Citation: Attorney General v Jamieson [2007] NSWSC 465
Court: Supreme Court of New South Wales, Common Law Division
Date: 11 May 2007
Judge(s): Hidden J
Background
The Attorney General commenced proceedings against the defendant, a convicted sex offender, seeking a continuing detention order for five years under the Crimes (Serious Sex Offenders) Act 2006 (NSW) or, alternatively, an extended supervision order for the same period. The defendant had served an aggregate sentence of ten and a half years for a series of sexual offences committed against boys and youths aged between nine and seventeen, with a prior history of similar offending dating to 1973.
Because the defendant's sentences were due to expire on 11 May 2007, before any final hearing could be conducted, the Attorney General made an urgent application for an interim detention order of 28 days under s16 of the Act. The defendant did not oppose an interim supervision order but contested the application for interim detention.
Two late developments arose during the hearing: counsel informed the court that the defendant was likely to be deported upon release, and it emerged the following day that he had recently been charged with further sexual offences. These matters materially shaped the court's approach to the appropriate length of any interim order.
Legal Issues
- Whether the supporting documentation was sufficient to satisfy the threshold under s16(1)(b) of the Act, namely that the matters alleged would, if proved, justify the making of either a continuing detention order or an extended supervision order.
- Whether, assuming the statutory threshold was met, the court retained a residual discretion to decline to make an interim detention order.
- What the appropriate duration of any interim detention order should be, given the uncertain and rapidly evolving circumstances surrounding the defendant's position.
Decision
Section 16(1) permits an interim detention order where two conditions are met: the offender's current custody will expire before the final proceedings are determined, and the matters in the supporting documentation would, if proved, justify a continuing detention order or extended supervision order. Hidden J noted that, at the interim stage, the court proceeds on the assumption that the matters in the supporting documentation are proved, leaving little opportunity for the defendant to test the Attorney General's evidence.
Hidden J was satisfied that the evidentiary threshold under s16(1)(b) was met. The supporting material included assessments placing the defendant at high risk of reoffending, a lengthy history of sexual offending against children across several decades, limited engagement with rehabilitation programmes, and a finding that the most appropriate form of treatment remained available only within the prison system.
The court declined to resolve the question of whether a residual discretion exists to refuse an interim detention order once the statutory test is satisfied, finding it unnecessary to do so on the facts. Instead, Hidden J turned to the appropriate duration of the order. Given the late emergence of fresh criminal charges and the prospect of deportation, the court considered a 28-day order disproportionate when the defendant's circumstances might change quickly and render detention unnecessary. A shorter order was preferred so that the position could be reviewed promptly.
Accordingly, an interim detention order for seven days was made, with the matter listed for review on 17 May 2007 to allow further information to be obtained and any further application to be heard. The court noted that under s19(1) of the Act any such order could be varied or revoked in light of developments.
Orders Made
- Interim detention order made for a period of 7 days from 11 May 2007.
- Matter listed before Hidden J on 17 May 2007 for review and any further application.
Key Takeaways
- Under s16(1)(b) of the Crimes (Serious Sex Offenders) Act 2006, an interim detention order is available where the supporting documentation, taken at face value, would justify either a continuing detention order or an extended supervision order. The threshold is lower than for a final order: the court need not be satisfied to a high degree of probability at the interim stage.
- An interim detention order may be made even where the material does not conclusively establish that extended supervision would be inadequate, because s16(1)(b) is satisfied if the documentation would justify an extended supervision order alone.
- The question of whether the court retains a residual discretion to refuse an interim detention order once the statutory test is met was left open by Hidden J, consistent with Hall J's approach in Attorney General v Quinn [2007] NSWSC 456.
- Where circumstances surrounding an offender are genuinely uncertain and rapidly evolving, including the prospect of deportation or pending fresh charges, the court may make an interim order of shorter duration than the maximum sought and schedule an early review rather than commit to the full period requested.
- Section 19(1) of the Act provides a mechanism for varying or revoking an interim detention order, which the court identified as relevant to the proportionality of the order's duration.
Legislation and Cases Referenced
Legislation
- Crimes (Serious Sex Offenders) Act 2006 (NSW), ss 4, 5, 8, 9, 16, 17, 19
- Dangerous Sexual Offenders Act 2006 (WA)
Cases
- Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340
- Attorney General for the State of New South Wales v Tillman [2007] NSWSC 356
- Attorney General for the State of New South Wales v Quinn [2007] NSWSC 456
- Director of Public Prosecutions for Western Australia v Mangolamara [2007] WASC 71
- Director of Public Prosecutions for Western Australia v Mangolamara [2006] WASC 172
- Briginshaw v Briginshaw (1938) 60 CLR 336