State of New South Wales v NW (No 3) (Preliminary) [2019] NSWSC 1510

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v NW (No 3) (Preliminary) [2019] NSWSC 1510 Hearing dates: 4 November 2019 Date of orders: 04 November 2019 Decision date: 04 November 2019 Jurisdiction: Common Law Before: Campbell J Decision: See paragraph 16 Catchwords: HIGH RISK OFFENDER – interim supervision order – whether condition in s 10A(b) met – evidence persuasive – purpose of legislation – safety of the community and protection from serious offenders Legislation Cited: Crimes (High Risk Offenders) Act 2006, s 10A Cases Cited: State of New South Wales v NW [2019] NSWSC 415 State of New South Wales v NW (Preliminary) [2019] NSWSC 999. Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) N.W. (Defendant) Representation: Counsel: P. Aitken (Plaintiff) C. Cotton (solicitor) (Defendant)

Solicitors: Crown Solicitors Office (NSW) (Plaintiff) Legal Aid Commission (NSW) (Defendant) File Number(s): 2018/333881

Judgment 1. I am dealing with an application brought by the State for the making of an Interim Supervision Order ("ISO") under the provisions of s 10A Crimes (High Risk Offenders) Act 2006 (NSW). The defendant, who was represented by Ms Cotton, solicitor, consents to the making of the orders and the parties have agreed on the conditions that ought to be imposed as part of the ISO under s 11 of the Act. 2. It seems to be settled jurisprudence of this Court that notwithstanding the consent of the parties, the Court must be affirmatively satisfied that the statutory conditions justifying the making of an ISO are met. Section 10A is in the following terms: The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. 1. There is no difficulty in relation to the first condition. Although the defendant is currently in custody, matters involving him are before the Local Court on 8 November 2019 and there is a prospect that he may be released on bail then. This Court will not be able to consider the final relief sought in the summons by then. Indeed, pursuant to orders made by Harrison J on 4 September 2019, the court appointed experts under s 7(4) of the Act have yet to examine the defendant. 2. I understand that the matter is before the High Risk Offenders List Judge, Bellew J, for further directions on 14 November next and at that time it may be that a hearing date will be fixed, assuming the appointments with the experts have been arranged. 3. I turn then to the second question, which is whether, as I have said, the matters alleged in the supporting documentation would if proved justify the making of an extended supervision order. That question depends upon the provisions of s 5B of the Act. Harrison J in an earlier decision in April this year, State of New South Wales v NW [2019] NSWSC 415, found that what might be called the preliminary matters, the subject of s 5B paras (a)-(c) of the Act, had been satisfied and it is not in dispute that those matters were then established. There has been no further evidence or suggestion of any material change in circumstances which would justify the Court revisiting Harrison J's findings, bearing in mind that notwithstanding, perhaps, there quasi-criminal nature, the proceedings fall to be determined by the Court in the exercise of its civil jurisdiction. 4. The real question for determination then for the purpose of s 10A(b) is whether the matters alleged in the supporting documentation would justify the Supreme Court being satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence, if not kept under an extended supervision order. That is say, if the matters alleged were proved at the final hearing. 5. Harrison J dealt with this issue for the purpose of s 7(4) of the Act in his second decision in State of New South Wales v NW (Preliminary) [2019] NSWSC 999. Having reviewed the material placed before him for that purpose his Honour made the following findings (at [18]): Based on the foregoing, I am satisfied if the matters alleged in the material before me were proved, the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. The defendant admits to having a continuing sexual attraction to children. He has been diagnosed as having a paraphilic disorder. He allegedly admitted only last year that he has had thoughts of re-offending and he has been assessed as posing a high risk of re-offending by Dr Parker. 1. Dr Parker is a senior psychologist employed in the Serious Offenders Assessment Unit of Corrective Services New South Wales, part of the Department of Justice. His report is part of the materials before me, to which I have had regard. A second affidavit of Dr Parker of 8 March 2019 confirmed that additional material he was asked to review did not in any way alter the opinions he expressed in his first report. 2. I have also received a risk management report by Erin Kirkwood, a Senior Community Corrections Officer and an affidavit affirmed by her of 12 March 2019, in which she considered other material which she said did not change her views. It seems to me, on the basis of the information contained in her report, that the defendant can be properly managed in the community, if subject to an extended supervision order. 3. As I have said, although the jurisprudence of the Court suggests that these matters have to be considered by a judge for himself or herself notwithstanding the consent of the defendant, I am of the view that given: that Harrison J has considered these issues on two separate occasions; there is no real difference in substance between the question I have to consider for the purpose of s 10A and the question he considered for the purpose of s 7(4); and there has been no suggestion of new material or a change in circumstances, the Court is justified in acting on the basis of the previous interlocutory decision of another judge who has fully considered the material. 4. Moreover, it may be said that as we are speaking of civil proceedings the consent of the defendant, if not determinative, at least may be taken as an admission of all necessary facts underlying the exercise of the Court's power. There is certainly no question here, however, in respect of the making of an interim supervision order or in imposing the conditions to which the defendant will be subject, that the Court is being invited to make orders and impose conditions which are in any way beyond power. In those circumstances, being so satisfied, it seems to me that it is not necessary that I engage in any deep review or analysis of the material. 5. One only has to consider that this is the third time this matter, at the preliminary stage, has come before a judge. It cannot have been the intent of the legislature that given the somewhat truncated process that has been followed in this particular case - I hasten to interpolate for good reasons fully explained in Harrison J's previous decisions - that either he on each occasion that he reviewed the matter or me, coming to it on the third occasion, would have to, as it were, consider in detail all of the mandatory statutory considerations which inform the making of an extended supervision order under s 9 of the Act, to answer the question posed by s 10A(b). 6. Having regard to the evidence I have read, I am satisfied that the conditions which are annexed to the amended summons, which I gave leave to be filed in court this morning, are appropriate. I have taken into account that these conditions have been the subject of discussion and negotiation between the experienced lawyers representing the parties. It may be noted that, as is not uncommon, they are stringent. But having regard to the evidence, and in particular the defendant's ongoing criminal history, in this area a degree of stringency is called for. 7. Although this matter will be dealt with over the next two or three months in all probability, I record that the evidence satisfies me, as is my experience in similar matters, that the most intrusive or burdensome conditions are by large measure discretionary and it is the aim of the Department to ameliorate the burden of them, provided that the defendant fully complies and makes progress towards his rehabilitation. I remind myself that rehabilitation is not the primary purpose of the legislation, the safety of the community and its protection from serious offenders is. 8. In any event, for those reasons I am satisfied that the condition in s 10A(b) has been met and the evidence persuades me, to the extent to which the question is discretionary, that I should make an ISO and that the conditions proposed are appropriate for the purpose of s 11 of the Act. 9. Accordingly I make the following orders: 1. Pursuant to section 10A of the Crimes (High Risk Offenders) Act 2006 ("the Act") the defendant is subject to an interim supervision order from 8 November 2019 for a period of 28 days. 2. Pursuant to section 11 of the Act, that the defendant comply with the conditions set out in the Schedule below for the period of the interim supervision order. 3. The parties may apply to relist the matter on two days notice. 4. For the avoidance of any doubt, to the extent to which it may be necessary, I confirm the orders made by Harrison J on 4 September 2019.