State of New South Wales v Fernando (Final) [2023] NSWSC 1047

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Fernando (Final) [2023] NSWSC 1047 Hearing dates: 18 August 2023 Date of orders: 31 August 2023 Decision date: 31 August 2023 Jurisdiction: Common Law Before: N Adams J Decision: (1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) I order that Mr Fernando be subject to an extended supervision order for a period of two years from 31 August 2023. (2) Pursuant to s 11 of the Act, I direct that Mr Fernando, for the period of the extended supervision order, comply with the conditions set out in Schedule to order 1. (3) Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. Catchwords: HIGH RISK OFFENDER – extended supervision order – final hearing – defendant convicted of serious sex offending in 1999 – prior ESO for five year period – several breaches of prior ESO resulting in incarceration and imposition of intensive correction order – defendant developing cognitive impairment – concern whether defendant can comply with conditions given cognitive impairment – where defendant has considerable support including National Disability Insurance Scheme plan – whether to decline to impose ESO despite defendant posing unacceptable risk – dispute over electronic monitoring, scheduling and pornography conditions – ESO imposed with electronic monitoring, dry scheduling Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW) Crimes (High Risk Offenders) Act 2006, ss 5, 5B, 5I and 9 Mental Health Act 2007 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Terrorism (High Risk Offenders) Act 2017 (NSW) Cases Cited: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 State of New South Wales v Burns [2014] NSWSC 1014 State of New South Wales v Carr [2020] NSWSC 643 State of New South Wales v Colb (Final) [2023] NSWSC 969 State of New South Wales v Davis [2021] NSWSC 837 State of New South Wales v Fernando [2023] NSWSC 381 State of New South Wales v Fernando (Final) [2016] NSWSC 1665 State of New South Wales v Loto [2018] NSWSC 1522 State of New South Wales v Matthews (AKA Hackett) [2019] NSWSC 1360 State of New South Wales v Naaman (No 2) (2018) 365 ALR 179; [2018] NSWCA 328 State of New South Wales v Pacey (Final) [2015] NSWSC 1983 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 State of NSW v Cohen (Final) [2023] NSWSC 572 State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813 Texts Cited: A Janca and C Bullen, "The Aboriginal concept of time and its mental health implications" (2003) 11 Australasian Psychiatry 60 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Kevin Todd Fernando (Defendant) Representation: Counsel: Mr A Mykkeltvedt Mr D Carroll