State of NSW v Myers [2018] NSWSC 1789

Supreme Court New South Wales

Medium Neutral Citation: State of NSW v Myers [2018] NSWSC 1789 Hearing dates: 21 November 2018 Date of orders: 21 November 2018 Decision date: 21 November 2018 Jurisdiction: Common Law Before: Bellew J Decision: (1) The order of McCallum J of 11 December 2008 pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 (NSW), for an extended supervision order in respect of the defendant for a period of two years, is revoked pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006. Catchwords: HIGH RISK OFFENDER – Revocation of Extended Supervision Order – No point of principle Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Serious Sex Offenders) Act 2006 (NSW) Category: Procedural and other rulings Parties: State of NSW – Plaintiff Troy Shannon Myers – Defendant Representation: Counsel: J Emmett – Plaintiff A Coultas-Roberts – Defendant

Solicitors: File Number(s): 2008/286967 Publication restriction: Nil

Judgment – Ex tempore (revised) 1. Before the Court is a notice of motion filed on 31 October 2018 by the plaintiff in these proceedings seeking that an order made by McCallum J on 11 December 2008, pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2016 (NSW), for an extended supervision order in respect of the defendant for a period of two years, be revoked pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006 (NSW). 2. The order sought is not opposed by the defendant. The notice of motion is supported by an affidavit of Emma Moss, Solicitor, affirmed on 30 October 2018. I have also been provided with exhibit EM1 to that affidavit. 3. I draw the following summary of the background of the matter from Ms Moss' affidavit. 4. On 11 December 2008, McCallum J made final orders in proceedings brought against the defendant pursuant to s 9(1) of the Crimes (Serious Sex Offenders) Act 2006. Those orders included an order that the defendant be subject to an extended supervision order for a period of two years commencing on 11 December 2008. 5. A criminal history report since obtained by the plaintiff demonstrates that since the extended supervision order was made, the defendant has breached the conditions of his supervision on a total of 11 occasions. In addition to those breaches, the defendant has also been convicted of an offence of armed robbery which occurred in 2011, and in respect of which he was sentenced at the Campbelltown District Court on 3 May 2012 to a non-parole period of two years and four months imprisonment, with an additional term of one year. 6. The defendant's most recent breach of the extended supervision order occurred on 28 January 2018. As a consequence, he is currently in custody and is eligible for release on 27 November this year. Upon his release he will be subject to parole until 27 June 2019. 7. The orders made by McCallum J had the effect of subjecting the defendant to an extended supervision order for a period of two years which was due to expire on 10 December 2010. On 18 May 2011, upon release from custody, the defendant was advised that the order had expired. The defendant was subsequently returned to custody in late 2011 for the offending to which I referred in [5] above. 8. He was again released from custody on 28 August 2014 and was advised at that time that the orders made by McCallum J had not expired on 10 December 2010. 9. As a consequence of legislative amendments which had come into effect three days earlier, the effect of those amendments was to extend the duration of an extended supervision order by any period during which the order was (for want of a better term) suspended whilst an offender was in custody. As a consequence of a combination of all of these factors, the defendant continues to be subject to the extended supervision order made by McCallum J in 2008. As matters presently stand, that order is due to expire on 27 May 2019. 10. Included in the exhibit to the affidavit of Ms Moss, is a report provided by Ms Natalie Rangelov, a Community Corrections Officer, of 8 August 2018. Having discussed the history of the matter, the defendant's response to the extended supervision order, and his previous failures to comply with its terms, Ms Rangelov reached the following conclusion: Mr Myers remains on an ESO some ten years after it was initially implemented. He has continued to return to custody due to repeated breaches by virtue of drug use and general noncompliance. As a result of short periods of time spent in the community, Mr Myers has not had the opportunity to properly attempt to address his illicit drug use and mental health issues. Whilst Mr Myers' ongoing drug use is of concern, there has been no indication of any sexual offending during periods of supervision nor does it appear that his risk of sexual re-offending has increased. Therefore, it is recommended that Mr Myers' extended supervision order be varied and supervision in accordance with the ESO provisions be discontinued. He will then be released on parole and is subject to supervision where he can be referred to appropriate interventions to address his ongoing drug use given he will be able to remain in the community for longer periods of time even if he does relapse given discretion in relation to drug use whilst on parole." 1. Within the material provided to me is a further report by Samuel Ardasinski which I have read and taken into account in my determination of the notice of motion. 2. The order that I am asked to make is one pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006 (NSW). That section confers a power on this Court to vary or revoke a supervision order in the following terms: Supervision order may be varied or revoked (1) The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State or the offender. (1A) The period of an order must not be varied so that the period is greater than that otherwise permitted under this Part. (1B) Without limiting the grounds for revoking an extended supervision order or interim supervision order, the Supreme Court may revoke an extended supervision order or interim supervision order if satisfied that circumstances have changed sufficiently to render the order unnecessary. (2) For the purpose of ascertaining whether to make such an application in relation to an extended supervision order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months. (3) The report must indicate whether the Commissioner considers the continuation of the extended supervision order to be necessary and appropriate. 1. It will be evident from the provisions of s 13(1B) that the Court is given the power to revoke an extended supervision order if it is satisfied that circumstances have changed sufficiently to render the order unnecessary. I am satisfied that such a state of affairs has been reached in the present case. In particular, the report of Ms Rangelov to which I have referred satisfies me that the defendant's change in circumstances renders the continuation of order unnecessary, in light of the fact that he will be supervised when released on parole. 2. Accordingly and for those reasons, I make the following order: 1. The order of McCallum J of 11 December 2008 pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 (NSW), for an extended supervision order in respect of the defendant for a period of two years, is revoked pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006 (NSW).