Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Cusack [2014] NSWSC 941 Hearing dates: 15 July 2014 Decision date: 15 July 2014 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: 1. Pursuant to ss 10A and 10C of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") a further interim supervision order is made, commencing from midnight on 18 July 2014, for a period of 28 days. 2. Pursuant to s 11 of the Act, direct the defendant comply with the conditions set out in the schedule of conditions attached to the Short Minutes of Order (Schedule A: Interim Supervision Order - Conditions Applicable to Jeffrey Raymond Cusack) for the period of the interim supervision order referred to in Order 1 above. 3. Liberty to apply to re-list the matter on one day's notice. Catchwords: CRIMINAL LAW - application to extend interim supervision order - pending hearing for high risk sex offender extended supervision order - Crimes (High Risk Offenders) Act 2006 (NSW) - no question of principle. Legislation Cited: - Crimes (High Risk Offenders) Act 2006 (NSW), s 5B, s 6, s 9, s 10A, s 10C, s 11 - Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 Cases Cited: - State of New South Wales v Reed (Preliminary) [2011] NSWSC 625 Category: Interlocutory applications Parties: State of New South Wales (Plaintiff) Jeffrey Raymond Cusack (Defendant) Representation: Counsel: C. Butler (Sol) (Plaintiff) K. Waters (Sol) (Defendant) Solicitors: I.V. Knight, Crown Solicitor (Plaintiff) Legal Aid (Defendant) File Number(s): 2014/140800 ex tempore Judgment 1This is an application under s 10A of the Crimes (High Risk Offenders) Act 2006 (the "Act") for an interim supervision order in respect of the respondent, Jeffrey Raymond Cusack. 2Mr Cusack is 51 years of age. He has an extensive history of criminal convictions. Two sets of those convictions are especially relevant to this application. On 8 June 1994 he was convicted on his plea of guilty to one charge of armed robbery, six charges of having sexual intercourse without consent in circumstances of aggravation, being the threatening of actual bodily harm to the victim with a knife, and one charge of assault occasioning actual bodily harm. He was sentenced to various terms of imprisonment for those offences. Their overall effect was to require him to serve a minimum term of five years and an additional term of two and a half years. The earliest date that he was eligible for release on parole was 15 February 1998. 3The second set of offences was committed on 21 June 2000 while Mr Cusack was on parole for the first set of offences. They comprise one offence of having sexual intercourse in circumstances of aggravation, namely threatening to inflict actual bodily harm upon the victim with an offensive weapon, and one offence of detaining a person with intent to obtain an advantage. A number of other sexual offences arising out of the same incident were taken into account in the course of his sentencing in accordance with the procedure set out in s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The overall effect of the sentences imposed for these offences was that Mr Cusack was required to serve a minimum term of ten years imprisonment expiring 20 June 2010, with an additional term of four years. 4By way of brief summary, on 21 June 2000 Mr Cusack subjected a seventeen year old girl to being repeatedly raped and subjected her to serious threats of violence over a significant period of time. The victim was the daughter of a woman Mr Cusack was living with. He was significantly affected by alcohol and drugs when he committed the offences. 5Mr Cusack was released to parole on 25 July 2012. On 16 March 2014, Mr Cusack was breathalysed during an unannounced home visit. This yielded a blood alcohol reading of .022. He is also said to have acted aggressively towards the Community Corrections staff who attended. This led to his parole being revoked. 6On 9 May 2014, a summons was filed in this Court seeking, inter alia, an extended supervision order under s 9 of the Act. The summons has been set down for final hearing on 19 August 2014. 7On 4 June 2014, Hall J heard and granted an application for an interim supervision order. His Honour imposed various conditions on that order pursuant to s 11 of the Act. His Honour fixed the interim supervision order to operate from the date of expiry of Mr Cusack's sentence, namely 20 June 2014, and to extend for the maximum period of 28 days (see s 10C(1)). This period is due to expire some time this week. Accordingly, application is now made to extend the order. 8Section 10A of the Act provides: "Interim supervision order - high risk sex offender The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order. 9I note that at the hearing of this application the legal representative for Mr Cusack indicated that, without making any admissions for the purposes of the final hearing, he did not oppose the making of the order. 