Citation: State of NSW v Robert Ellmore [2011] NSWSC 837
Court: Supreme Court of New South Wales
Date: 21 July 2011
Judge: Latham J
Background
The State of New South Wales applied for an extended supervision order (ESO) under Part 2 of the Crimes (Serious Sex Offenders) Act 2006 in respect of a defendant whose most recent sentence of seven years imprisonment expired on 23 April 2011. The defendant had an extensive criminal history dating back to 1958, comprising predominantly sexual offences against female children aged five to twelve years.
The proceedings were commenced by summons in March 2011. Interim supervision orders were made and progressively extended by four different judges between April and July 2011, with the defendant raising no objection to those interim orders.
The defendant ultimately consented to the making of final orders, subject to specific objections regarding three proposed conditions authorising search and seizure. The State sought an ESO for a period of three years.
Legal Issues
- 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 section 9(2) of the Act
- Whether conditions authorising search and seizure of the defendant's person and premises (conditions 34, 35 and 36) were appropriate and justified in the circumstances
- What length of ESO was appropriate given differing expert opinions on the matter
Decision
The court was satisfied to the requisite standard, a high degree of probability, that the defendant posed an unacceptable risk of committing a serious sex offence without supervision. Both court-appointed psychiatrists, Dr Samuels and Dr Ellis, concluded the defendant presented at high risk of further offending. Dr Samuels placed the defendant in the moderate to high risk category on the STATIC-99R actuarial tool, but considered that score a significant underestimate of actual risk given the defendant's age-related deductions and his robust physical presentation. The defendant's lengthy history of offending, persistent denial, limited treatment gains, and continued contact with other sex offenders all weighed heavily in the assessment.
The defendant's principal objection concerned conditions 34, 35 and 36, which authorised search and seizure powers. He argued these conditions were unnecessarily oppressive. The court rejected that objection, noting that the overall ESO already imposed a close level of supervision, meaning the additional infringement of rights from search and seizure conditions was minimal. Further, Dr Ellis's report identified that the defendant had expressed disappointment at being prevented from contacting an acquaintance in New Zealand who had also been convicted of sex offences, making the need to detect correspondence with other offenders a legitimate supervisory interest.
On the question of duration, the two experts differed: Dr Ellis recommended five years, while Dr Samuels considered three years sufficient. The court adopted the State's submission and made the order for three years. The court reasoned that the search and seizure conditions granted significant powers to departmental officers, and those powers should not remain available for longer than was necessary to detect any breaches or potential breaches of the order.
Orders Made
• An extended supervision order is made for a period of three years
• Conditions 34, 35 and 36 of the supervision order (relating to search and seizure powers) are upheld
Note: The judgment refers to a schedule of conditions attached to the amended summons, but the full text of those conditions was not reproduced in the provided judgment extract.
Key Takeaways
- Under section 9(2) of the Crimes (Serious Sex Offenders) Act 2006, a court must be satisfied to a high degree of probability that an offender poses an unacceptable risk of committing a serious sex offence before making an extended supervision order, even where the offender consents to the orders.
- The Supreme Court confirmed that consent by the defendant does not relieve the court of its statutory obligation to undertake its own satisfaction of the unacceptable risk test.
- Where court-appointed psychiatric experts disagree on the appropriate length of an ESO, the court will assess the competing views alongside the nature and extent of the conditions being imposed, and is not bound to accept either expert's recommendation.
- Search and seizure conditions may be imposed under section 11 of the Act where the circumstances of the individual case justify them, including where evidence suggests the offender may correspond with other convicted sex offenders in breach of supervision requirements.
- An offender's age does not automatically reduce assessed risk, particularly where expert evidence establishes that the nature of the offending behaviour (such as non-penetrative contact offences) is not necessarily diminished by age-related physical changes.
Legislation and Cases Referenced
Legislation:
- Crimes (Serious Sex Offenders) Act 2006 (NSW), particularly ss 7(4), 9(2), 9(3), 11
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
Cases: No cases were cited in the judgment text.