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Supreme Court 15 October 2015

State of New South Wales v Anderson

[2015] NSWSC 1515

Sexual offences
CRIMINAL LAW HIGH RISK SEX OFFENDER APPLICATION FOR INTERIM DETENTION ORDER STATUTORY TEST DISCRETIONARY FACTORS OBJECTIVES OF LEGISLATION

Citation: State of New South Wales v Anderson [2015] NSWSC 1515
Court: Supreme Court of New South Wales
Date: 15 October 2015
Judge(s): Hamill J

Background

The State of New South Wales applied under the Crimes (High Risk Offenders) Act 2006 (NSW) for orders relating to a defendant who was due to be released from a 13-year prison sentence on 17 October 2015. The summons was filed on 6 October 2015, just 11 days before the defendant's scheduled release. The State sought, primarily, an interim detention order and, in the alternative, an interim supervision order.

The defendant conceded that he was a "detained sex offender" within the meaning of the Act, that the application was brought within the required time limits, and that the material relied upon by the State would, if proved at a final hearing, justify the making of a continuing detention order or extended supervision order. The defendant did not resist an interim supervision order but opposed interim detention.

The central dispute before Hamill J was therefore a narrow one: whether the court's discretion should be exercised to order continued detention or intensive supervision pending the final hearing, which was listed for December 2015.

  • Whether an interim detention order or an interim supervision order was the appropriate form of relief pending the final hearing
  • Whether the late filing of the application and the volume of material provided to the defendant's legal representatives at short notice constituted a denial of procedural fairness
  • Whether the evidentiary material tendered by the State should nonetheless be admitted given the urgency of the application and the objectives of the Act

Decision

Hamill J admitted the State's evidence despite the procedural fairness concerns, concluding that to exclude it would have been inconsistent with the primary objective of the Act, which is to protect the community. Excluding the evidence would have resulted in the defendant's imminent release without any supervision in place.

On the procedural fairness issue, Hamill J was strongly critical of the State's approach. The application was brought in the final week of the defendant's sentence, supported by five volumes of material including a detailed psychiatric report dated 3 August 2015. That report made reference to specific tab numbers in the brief, indicating the State had been assembling its case since at least July 2015. The court noted that delivering thousands of pages of documents to a defendant's lawyers days before a hearing does not give an offender a meaningful opportunity to prepare. Hamill J called for legislative reform, suggesting Parliament consider extending the window for bringing such applications from the final six months of a sentence to twelve months, and requiring applications to be filed at least one month before release.

On the substantive question of detention versus supervision, the court exercised its discretion in favour of an interim supervision order. Hamill J weighed the defendant's willingness to participate in rehabilitation programs, his increased insight into his behaviour, and the onerous, quasi-custodial conditions that would accompany supervision. Against those factors, the court acknowledged the defendant's criminal history and the serious nature of the index offence. On balance, intensive supervision was found to satisfy the Act's primary objective of community protection while also advancing its secondary objective of encouraging rehabilitation and providing the defendant with an incentive to comply.

Orders Made

  • Two psychiatrists (Dr Jeremy O'Dea and Dr Andrew Ellis) appointed under s 15(4) of the Act to conduct separate examinations of the defendant and furnish reports to the Supreme Court by 27 November 2015
  • The defendant directed to attend those examinations
  • Interim supervision order made under ss 10A and 10C of the Act, commencing 17 October 2015 for a period of 28 days, with conditions as set out in the schedule to the judgment
  • Proceedings listed before the Duty Judge on 11 November 2015 for mention and to hear any application for a further interim supervision or detention order
  • Final hearing listed for 14 and 15 December 2015
  • Access to the Court file restricted: no non-party access without leave of a Judge, with parties to be notified of any such application

Key Takeaways

  • Where an interim application under the Crimes (High Risk Offenders) Act 2006 is brought in the final days of an offender's sentence and supported by voluminous material served at short notice, a significant procedural fairness concern arises. Hamill J found this situation to be both unfair to the defendant and inappropriate.
  • Despite those procedural fairness concerns, the court admitted the State's evidence because excluding it would have defeated the Act's primary community-protection objective and resulted in the defendant's uncontrolled release.
  • An interim supervision order can satisfy the Act's primary objective of community protection where the conditions imposed are sufficiently onerous and quasi-custodial, without the additional deprivation of liberty that detention involves.
  • The Act's secondary objective, encouraging rehabilitation, is a relevant factor in the exercise of the court's discretion at the interim stage. Providing an offender with an incentive to comply pending the final hearing weighed in favour of supervision over detention.
  • Hamill J called on Parliament to consider extending the period in s 13B(3) from six months to twelve months, and to require applications to be filed at least one month before an offender's release, to avoid the pressure and unfairness that characterised this and other similar cases.

Legislation and Cases Referenced

Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 7, 10A, 10C, 11, 13B, 15, 18A, 20

Cases
- Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119
- R v Anderson (District Court (NSW), Bellar J, 14 December 2001, unreported)
- R v Anderson [2002] NSWCCA 304
- State of New South Wales v Donovan [2015] NSWCA 280
- State of New South Wales v Donovan [2015] NSWSC 1254
- State of New South Wales v Phillips [2014] NSWSC 205
- State of New South Wales v Thomas (Interim) [2009] NSWSC 1119
- Williams v The Queen [1986] HCA 88; 161 CLR 278