Citation: State of New South Wales v Richardson (No. 2) [2011] NSWSC 276
Court: Supreme Court of New South Wales
Date: 3 June 2011
Judge: Davies J
Background
The defendant was convicted in 1995 of four serious offences arising from an attack on a lone woman near a beach in Byron Bay in December 1994: assault with an offensive weapon with intent to rob, two counts of aggravated sexual assault, and attempted murder. He received sentences totalling a maximum of 16 years, with an earliest parole date of December 2004. Despite being eligible for parole at that point, he was not released and served the full term.
Shortly before his sentence expired in December 2010, the State of New South Wales applied under the Crimes (Serious Sex Offenders) Act 2006 for either a continuing detention order or an extended supervision order. The application was only possible at that late stage because amending legislation, which came into force on 7 December 2010, expanded the circumstances in which such applications could be made, including where a serious sex offence was being served alongside other offences.
The defendant had diagnosed paranoid schizophrenia, Anti-Social Personality Disorder, and alcohol and cannabis dependence. By the time the final hearing took place, he had been scheduled (involuntarily detained) under the Mental Health Act 2007, which affected the procedural posture of the proceedings.
Legal Issues
- Whether the defendant posed an unacceptable risk of committing a serious sex offence if not kept under supervision, to the required standard of high degree of probability
- Whether a continuing detention order (full custodial detention) was necessary, or whether an extended supervision order (community-based supervision with conditions) would provide adequate supervision
- How the defendant's current involuntary detention under the Mental Health Act 2007 interacted with the orders available under the Crimes (Serious Sex Offenders) Act 2006
- What duration and conditions an extended supervision order should carry, given the nature and complexity of the defendant's mental health needs
Decision
Davies J was satisfied to the requisite high degree of probability that the defendant posed an unacceptable risk of committing a serious sex offence if not kept under supervision. That finding was based on the nature and gravity of the index offences, the defendant's significant psychiatric diagnoses, his substance dependencies, and expert evidence from psychiatrists and psychologists about the extended period of intervention his rehabilitation would require.
The Court was not satisfied, however, that a continuing detention order (effectively ongoing imprisonment) was necessary. Expert opinion indicated that appropriate supervision could be achieved through an extended supervision order, rather than custodial detention. The Court also noted several factors relevant to the degree of risk going forward: the defendant was now almost 44 years old (16 years older than at the time of the offences), had suffered a severe heart attack during proceedings that nearly proved fatal, and had behaved without fault during the court hearing, at a time when he was compliant with his medication.
The Court acknowledged that the defendant's existing detention under the Mental Health Act 2007 provided an available mechanism to address immediate concerns about self-harm and risk to others, pending stabilisation of his condition to the satisfaction of his treating psychiatrist. Davies J considered that the extended supervision order should run for five years, reflecting expert evidence about the length of time needed to assist the defendant.
On conditions, the Court directed the parties to prepare Short Minutes of Order, with specific reference to conditions proposed in an affidavit filed in the proceedings and conditions previously imposed in the Queensland decision of Attorney-General v Fisher [2007] QSC 341.
Orders Made
- The Court found the defendant posed an unacceptable risk of committing a serious sex offence if not supervised, to a high degree of probability.
- A continuing detention order was refused.
- An extended supervision order for a period of five years was made under the Crimes (Serious Sex Offenders) Act 2006.
- The parties were directed to bring in Short Minutes of Order setting out the conditions of the extended supervision order, with reference to conditions proposed in Mr Rowan's briefing note and those imposed in Fisher at [41].
Key Takeaways
- Under the Crimes (Serious Sex Offenders) Act 2006, the court must be satisfied to a high degree of probability that an unacceptable risk exists before making either a continuing detention order or an extended supervision order; the two orders are distinct, and the more restrictive custodial option requires a finding that supervision in the community would not be adequate.
- The Supreme Court confirmed that an extended supervision order rather than continuing detention was appropriate where expert psychiatric and psychological evidence supported community-based supervision as sufficient.
- Concurrent or intersecting detention under the Mental Health Act 2007 does not preclude an application or order under the serious sex offenders legislation, though the court treated the Mental Health Act framework as a relevant mechanism for managing immediate risk.
- A defendant's age, significant deterioration in physical health, and medication compliance during proceedings were treated as contextually relevant considerations, without being determinative, in assessing the degree of risk and appropriate order.
- The 2010 amendments to the Crimes (Sentencing Procedure) Act expanded the circumstances in which an application under the serious sex offenders regime can be made, including where a serious sex offence is served concurrently or consecutively with another offence.
Legislation and Cases Referenced
Legislation:
- Crimes (Serious Sex Offenders) Act 2006 (NSW)
- Crimes (Serious Sex Offenders) Amendment Act 2010 (NSW)
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)
- Mental Health Act 2007 (NSW)
- Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
Cases:
- Attorney-General v Fisher [2007] QSC 341
- Cornwall v Attorney General for New South Wales [2007] NSWCA 374
- Director of Public Prosecutions (WA) v GTR (2008) 198 A Crim R 149
- Director of Public Prosecutions (WA) v Williams (2007) 176 A Crim R 111
- Fardon v Attorney-General (Qld) (2004) 223 CLR 575
- In re G (A minor) [1987] 1 WLR 1461
- M v M (1988) 166 CLR 69
- State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
- Tillman v Attorney-General for the State of New South Wales [2007] NSWCA 327
- TSL v Secretary to the Department of Justice (2006) 14 VR 109