Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Donovan (No 2) [2015] NSWSC 1288 Hearing dates: 18 and 19 August 2015; 1 September 2015 Date of orders: 01 September 2015 Decision date: 01 September 2015 Jurisdiction: Common Law Before: McCallum J Decision: (1) That the application for a continuing detention order be dismissed. (2) That an extended supervision order be made on the conditions stated in the schedule to the summons omitting conditions 4 and 21 to 23. (3) Pursuant to s 18C of the Act, that the interim detention order, as renewed, is to expire at 11am on 2 September 2015 and that the extended supervision order commence at that time. (4) I specify that the term of the extended supervision order is five years from 2 September 2015. (5) Pursuant to s 20(1) of the Act, a warrant is issued for the committal of the defendant to a correctional centre until 11am on 2 September 2015. Catchwords: CIVIL LAW – orders relating to high risk violent offenders – extended supervision orders – conditions of extended supervision order – where extended supervision order is not opposed on terms sought Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Cases Cited: State of New South Wales v Donovan [2015] NSWSC 877 State of New South Wales v Donovan [2015] NSWSC 1254 State of New South Wales v King [2015] NSWSC 74 Category: Consequential orders (other than Costs) Parties: State of New South Wales (plaintiff) Brian James Donovan (defendant) Representation: Counsel: N Sharp with A Avery-Williams (plaintiff) M Johnston (defendant) Solicitors: Crown Solicitor's Office (plaintiff) Legal Aid Commission of New South Wales (defendant) File Number(s): 2015/153125 Publication restriction: None Judgment – Ex Tempore 1. HER HONOUR: In these proceedings the State of New South Wales sought orders under the Crimes (High Risk Offenders) Act 2006 (NSW). The State sought an order for continuing detention of the defendant and, in the alternative, an order for extended supervision. After the hearing, I reserved my decision. 2. At the time of the hearing, an interim detention order made at the preliminary hearing by Schmidt J was shortly due to expire: State of New South Wales v Donovan [2015] NSWSC 877. The period between the conclusion of the hearing and the expiration of the order (being three days) was too short to consider all of the material relied upon by the State (that is, some eight volumes) and to make a decision. Accordingly, I extended the interim detention order so as to expire on 17 September 2018, being a period of a further 28 days from the first interim continuing detention order, or on the day on which judgment is given, whichever is earlier. Judgment having been given today, the interim detention order expires today, subject to any further order of the Court. 3. I gave my reserved decision this morning, refusing the State's application for a continuing detention order: State of New South Wales v Donovan [2015] NSWSC 1254. The defendant did not oppose the extended supervision order sought by the State. However, I stated that it would be necessary to hear the parties as to the conditions of the extended supervision order to be made. I have this afternoon heard the parties as to the issues I raised concerning the conditions proposed. The issues I raised related to proposed conditions 4, 21, 22 and 23. 4. The State does not press condition 4 and that condition will be omitted from the order to be made. 5. Conditions 21, 22 and 23 are: The defendant must not sign any legal instrument that gives the defendant control of any money or assets of another person or organisation, without prior approval of the DSO. The defendant must not sign any lease, mortgage, contract for sale for goods or services above the value of $500, hire agreement, power of attorney, deed, or any instrument relating to obtaining any credit, opening of any account held at a bank, credit union, building society or similar institution, without prior approval of the DSO. The defendant must not form any corporation, partnership, unincorporated association or register any business names without prior approval of the DSO. 1. The concern I raised was that conditions in those terms did not appear to me to be directed to any risk posed by the defendant and carried the risk of being too draconian, particularly in the case of a man who, while not suffering from any diagnosed cognitive impairment such as to meet the specific requirements of a formal diagnosis, evidently has a degree of impairment at least so as to reduce his capacity for executive function. Section 12 of the Crimes (High Risk Offenders) Act makes it an offence punishable by imprisonment for five years to fail to comply with the requirements of an extended supervision order. I was particularly concerned in that context not to impose any condition that is not specifically directed to the risk posed by Mr Donovan. 2. Ms Sharp, who appears for the State, in defending the inclusion of those conditions has submitted that they are intended to represent part of the "mechanism of holistic rehabilitation of the offender". She noted that similar conditions were considered by R A Hulme J in State of New South Wales v King [2015] NSWSC 74 at [66] to [69]. His Honour there noted the same argument put on behalf of the State as to the holistic rehabilitation of the offender being an aim of the order. His Honour also accepted, however, that there was merit in the submissions on behalf of the defendant that the conditions were unnecessary and did not address issues relevant to apparently identified risk factors in relation to, in that case, future serious sex offending. The course taken by R A Hulme J was not to include the conditions but to modify those conditions so as to require the defendant to inform his superior within 48 hours if he engages in any of the nominated activities and to provide such details as the officer may require. 3. In the circumstances of this case, I think that, too, would be overly draconian having regard to the apparent capacity of the defendant and would create the risk of his being in breach of the order for a reason which does not appear to me to be reasonably adapted to the risk I have assessed. For those reasons, I do not propose to include conditions 21 to 23 in the extended supervision order. 4. There being no other condition that has been specifically addressed in argument (and noting that at the outset of the proceedings the defendant indicated his consent to an extended supervision order on the conditions proposed), the extended supervision order will otherwise be on the conditions stated in the schedule to the summons. 5. Upon my giving judgment this morning, it was indicated on behalf of the State that it proposed to appeal against my decision. A question has accordingly been raised as to whether my order (shortly to be made) dismissing the application for a continuing detention order can or should be "stayed". 6. Section 22(4) of the Crimes (High Risk Offenders) Act provides that the making of an appeal "does not stay the operation of an extended supervision order, continuing detention order or emergency detention order." Curiously, that section makes no reference in dealing expressly with the question of stays to the prospect of the State seeking a stay of an order dismissing an application for a continuing detention order. 7. The State wishes for the defendant to remain in detention pending the determination of the proposed appeal. I indicated to Ms Sharp my tentative view that, even if there were power in this Court to make a further interim detention order for that purpose (which there does not appear to be), I did not see how, as a matter of logic or law, I could properly reach the conclusion necessary to sustain the making of any such order, having regard to my findings recorded in my judgment published this morning. 8. In particular, as recorded in the judgment, I am not satisfied that adequate supervision will not be provided by an extended supervision order. It followed from that conclusion that there was no power to make a continuing detention order. So far as this Court is concerned, upon the Court's reaching the conclusion that there is no lawful authority in accordance with the terms of the Act for detaining the defendant, no different conclusion could be reached against the prospect of an appeal. The matter seems to me to be one which must necessarily be dealt with by the Court of Appeal. 9. However I had, before learning of the prospect of an appeal, reached the conclusion that any extended supervision order should properly commence tomorrow rather than today so as to allow for the orderly transition of the defendant from custody to the accommodation provided for in the extended supervision order. Accordingly, I propose to extend the interim detention order by a day so as to allow for smooth transition in that respect. 10. The orders accordingly are: 1. That the application for a continuing detention order be dismissed. 2. That an extended supervision order be made on the conditions stated in the schedule to the summons omitting conditions 4 and 21 to 23. 3. Pursuant to s 18C of the Act, that the interim detention order, as renewed, is to expire at 11am on 2 September 2015 and that the extended supervision order commence at that time. 4. I specify that the term of the extended supervision order is five years from 2 September 2015. 5. Pursuant to s 20(1) of the Act, a warrant is issued for the committal of the defendant to a correctional centre until 11am on 2 September 2015. ********** 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: 03 September 2015