State of New South Wales v Banks (Preliminary) [2021] NSWSC 1246

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Banks (Preliminary) [2021] NSWSC 1246 Hearing dates: 24 September 2021 Date of orders: 01 October 2021 Decision date: 01 October 2021 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The Summons is dismissed. (2) The plaintiff is to pay the defendant's costs. Catchwords: HIGH RISK OFFENDER – serious sex offences – preliminary hearing – application for variation of existing ESO under s 13 of the Crimes (High Risk Offenders) Act 2006 to extend the order by 2 years and add and modify conditions – alternatively orders sought for an ISO and psychologist and psychiatrist examination and fresh 2 year ESO – Court not satisfied to a high degree of probability that defendant poses an unacceptable risk of committing a serious offence if not kept under supervision – application dismissed Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 9, 10A, 13 Cases Cited: State of New South Wales v Banks [2016] NSWSC 926 Category: Procedural rulings Parties: State of New South Wales (Plaintiff) Richard Anthony Banks (Defendant) Representation: Counsel: J Harris (Plaintiff) P Coady / S Gaussen (Defendant)

Solicitors: Crown Solicitor's Office (Plaintiff) Hugo Law Group (Defendant) File Number(s): 2021/229196 Publication restriction: Nil

Judgment 1. By Summons filed on 11 August 2021, the plaintiff seeks orders under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") against Richard Anthony Banks. 2. The defendant is currently subject to a 3 year extended supervision order ("ESO") imposed by Rothman J on 24 March 2016: State of New South Wales v Banks [2016] NSWSC 926. That order has been suspended on various occasions as a result of Mr Banks breaching various conditions of the ESO and being consequently sentenced to periods of imprisonment. That ESO will expire on 3 October 2021. 3. The matter is at the preliminary hearing stage and the State seeks either a "variation" of the defendant's current ESO by extending it by 2 years (purportedly pursuant to s 13 of the Act) and modifying and adding conditions, or alternatively, orders for the appointment of a psychiatrist and a psychologist and an interim supervision order with a view to a further ESO for a period of 2 years. 4. The key issue in contest is whether the material tendered on the application, if proved, satisfies me to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d) of the Act. 5. Counsel for the defendant Mr Coady argued that the statutory threshold for the making of a longer or additional ESO is not met and the application should be dismissed, before the Court even has to consider the question of whether such an order should be made: (the s 5B discretion). 6. Having reviewed the evidence tendered and considered the submissions of the parties I have concluded that Mr Coady's argument is correct. For the reasons that follow, I dismiss the application.