State of New South Wales v Hudson (Preliminary) [2019] NSWSC 194

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Hudson (Preliminary) [2019] NSWSC 194 Hearing dates: 25 February 2019 Date of orders: 07 March 2019 Decision date: 07 March 2019 Jurisdiction: Common Law Before: N Adams J Decision: See orders at [76] Catchwords: HIGH RISK SEX OFFENDER – preliminary hearing – orders sought by the State not opposed – no question of principle Legislation Cited: Crimes Act 1900 (NSW), s 33(1)(b) Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 5B, 7, 9 Cases Cited: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 State of New South Wales v Sharpe [2017] NSWSC 469 Lynn v State of New South Wales [2016] NSWCA 57 State of New South Wales v Fisk [2013] NSWSC 364 State of New South Wales v Wilde [2014] NSWSC 305 State of New South Wales v Kamm (Final) [2016] NSWSC 1 State of New South Wales v Pacey [2015] NSWSC 1983 Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) Ian James Hudson (Defendant) Representation: Counsel: Mr P Aitken (Plaintiff) Mr Z Khan (Defendant)

Solicitors: NSW Crown Solicitor (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2019/30902 Publication restriction: Nil

Judgment 1. On 22 February 2019, the State of New South Wales ("the State") filed an amended summons seeking certain orders under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") in respect of the defendant, Ian James Hudson. The ultimate relief sought by the State in its summons is a high risk sexual offender extended supervision order ("ESO") for a period of three years pursuant to ss 5B and 9(1)(a) of the Act. 2. On 26 February 2019, a preliminary hearing was conducted before me as required by s 7(3) of the Act. At the hearing, the State sought interim orders that two experts be appointed to examine the defendant and also that he be made subject to an interim supervision order ("ISO") for 28 days from 8 March 2019 under ss 7(4) and 10A of the Act respectively. 3. There is a warrant in existence for the return of the defendant to Victoria to serve the balance of his parole for Victorian sex offences, an estimated 287 days, on the basis of a breach of a condition of parole (the nature of the breach has not been disclosed in documents available to the State). It is anticipated that the defendant is to be the subject of extradition proceedings immediately on his release from custody for the present sentence. As a consequence, the State has sought an expedited hearing of the preliminary application before the date of the defendant's release from custody at the expiry of his index offence sentence. 4. This matter is complicated by the fact that the defendant's likely time in custody in Victoria would delay the final hearing and the making of any final orders. Any assessment of the defendant by court-appointed experts will need to be delayed until a date to be fixed by the court, in order to have the defendant assessed at a time closer to the date of any final hearing. In addition, it was accepted on behalf of the State that insofar as risk assessment is concerned, there may well be evidence suggestive of a reduction in risk if the defendant completes further treatment in Victorian custody. If such material becomes available it will be tendered at any final hearing. 5. A number of affidavits were read without objection at the preliminary hearing. The State relied upon three affidavits of Shawanah Tanseem affirmed on 18 December 2018, 29 January 2019 and 8 February 2019 respectively. In addition, two folders of documents which accompanied the affidavit of 4 September 2018 were admitted and marked Exhibit ST-1.The defendant relied upon the affidavit of Patrick Carter affirmed 20 February 2019. It was noted that Mr Hudson will have completed the CUBIT program by the time of any final hearing in this matter. Although the CUBIT completion report is not available at this time, it will be by the time of any final hearing. 6. The conditions proposed by the plaintiff to apply in the event that an interim supervision order ("ISO") is made include conditions requiring the defendant to return to New South Wales on release from serving the balance of his parole in Victoria. Thus, if an ISO were to be made by the court, its operation would be suspended. 7. Counsel for the State and the defendant provided written submissions which helpfully narrowed the issues in dispute before me. The defendant accepted that the statutory criteria for making these interim orders were capable of being satisfied. Accordingly, the dispute was limited to the conditions that ought to be imposed by any ISO. Despite the fact that the orders were not opposed, it was accepted that the statutory test requires me to be satisfied of individual criteria before making the orders. I am required to form my own view as to whether the relevant statutory criteria are satisfied and whether the orders ought to be made. The fact that the orders were not opposed has been of considerable assistance.