacceptable risk of committing another serious offence” if not supervised. The judge found this standard was met. The Court acknowledged the passage of time since the original violent sexual offences but emphasized that the assessment of “unacceptable risk” involves both the likelihood of reoffending and the gravity of the potential harm.
The judgment noted that even a low likelihood of reoffending could constitute an unacceptable risk if the consequences were very grave, as would be the case with a serious sexual offence. The Court weighed Mr. Farzad’s entire history, including his subsequent offending in Tasmania, his minimization of his crimes, and the uncertainty surrounding his mental state following the cessation of his medication. The Court concluded that without the structure and monitoring of an ESO, the risk to community safety was unacceptable. The new order imposes various conditions on Mr. Farzad, though a condition for electronic monitoring was removed.
Key Takeaways
- An offender can be found to pose an “unacceptable risk” requiring an Extended Supervision Order (ESO) even if their index violent offences were committed two decades earlier.
- The assessment of “unacceptable risk” considers both the likelihood of the risk eventuating and the gravity of the potential harm; a low probability of reoffending may still be unacceptable if the potential crime is extremely serious.
- An offender’s compliance with a previous supervision order does not automatically mean they no longer pose an unacceptable risk requiring further supervision.
- Uncertainty in an offender’s mental health diagnosis and the potential for deterioration after ceasing medication can be a significant factor in a court’s assessment of future risk.
Why It Matters
This decision illustrates the operation of New South Wales’s high-risk offender legislation, which prioritizes community safety and protection. It confirms that courts will take a comprehensive and cautious approach when assessing future risk, looking at an offender’s entire history, conduct under supervision, and evolving health status. The case serves as a reminder that individuals convicted of serious sexual offences can be subject to long-term supervision well beyond the expiry of their original prison sentences.
For legal professionals, the case underscores the factors that weigh heavily in post-sentence supervision applications. It shows that the state can successfully argue for ongoing supervision even without recent serious offending, provided it can demonstrate through expert evidence and historical conduct that an unacceptable risk remains. It reinforces the principle that the protection of the community is the paramount object of the legislative scheme.