State of New South Wales v Banks [2016] NSWSC 926

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Banks [2016] NSWSC 926 Hearing dates: 14 March 2016 Date of orders: 24 March 2016 Decision date: 04 July 2016 Jurisdiction: Common Law Before: Rothman J Decision: Orders in accordance with judgments delivered on 24 March 2016 and 18 April 2016. Catchwords: HIGH RISK SEX OFFENDER – Continuing Detention Order sought – no therapeutic value – granted for one month only to allow accommodation and other ancillary issues to be resolved – Extended Supervision Order granted – discussion of conditions. Legislation Cited: Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Attorney General for the State of New South Wales v McGuire [2015] NSWSC 152 Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355 Seaman's Union v Utar Development Company (1978) 144 CLR 120 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Richard Anthony Banks (Defendant) Representation: Counsel: T Hammond (Plaintiff) A Cook (Defendant)

Solicitors: Crown Solicitor's Office NSW (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2015/366771

Judgment 1. HIS HONOUR: On 24 March 2016, the Court, as presently constituted, issued orders under the Crimes (High Risk Offenders) Act 2006 that the defendant, Richard Anthony Banks, be subject to a High Risk Offender Continuing Detention Order for a period of one month, commencing 28 March 2016. The defendant's term of imprisonment for the second index offence concluded on 27 March 2016. 2. At the same date, 24 March 2016, the Court issued orders that the defendant be subject to a High Risk Sex Offender Extended Supervision Order for a period of three years from 27 April 2016 and reserved for a later date the conditions the Court would impose under such Extended Supervision Order ("ESO"). 3. On 18 April 2016, the Court issued orders continuing the order of 24 March 2016 imposing an ESO and specified the conditions with which the defendant must comply during the ESO. 4. On both 24 March 2016 and 18 April 2016, the Court reserved reasons for decision. These are the reasons. 5. The State of New South Wales made application for a Continuing Detention Order and an ESO by summons filed 14 December 2015. The requirements for such an application are that it be made no earlier than six months before the release of the defendant and that such an order be made while the defendant is either in detention or subject to a supervision order earlier made. There are preliminary issues with which the Court usually deals and on 14 January 2016, the Court, Adams J, issued an interim detention order and appointed two experts to furnish psychiatric/ psychological reports. 6. By way of amended summons filed 9 March 2016, the State of New South Wales sought a Continuing Detention Order for a period of nine months from the date of the order and an ESO for a period of five years, the latter under conditions that were specified in the amended summons. In the alternative, the State of New South Wales sought an ESO for five years from the date of the order. 7. The defendant appeared and was represented. The defendant did not oppose the making of an ESO, but resisted an ESO for the period of five years. An ESO, once made, can be renewed or reissued. The defendant proposed that the ESO be for a period of 2 years. 8. The defendant also sought certain variations to the wording of the conditions proposed by the State of New South Wales. 9. As is obvious from the foregoing, the defendant opposed the issuing of a Continuing Detention Order and, in the alternative, proposed that the Court make a Continuing Detention Order of a significantly shorter duration than the nine months proposed by the State of New South Wales. 10. As a consequence of the position of the defendant, the only substantive issues in the application before the Court are whether a Continuing Detention Order ought to have issued at all and, if so, its length and the conditions on which an ESO should issue, including the duration of such an order. Notwithstanding the agreement of the defendant as to the conditions precedent for the issuing of an ESO, it is for the Court to be satisfied of those conditions precedent and the Court will briefly discuss the issues associated therewith. For obvious reasons, it is unnecessary to do so in great detail.