Citation: State of New South Wales v Cusack [2014] NSWSC 941
Court: Supreme Court of New South Wales
Date: 15 July 2014
Judge(s): Beech-Jones J
Background
The State of New South Wales applied under the Crimes (High Risk Offenders) Act 2006 (NSW) to extend an interim supervision order against the respondent, a 51-year-old man with an extensive criminal history. His prior convictions included armed robbery and multiple serious sexual offences committed in 1994, and a further serious sexual assault committed in 2000 while he was on parole, involving the repeated rape of a 17-year-old girl over a significant period of time.
The respondent was released to parole in July 2012, but his parole was revoked in March 2014 after he recorded a positive breath alcohol reading during an unannounced home visit and behaved aggressively toward Community Corrections officers. His sentence expired on 20 June 2014, at which point an earlier interim supervision order, granted by Hall J on 4 June 2014, took effect.
That initial interim order was made for the maximum permissible 28 days under the Act, expiring in the week of the current hearing. Because the substantive application for an extended supervision order was not listed for final hearing until 19 August 2014, the State applied to extend the interim order to bridge the gap.
Legal Issues
- Whether the preconditions in s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW) were satisfied, justifying the extension of the interim supervision order.
- Specifically, whether the respondent's current supervision would expire before the final proceedings were determined (s 10A(a)), and whether the supporting documentation alleged matters that, if proved, would justify making a high risk sex offender extended supervision order (s 10A(b)).
- Whether the court must independently satisfy itself of those preconditions or whether the parties' consent is sufficient to ground such an order.
Decision
Beech-Jones J noted that the respondent did not oppose the extension, but declined to resolve whether a s 10A order could be made by consent alone or required independent judicial satisfaction. His Honour instead reviewed the supporting material personally.
On the first precondition (s 10A(a)), the court was satisfied that the respondent's existing supervision would expire before the final hearing on 19 August 2014, given that the initial 28-day order was about to lapse.
On the second precondition (s 10A(b)), the court confirmed, following the approach in State of New South Wales v Reed (Preliminary) [2011] NSWSC 625, that the task at the interim stage is not to evaluate competing claims in the supporting documentation in detail. It is sufficient that the matters alleged in that material, if proved, would justify making a high risk sex offender extended supervision order. The supporting documentation included risk assessment reports classifying the respondent in the high risk category for sexual and violent reoffending, as well as a risk management report supporting electronic monitoring as a condition. One psychological report offered a more modest assessment of reoffending risk, but the court found the collective material sufficient to satisfy s 10A(b).
Beech-Jones J agreed with Hall J's earlier approach and was satisfied that the material and the respondent's history warranted making the order with the proposed conditions, including electronic monitoring.
Orders Made
• Make a high risk sex offender extended supervision order against Mr Cusack
• Impose conditions on the extended supervision order including electronic monitoring
• Add a notation to modify the electronic monitoring condition to allow Mr Cusack to work at approved work sites
The judgment records that the court made orders in accordance with short minutes of order handed up at the hearing, including the imposition of conditions (among them electronic monitoring) referred to in order 2. The specific terms of those orders were not reproduced in the published judgment.
Key Takeaways
- Under s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW), a court granting or extending an interim supervision order is not required to conduct a detailed evaluation of the supporting documentation; it need only be satisfied that the matters alleged, if proved, would justify a high risk sex offender extended supervision order.
- Beech-Jones J left open the question of whether a s 10A order can be made by consent of the parties or requires the court to be independently satisfied of the statutory preconditions, declining to resolve that issue on the facts before him.
- Where competing expert reports reach different conclusions about reoffending risk, those differences need not be resolved at the interim stage; it is sufficient that at least part of the supporting documentation, if accepted, would justify the order sought.
- The 28-day maximum duration of an interim supervision order under s 10C(1) means that where a final hearing cannot be listed within that window, a further application to extend the order will be necessary.
- Electronic monitoring was imposed as a condition of the extended interim supervision order, consistent with the risk management report's recommendation, with a notation permitting the respondent to work at sites approved by his supervising officer.
Legislation and Cases Referenced
Legislation:
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 6, 9, 10A, 10C, 11
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
Cases:
- State of New South Wales v Reed (Preliminary) [2011] NSWSC 625 (McCallum J)