Citation: The State of New South Wales v Brooker [2014] NSWSC 995
Court: Supreme Court of New South Wales
Date: 24 July 2014
Judge(s): Hamill J (as Duty Judge)
Background
The State of New South Wales applied under the Crimes (High Risk Offenders) Act 2006 (NSW) for a further interim supervision order against the defendant, a 70-year-old man with an extensive criminal history spanning multiple Australian states. His offending history included numerous sexual offences, some committed against children, with the first occurring when he was 18 years old. He had also absconded from parole in New South Wales and, while in breach of that parole, was convicted of sexual offending in Western Australia.
Justice Harrison had already made an interim supervision order on 24 June 2014. The present application, heard by Hamill J as Duty Judge, sought a continuation of that supervision while the State's application for a final extended supervision order remained unresolved.
The defendant's legal representatives consented to the continuation of the interim orders, and the matter was dealt with on that basis.
Legal Issues
- Whether the conditions in section 10A of the Crimes (High Risk Offenders) Act 2006 were satisfied so as to permit the making of a further interim supervision order.
- Specifically, whether the defendant's current custody or supervision would expire before the final proceedings were determined, and whether the supporting material would, if proved, justify a final high risk sex offender extended supervision order under section 9(3) of the Act.
Decision
Hamill J was satisfied that the defendant's existing supervision would expire before the final proceedings concluded, meeting the first requirement under section 10A. That finding was straightforward given the existing interim order was already in place.
On the second requirement, Hamill J turned to the criteria in section 9(3) of the Act, which directs the court to consider community safety and to have regard to risk assessments conducted by qualified medical practitioners or psychologists. The court relied on an affidavit and accompanying report from a psychologist, Samuel Ardasinski, which assessed the defendant as presenting a high risk of committing further sexual offences. That assessment was based on the defendant's criminal and sexual history, his responses to supervision, and the results of multiple recognised risk assessment tools.
Hamill J noted that, while no risk assessment tool is perfect, the consistent conclusion across all instruments used was that the defendant posed a high risk of further sexual reoffending. The court found that if that history and the psychologist's opinion were proved to the satisfaction of the final hearing judge, a high risk sex offender extended supervision order would clearly be justified. The statutory threshold under section 10A was therefore met, and Hamill J made the interim supervision order sought.
Orders Made
- The defendant was made subject to a further interim supervision order commencing 30 July 2014 for a period of 28 days, pursuant to section 10A of the Act.
- Pursuant to section 11 of the Act, the defendant was directed to comply with the conditions set out in the schedule to the Summons during the period of the interim supervision order.
- The matter was listed on 20 August 2014 for the plaintiff to apply for a further interim supervision order.
- Liberty to apply to relist the matter on one day's notice was granted.
Key Takeaways
- Under section 10A of the Crimes (High Risk Offenders) Act 2006, an interim supervision order may be made where two conditions are met: the defendant's current custody or supervision will expire before the final proceedings are determined, and the supporting material, if proved, would justify a final extended supervision order.
- A psychologist's risk assessment is a central consideration when the court evaluates whether a final high risk sex offender extended supervision order would be justified under section 9(3) of the Act.
- Consistent findings of high risk across multiple recognised assessment instruments carried significant weight, even where Hamill J acknowledged that no individual tool is infallible.
- The defendant's consent to the interim orders did not remove the court's obligation to be independently satisfied that the statutory criteria were met before making the orders.
- Interim supervision orders under this regime serve a protective function, maintaining oversight of the defendant while the State pursues a final extended supervision order through the ordinary hearing process.
Legislation and Cases Referenced
Legislation:
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 9, 9(3), 10A, 11
Cases cited: No cases were cited in the judgment.