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Supreme Court 29 June 2011

STATE OF NSW v BASTIAN

[2011] NSWSC 641

Sexual offences
CRIMINAL LAW CRIMES (SERIOUS SEX OFFENDERS) ACT 2006 SERIOUS SEX OFFENCE MEANING OF "HIGH DEGREE OF PROBABILITY" EXTENDED SUPERVISION ORDER MADE.

Citation: State of NSW v Bastian [2011] NSWSC 641
Court: Supreme Court of New South Wales
Date: 29 June 2011
Judge(s): Hoeben J

Background

The State of New South Wales applied for an extended supervision order (ESO) under the Crimes (Serious Sex Offenders) Act 2006 in respect of a defendant who had been convicted and sentenced to imprisonment in 2003 for serious sex offences. The application was made by Amended Summons filed on 23 June 2011, seeking a three-year supervision order.

The defendant had been subject to an interim supervision order since 10 April 2011, made and successively renewed by three separate judges. At the final hearing on 23 June 2011, the defendant did not oppose the orders sought. He had complied with the interim conditions, including wearing an electronic monitoring device, attending a maintenance program, and returning negative results on alcohol and drug testing.

Two court-appointed psychiatrists, Dr Anthony Samuels and Dr Andrew Ellis, examined the defendant and provided reports. The State also relied on affidavit evidence from a senior compliance and monitoring officer and a forensic mental health director, alongside a substantial volume of records obtained under statutory orders issued to government agencies.

  • Whether the defendant met the statutory definition of a "sex offender" and whether the threshold eligibility criteria under the Crimes (Serious Sex Offenders) Act 2006 were satisfied.
  • Whether the court was satisfied to a "high degree of probability" that the defendant posed an "unacceptable risk" of committing a serious sex offence if not kept under supervision, as required by s 9(2) of the Act.
  • What weight to give the s 9(3) mandatory considerations, including psychiatric assessments, criminal history, compliance history, treatment participation, and community safety.
  • What conditions were appropriate for inclusion in any extended supervision order made under s 11 of the Act.

Decision

Hoeben J was satisfied that the defendant met the definition of a "sex offender" under s 4 of the Act, having been sentenced to imprisonment following conviction for serious sex offences within the meaning of s 5(1). The eligibility preconditions for an ESO application were therefore established.

Turning to the central question under s 9(2), the court applied the standard requiring satisfaction to a "high degree of probability" that the defendant posed an unacceptable risk of committing a serious sex offence if not supervised. The court noted s 9(2A), which was inserted by amendment in December 2010, and drew on Davies J's interpretation in State of NSW v Richardson (No 2) [2011] NSWSC 276: the provision makes clear that the court need not find it is more likely than not that the offender will reoffend before concluding that an unacceptable risk exists.

After considering the mandatory matters in s 9(3), including the psychiatric reports, the defendant's criminal history, his engagement with treatment and rehabilitation programs, his compliance with existing supervision conditions, and the safety of the community, the court was satisfied that the requisite statutory threshold was met. Hoeben J indicated at the conclusion of the hearing that an ESO was appropriate and these published reasons set out the basis for that conclusion.

Orders Made

  • Previous interim supervision orders made by Fullerton, Johnson and Hidden JJ were revoked.
  • An extended supervision order was made under s 9(1)(a) of the Act for a period of 3 years and 6 months.
  • The defendant was directed to comply with conditions under s 11 of the Act, including:
  • Accepting supervision from the Probation and Parole Service, the Community Compliance and Monitoring Group (CCMG), and the Child Protection Watch Team.
  • Wearing electronic monitoring equipment for at least the first six months, subject to review.
  • Providing 48 hours advance written notice of daily movements to the Departmental Supervising Officer.
  • Residing only at accommodation approved by the Departmental Supervising Officer and accepting unannounced home visits.
  • Observing a curfew between 9 pm and 6 am for the first 12 months (with limited exceptions).
  • Not leaving New South Wales without written permission from the Commissioner or delegate.
  • Only undertaking employment approved by the Departmental Supervising Officer.
  • Attending and participating in psychological and psychiatric assessment and treatment as arranged.
  • Waiving confidentiality in respect of information disclosed during treatment, and consenting to information sharing between treating practitioners and supervising officers.
  • Attending six-monthly management plan reviews as required.

Key Takeaways

  • Under s 9(2) of the Crimes (Serious Sex Offenders) Act 2006, a court must be satisfied to a "high degree of probability" that the offender poses an unacceptable risk of committing a serious sex offence if not supervised before an extended supervision order can be made.
  • Section 9(2A), inserted in December 2010, clarifies that a finding of "more likely than not" reoffending is not required; as confirmed in Richardson (No 2), a lower probability of reoffending can still constitute an "unacceptable risk" depending on the circumstances.
  • The s 9(3) mandatory considerations operate cumulatively: the court must have regard to psychiatric reports, criminal history, treatment participation, compliance conduct, and community safety, as well as any other relevant matter.
  • An offender's compliance with interim supervision conditions, and expressed willingness to continue complying, is a relevant but not determinative consideration in the overall assessment of unacceptable risk.
  • Extended supervision orders under the Act can carry a wide suite of conditions, including electronic monitoring, curfews, movement reporting obligations, employment restrictions, and compulsory medical and psychological treatment, all directed at managing community safety.

Legislation and Cases Referenced

Legislation
- Crimes (Serious Sex Offenders) Act 2006 (NSW), ss 3, 4, 5, 6, 7, 8, 9, 11, 25
- Crimes Act 1900 (NSW), Division 10, Part 3
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)

Cases
- State of NSW v Richardson (No 2) [2011] NSWSC 276
- Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 420
- Attorney-General for the State of New South Wales v Tillman [2007] NSWSC 605
- Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119
- 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 110