Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Vincent [2017] NSWSC 1855 Hearing dates: 27 April 2017 Decision date: 27 April 2017 Jurisdiction: Common Law Before: McCallum J Decision: Interim supervision order extended Catchwords: CRIME – high risk sex offender – application for extension of interim supervision order made by another member of the Court – proper approach – no fresh evidence to suggest lack of compliance with previous order – requirement of procedural fairness – appropriateness of acceding to evaluative judgment formed by other member of the Court after contested hearing Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), s 10A Cases Cited: State of New South Wales v Donovan [2015] NSWCA 280 Category: Procedural and other rulings Parties: State of New South Wales (plaintiff) Aaron David Vincent (defendant) Representation: Counsel: C Butler (plaintiff) T Reynolds (defendant) Solicitors: Crown Solicitors NSW (plaintiff) Legal Aid NSW (defendant) File Number(s): 2017/67684 Judgment 1. HER HONOUR: These are proceedings brought by the State of New South Wales under the Crimes (High Risk Offenders) Act 2006 (NSW). The State contends that the defendant, Mr Aaron Vincent, is a high risk sex offender. 2. The summons seeks a high risk sex offender continuing detention order as the primary relief sought. In accordance with the procedure prescribed by the Act, the proceedings came before the Court (Fagan J) for preliminary hearing on 28 March 2017. On that occasion, consistent with the final relief sought, the State sought an interim detention order. To make that order, Fagan J would have to have been satisfied that adequate supervision would not be provided by an extended supervision order. His Honour was not satisfied in those terms and, accordingly, made an interim supervision order rather than the interim detention order sought by the State. 3. The proceedings are listed for final hearing on 23 June 2017. The interim supervision order made by Fagan J expires on 30 April 2017. Accordingly, it is necessary for the State to seek a further interim supervision order, since the offender's current supervision will expire before the proceedings are determined: see s 10A of the Act. 4. The application raises an interesting question as to the appropriate approach when the court is asked to extend an interim supervision order made by another member of the court. 5. As explained by the Court of Appeal in State of New South Wales v Donovan [2015] NSWCA 280, the determination whether to make an interim detention order or an interim supervision order is an evaluative judgment to be undertaken by the Court by reference to all of the circumstances. On the strength of the material placed before the Court at the preliminary hearing, which I have read in preparation for today's application, I am not confident that I would have been satisfied in the terms in which Fagan J was satisfied at the earlier hearing (in other words, I apprehend I may have been satisfied that adequate supervision would not be provided by an extended supervision order). 6. However, I am mindful of the fact that an evaluative judgment of that issue was undertaken by Fagan J after a contested hearing and on the strength of all of the evidence put before his Honour. The State does not seek to traverse his Honour's ruling today. 7. I am also mindful of the fact that the assessment undertaken by Fagan J was prospective. There is no fresh evidence today and, in particular, no evidence to suggest that there has been anything other than complete compliance with the regime imposed by the interim supervision order made by his Honour. If anything, the case for extension of the regime of interim supervision should be regarded as being fortified by the experience of the order to date. 8. Whilst it remains a matter of discretion, I consider the appropriate approach for a Court asked in those circumstances to extend an interim supervision order made by another member of the same Court will ordinarily be to accede to the judgment formed by the other member of the Court. To proceed otherwise would raise an obvious issue of procedural fairness. Accordingly, notwithstanding my own reservations, I am satisfied that it is appropriate to extend the order made by Fagan J. 9. In particular, I would record that I am satisfied, in the terms of s 10A, that the offender's current supervision will expire before the proceedings are determined and I am satisfied that the matters alleged in the supporting documentation would, if proved, justify at least the making of a high risk sex offender extended supervision order. For those reasons, there being no different application before the Court, I make the orders sought in the short minutes of order. ********** 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 May 2018