10There is room for debate as to whether an order under s 10A is one that could be made by the consent of the parties or, in fact, requires the Court to be independently satisfied that the preconditions for the making of the order are made out and that it is otherwise warranted. I do not propose to resolve that debate. Instead I have considered the material for myself. 11In light of the criminal history of Mr Cusack, there is no doubt that he is an "offender" as referred to in s 10A. Further, it is also clear that his current period of supervision will expire before the proceedings are determined. Thus, s 10A(a) is satisfied. There remains s 10A(b) to consider. 12The "supporting documentation" referred to in s 10A(b) consists of the material supporting the principal application that addresses the criteria in s 9(3) and certain reports referred to in s 6(3)(b) of the Act. Section 9(3) lists certain criteria that the Court must consider in determining applications for an extended supervision order or interim supervision order. Those criteria in turn inform an assessment of whether a person such as Mr Cusack meets the definition of a "high risk sex offender" in s 5B, which is a necessary precondition to the making of a high risk sex offender extended supervision order as referred to in s 10A(b). However, s 10A(b) also makes it clear that the assertions made in that supporting documentation are not to be evaluated in detail on applications such as this. Instead it suffices if the "matters alleged" in the material justify such an order (see State of New South Wales v Reed (Preliminary) [2011] NSWSC 625 at [16] per McCallum J). 13I have reviewed the material that answers the description the "supporting documentation" and considered it against the criteria in s 9(3) of the Act. Much of that material concerns Mr Cusack's extensive criminal history and his conduct while incarcerated. There is no doubt that the matters alleged in that material when considered against the criteria in s 9(3), if proved, would justify the making of a high risk sex offender extended supervision order. 14The "supporting documentation" also includes a number of assessment reports. One of those reports concerns his performance in custody in the Custody Based Intensive Therapeutic Program ("CUBIT"). The report bears the date 27 June 2012 and records an assessment of Mr Cusack's "static factors" as leading to him being "assessed as being in the high risk category of sexual offending relative to other adult male sexual offenders". The author of that report agrees with that assessment of the risk posed by Mr Cusack. 15Another report included in the "supporting documentation" is a "risk management report" which is the report referred to in s 9(3)(d1) of the Act. That report records an assessment undertaken of Mr Cusack using the "Level of Service Inventory - Revised" which found Mr Cusack to fall within the high risk category for serious and violent re-offending. The author of that report supported the imposition of electronic monitoring as one of the conditions attaching to an extended supervision order. 16There is also a risk assessment report prepared by a psychologist (see s 9(3)(c)). That report records a lesser assessment of the risk of sexual re-offending posed by Mr Cusack and was generally dismissive of the utility of using electronic monitoring. 17Before Hall J the only dispute that was raised for his Honour to determine was whether a condition of electronic monitoring should be imposed. His Honour decided that it should be, but added a form of notation to the conditions which would modify its effect so as not to prevent Mr Cusack working at some work site approved by his supervising officer. 18In terms of applying s 10A(b), I respectfully agree with his Honour's approach. As I have indicated, it is not the function of the Court at this point to make any evaluation of the competing assertions that might be revealed by the supporting documentation. Instead it is sufficient that the matters alleged in at least parts of the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order including an order that contains conditions requiring electronic monitoring. 19Otherwise, as I have indicated, I have reviewed the material and the conditions. The level of risk posed by Mr Cusack as asserted in the supporting documentation, the various factors that exacerbate that risk as supported in the supporting documentation and his general history of offending, in my view, warrant the making of the order and the imposition of the conditions that are proposed. 20Accordingly, I will make the orders that are set out in the short minutes of order handed to me, which I will initial and place with the papers. I will also initial and place with the papers the relevant conditions that are referred to in order 2. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2014