State of New South Wales v Sutton [2017] NSWSC 787

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Sutton [2017] NSWSC 787 Hearing dates: 25 May 2017 Decision date: 25 May 2017 Jurisdiction: Common Law Before: McCallum J Decision: Determination of terms of any interim supervision order reserved for determination by trial judge Catchwords: HIGH RISK OFFENDERS – application for interim supervision order – dispute as to appropriate accommodation – where proceedings listed for final hearing on a date before the defendant's release date – desirability of reserving determination of dispute for determination by trial judge if necessary Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), s 7(4) Category: Procedural and other rulings Parties: State of New South Wales (plaintiff) Eric Mitchell Sutton (defendant) Representation: Counsel: G Martin (solicitor for the plaintiff) S Redding (solicitor for the defendant)

Solicitors: NSW Crown Solicitor's Office (plaintiff) Legal Aid NSW (defendant) File Number(s): 2017/106421

Judgment 1. HER HONOUR: These are proceedings under the Crimes (High Risk Offenders) Act 2006 (NSW). In accordance with the regime mandated by that legislation, the State had the proceedings listed for preliminary hearing. That hearing came before me on 1 May 2017. The determination of the issues required to be determined by the Court at a preliminary hearing was expedited by the provision on behalf of the defendant of careful written submissions in which it was conceded, for the purpose of the preliminary hearing only, that the Court might be satisfied in the terms of the statute such as to warrant the appointment of two qualified psychiatrists or psychologists to examine the defendant in accordance with s 7(4) of the Act. 2. There was one further issue outstanding on that date. The State applied for an interim extended supervision order. The defendant did not oppose the making of such an order but sought to be heard on one issue, namely, accommodation. The order proposed on behalf of the State contemplated that the defendant would be required to reside at accommodation approved by an appropriate officer. The evidence indicated that accommodation would be approved in one of the COSP facilities, or residential rehabilitation, or like-structured supervised accommodation. 3. For his part, the defendant wished to put forward a proposal that he be permitted to reside with a family member. There was some support for the good sense of that proposal in a risk assessment report prepared by Mr Ardasinski, who expressed the opinion that supervision in conjunction with "good support from his family could minimise the risk of behaviour that may otherwise result in a violent offending scenario". 4. However, the position taken by the State at that stage was that the accommodation proposal put forward by the defendant was not regarded to be acceptable. In those circumstances, and there being a need for further evidence on that issue, on 1 May 2017 I made orders appointing the two qualified specialists to examine the defendant, but stood over to today the question of the appropriate conditions for any interim supervision order. 5. In the meantime the State has obtained a hearing date for the final hearing of its application. That date is 30 June 2017 which, as it turns out, is the day before the defendant's sentence expires. Accordingly, at this stage there is no need for an interim supervision order before the hearing date. Having regard to the volume of material ordinarily provided in applications of this kind, it seems likely that there will be a need for an interim regime between the time when the judge hears the application and the time when the application is able to be determined by that judge, although that is not certain. In any event, it was proposed on behalf of the State that the question of any interim supervision order might more appropriately, in the circumstances, be considered by the trial judge. 6. There are two reasons why that approach commends itself. First, the judge hearing the final application will have more information than is available to me to determine the appropriate interim supervision order; in particular, he or she will have available the reports of the two specialists appointed by me on 1 May 2017. One may readily accede to the proposition that the issue of suitable accommodation, which is important to both parties, is better determined by reference to more rather than less information. 7. Secondly, there is a prospect that the dispute concerning the appropriate accommodation for the defendant in any interim or final supervision order will be resolved. Both parties are investigating that issue and it is anticipated that there will be further evidence as to the result of those investigations and considerations at the final hearing. 8. For those reasons, I consider it appropriate to accede to the proposition respectfully suggested on behalf of the State by Mr Martin, the solicitor who appears for the State today. In the circumstances, there is no need to make any order today, other than to confirm the listing for final hearing on 30 June 2017.