State of New South Wales v New (Preliminary) [2021] NSWSC 1376

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v New (Preliminary) [2021] NSWSC 1376 Hearing dates: 25 October 2021 Decision date: 27 October 2021 Jurisdiction: Common Law Before: R A Hulme J Decision: Two experts appointed to provide reports and interim supervision order for 28 days made Catchwords: HIGH RISK OFFENDERS – high risk sex offender – interim supervision order made – no point of principle Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B(d), 7(4), 10A(b) Category: Principal judgment Parties: State of New South Wales (Plaintiff) Bryian New (Defendant) Representation: Counsel: Mr K Heath (Plaintiff) Ms G Lewer (Defendant)

Solicitors: Crown Solicitors Hugo Law Group File Number(s): 2021/192943

Judgment 1. HIS HONOUR: By a summons filed on 6 July 2021 the State of New South Wales seeks various orders against Mr Bryian New pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW). The State contends that there is a high degree of probability that Mr New poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision pursuant to an extended supervision order. 2. This is the preliminary hearing of the application. The State asks the court to make orders appointing psychiatrists and/or psychologists to examine Mr New and provide reports; to require Mr New to comply with an interim supervision order pending a final hearing of the application; and that there be an ancillary order in relation to the court's file. 3. Through his counsel, Ms Lewer, Mr New indicated he did not wish to be heard against the making of an interim supervision order provided the court was satisfied the statutory requirements had been met. He opposed some of the conditions that would apply to an interim supervision order. He otherwise consents to the orders sought by the State. 4. I have had the benefit of reading the material upon which the State relies as well as very helpful written submissions by counsel for both parties. I am satisfied that all of the pre-trial procedures required under the Act have been complied with. I'm also satisfied that the pre-conditions for making the orders sought have been met. Expressing that more precisely but convolutely, I am satisfied that the matters alleged in the supporting documentation would if proved justify the making of an extended supervision order by establishing to a high degree of probability that Mr New poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision pursuant to an extended supervision order: ss 5B(d), 7(4) and 10A(b) of the Act. 5. Mr New is presently in custody serving the balance of parole of a sentence that will expire very soon, on 28 October 2021. He is also bail refused in respect of charges that are pending in the Local Court at Burwood and are listed for defended hearing on 14 December 2021. If he remains in custody until the hearing then, of course, there would be no utility in having an interim supervision order. It is appropriate to allow for the possibility that he may be released to bail. 6. The relatively short time frame between the making of orders and a final hearing of the matter is a relevant matter when considering the various objections to conditions. Having regard to the time of year, the parties must do all that is possible to bring on a final hearing before the end of the Court term on 17 December 2021. 7. There are about 50 proposed conditions of the supervision order sought by the State. Counsel for Mr New gave notice of an objection to about half of them. The State has reconsidered the proposed conditions in light of the objections and has agreed to delete a small number and amend a few others. Nevertheless, a significant number remain for determination. I propose to deal with the objections relatively briefly and somewhat globally. 8. I have the benefit of a Risk Assessment Report by Dr Richard Parker dated 3 March 2021 with a supplementary report by him dated 1 June 2021. I also have the benefit of a Risk Management Report by Mr Jason Saad, dated 25 April 2021 which includes a specific discussion of conditions that might apply to a supervision order. 9. One further matter to mention before turning to the specific conditions proposed is that I was not assisted by submissions to the effect that another judge in another case in respect of another person decided not to impose a particular type of condition. Each of these cases involve different people with different circumstances and different risk factors that are sought to be addressed by a supervision order. The fact that another judge in another case took a certain course is of little relevance. 10. Considerations pertinent to the conditions in this case include, as mentioned above, the term in which the conditions could be in force. Some of the conditions appear directly relevant to a risk factor – e.g. unsupervised proximity to children. Others which might not be directly relevant to a risk factor might still be appropriate because they facilitate the broad regime of supervision that is designed to manage risk. 11. Proposed conditions in relation to electronic monitoring, compliance with a curfew and allowing visits by the departmental supervising officer (DSO) all seem to be suitable and appropriate, in the short time at least. In relation to the proposed curfew condition I note that there is some overlap between its requirements and that of proposed conditions 5 and 11 but consideration might be given to fine tuning that overlap at or prior to the final hearing. In combination these conditions are pertinent to the example of specific risk given above. So too are proposed conditions 12 and 14. 12. There was an objection to conditions 17 and 18 which provide for place restrictions in relation to Mr New's movements. They are appropriate for the same reason as above. 13. Condition 18 would require Mr New not to go to certain places including a library without prior approval. The objection to this is that he would like to go to a library. However, I accept the submission for the State that libraries are one of the types of places where children are likely to be found, at least at certain times of the day, or days of the week. The condition will remain as proposed. 14. Condition 24 is a non-association requirement that applies unless the DSO permits. The objection is on the basis that it is too broad. For the meantime I am satisfied that it is appropriate but it might be reconsidered at the final hearing. 15. Disclosure of Mr New's criminal history is the subject of proposed condition 26. I was not persuaded there was merit in the limited basis of the objection there. 16. Conditions 28 through to 38 would relate to Mr New's access to the internet and other electronic communications. The only objection was to proposed condition 37 which would require him not to delete certain material. The objection was that this was impractical, if not impossible. I believe it is possible to be complied with and it will remain, at least for the moment. 17. Search and seizure is the subject of proposed conditions 39 and 40. It was suggested that they should be replaced with a rather convoluted specification of conditions that other judges had imposed in other cases. That no doubt was considered appropriate in those cases but in this case there is no necessity for the condition to be altered at the interim order stage. 18. Conditions 41 to 44 are under the heading of "Personal details and appearance". Condition 42 was the subject of an objection which was accepted by the State and a proposed amendment was put forward. I have resolved to revise that amendment so that it will read, "The defendant must notify a DSO within 24 hours of any significant change in his appearance". That appeared to receive acceptance by both parties. 19. Proposed condition 44 was the subject of an objection as to an asserted lack of clarity in the meaning of the term, "form of identification". The condition would require Mr New to inform his DSO of the details of any change in the details of current "forms of identification". I think the meaning of the term is clear enough and the condition will remain as proposed. 20. An objection to proposed condition 47 was met with a suggested amendment by the State to which there was agreement. It was discussed at the hearing and it was further agreed that the words "the subject of the direction" at the end of the proposed amended condition should be deleted as well. 21. Finally, under the category of "medical intervention and treatment" there was an objection to proposed conditions 50 to 52 which are in the sensitive area of disclosure of private health information. These are commonly found in supervision orders and I am prepared to accept them in the terms proposed for an interim order. However it might be appropriate if the parties were to address the appropriateness of these in more detail at a final hearing.