State of New South Wales v DJM (final) [2023] NSWSC 337

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v DJM (final) [2023] NSWSC 337 Hearing dates: 3 April 2023 Date of orders: 3 April 2023 Decision date: 03 April 2023 Jurisdiction: Common Law Before: Fagan J Decision: 1. Order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to an extended supervision order for a period of 2 years commencing 6 April 2023. 2. Order pursuant to s 11 of the Act directing that the defendant for the period of the extended supervision order comply with the conditions set out in schedule A to the amended summons. Catchwords: HIGH RISK OFFENDER Legislation Cited: Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW) Category: Principal judgment Parties: State of New South Wales (plaintiff) DJM (defendant) Representation: Counsel: K Curry (plaintiff) D Bhutani (defendant)

Solicitors: Crown Solicitors' Office (NSW) (plaintiff) Karim & Nicol Lawyers (defendant) File Number(s): 2022/318652 Publication restriction: No

JUDGMENT 1. FAGAN J: This is the final hearing of a summons filed by the plaintiff on 24 October 2022 seeking an extended supervision order of two years duration in respect of the defendant, pursuant to ss 5B and 9 of the Crimes (High Risk Offenders) Act 2006 (NSW). The defendant is presently subject to an interim supervision order made by Wright J on 3 February 2023. That order was renewed by order of Yehia J made on 1 March 2023 and is due to expire on 5 April 2023. 2. The first of the statutory criteria upon which the defendant may be liable to the making of an extended supervision order is that he is an "offender who [has served] a sentence of imprisonment for a serious offence": s 5B(a). In 2008 and 2009 the defendant committed three counts of sexual assault of a child under 16 years of age contrary to s 61J(2) of the Crimes Act 1900 (NSW) and three offences relating to child abuse material contrary to ss 91G and 91H. He was arrested on charges for those offences in October 2009. He pleaded guilty in the Local Court and was sentenced on 20 February 2012. His total effective sentence, after reduction in the Court of Criminal Appeal, was to a term of 13 years and 4 months imprisonment, which commenced on 8 October 2009 and expired on 7 February 2023, with a non-parole period of 10 years that expired on 7 October 2019. The defendant was released to parole under supervision on 13 September 2021. 3. The second criterion for the making of an extended supervision order is that the defendant is "a supervised offender" within the meaning of s 5I: s 5B(b). The defendant satisfies that requirement in that, when the plaintiff's summons was filed, he was serving the balance of his sentence for a serious offence on parole under supervision. 4. Thirdly, the plaintiff's application is required to have been made in accordance with s 5I: 5B(c). That requirement is met in this case by the circumstance that when the plaintiff's summons was filed the applicant was still serving the parole period of his sentence for the offences of 2008 and 2009 and he was within the last 9 months of that term. 5. The fourth and final criterion is the substantive question of whether the Court "is satisfied to a high degree of probability that [the defendant] poses an unacceptable risk of committing another offence if not kept under supervision" under an extended supervision order: 5B(d). That is to be determined having regard to the safety of the community as the paramount consideration, under s 9(2), and taking into account the matters listed in paras (a) to (i) of s 9(3). 6. The defendant in this case does not oppose the making of the order and he makes no submission about the duration of it, if made. The defendant takes issue with only one of the conditions that are sought by the plaintiff pursuant to s 11. Notwithstanding the defendant's lack of opposition to the making of an order it is incumbent on the Court to satisfy itself that the pre-condition in s 5B(d) is met and to give reasons for so finding.