Citation: State of New South Wales v Conway [2011] NSWSC 588
Court: Supreme Court of New South Wales
Date: 17 June 2011
Judge(s): Simpson J
Background
The State of New South Wales applied under the Crimes (Serious Sex Offenders) Act 2006 for orders in respect of a defendant who was serving a sentence of imprisonment for a serious sex offence. The defendant had an intellectual disability and was, at the time of the hearing, housed in a reasonably secure facility at Woolgoolga. He had expressed a wish to reside with his mother, in the same area where his offence had been committed and where contact with the victim and other children was a possibility.
The application was filed on 3 May 2011, with an amended summons filed on the day of the hearing, 14 June 2011. The defendant opposed the application.
Because the defendant's existing custody was due to expire before the proceedings could be fully determined, the State sought, as an immediate step, an interim supervision order of 28 days alongside orders for the appointment of two qualified psychiatrists to conduct separate examinations.
Legal Issues
- Whether the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order under s 9 of the Act, so as to satisfy the preconditions for an interim supervision order under s 8.
- How the term "criminal history" in s 9(3)(h) should be construed, particularly whether it extends beyond formal convictions and findings of guilt.
- The manner and extent to which admissions of uncharged sexual misconduct may be taken into account.
- The proper construction of the "unacceptable risk" test in s 9(2), including two competing approaches emerging from recent case law.
- Whether a condition requiring the defendant to reside in accommodation pre-approved by the Departmental Supervising Officer was appropriate as an interim measure.
Decision
Simpson J noted that s 8 imposes two preconditions for an interim supervision order: that the offender's current custody or supervision will expire before proceedings are determined, and that the matters alleged in the supporting documentation would, if proved, justify making an extended supervision order. Her Honour was satisfied that both preconditions were met.
On the construction of the "unacceptable risk" test in s 9(2), two recent Supreme Court decisions had taken different approaches. In Thomas (Preliminary), R A Hulme J framed the test as whether the risk of committing a serious sex offence was present to a sufficient degree that community safety could not be ensured without an order. In Darrego, McCallum J drew on the concept of "material risk" from medical negligence. Simpson J expressed a preference for the approach in Thomas, on the basis that it drew directly on the objects and language of the Act rather than importing concepts from a different area of law, though her Honour declined to express a final view.
Regarding the admissions of uncharged sexual misconduct and the construction of "criminal history," the judgment addressed the manner in which such material could be considered, though the excerpts available indicate the analysis sat alongside other factors under s 9(3). Her Honour was satisfied that the supporting documentation, taken at its highest, would justify an extended supervision order if proved.
On the disputed accommodation condition, Simpson J accepted that requiring pre-approval of accommodation by the Departmental Supervising Officer was appropriate as an interim measure. The defendant's preferred residence was in the same location as the offence, where contact with the victim and other children remained a risk.
Orders Made
- Orders under s 7(4) appointing two qualified psychiatrists to conduct separate examinations of the defendant and directing the defendant to attend those examinations.
- An interim supervision order under s 8(1) for the period 18 June 2011 to 15 July 2011, subject to conditions including a requirement that the defendant reside in accommodation approved in advance by the Departmental Supervising Officer.
Key Takeaways
- Simpson J preferred the construction of "unacceptable risk" in s 9(2) articulated in Thomas (Preliminary), namely that the risk must be present to a degree sufficient that community safety cannot be ensured without an order, rather than the "material risk" formulation drawn from medical negligence law in Darrego. Neither judge had expressed a final view, and nor did Simpson J.
- Under the Crimes (Serious Sex Offenders) Act 2006, an interim supervision order may be made at the preliminary hearing stage where the supporting documentation, if proved, would justify an extended supervision order. The court does not need to resolve factual disputes at that stage.
- Where a defendant has an intellectual disability and has made admissions of uncharged sexual misconduct, such material can form part of the factual foundation considered at the preliminary hearing, though the judgment does not settle the outer limits of how such admissions are weighted.
- Accommodation conditions requiring pre-approval by a supervising officer may be imposed as part of an interim supervision order, particularly where the defendant's preferred residence is near the offence location and raises contact risks with victims or other children.
- The Act's time pressure provisions, including the six-month application window and the 28-day preliminary hearing requirement, directly shape the procedural context in which interim orders are sought and made.
Legislation and Cases Referenced
Legislation:
- Crimes (Serious Sex Offenders) Act 2006 (NSW), ss 3, 4, 5, 6, 7, 8, 9, 11
- Crimes Act 1900 (NSW), Division 10 of Part 3
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
Cases:
- State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 (R A Hulme J)
- State of New South Wales v Richard John Darrego [2011] NSWSC 360 (McCallum J)
- Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; 178 A Crim R 133