AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 18 December 2015

State of New South Wales v Anderson (No 4)

[2015] NSWSC 1970

Sexual offences
CRIMINAL LAW HIGH RISK SEX OFFENDER CONTINUING DETENTION ORDER INTERIM SUPERVISION ORDERS IN PLACE PSYCHIATRIC EVIDENCE

Citation: State of New South Wales v Anderson (No 4) [2015] NSWSC 1970
Court: Supreme Court of New South Wales
Date: 18 December 2015
Judge(s): Wilson J

Background

The State of New South Wales applied under the Crimes (High Risk Offenders) Act 2006 (NSW) for orders against a male defendant who had served a sentence for aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW). His sentence expired on 17 October 2015, having been served in full after the State Parole Authority declined to release him on parole. The State sought either a continuing detention order ("CDO") followed by an extended supervision order ("ESO"), or, alternatively, a standalone ESO.

Prior to the final hearing, the matter had come before three different judges on interlocutory applications. Hamill J declined to make an interim detention order but granted an interim supervision order ("ISO") commencing 17 October 2015. That ISO was renewed on two subsequent occasions by Adams J and Schmidt J respectively, keeping the defendant under supervision while the final application was prepared and heard.

At the final hearing, Wilson J received extensive documentary evidence about the defendant's history and heard oral evidence from three forensic psychiatrists, each of whom had recently examined the defendant for the purpose of assessing the risk he posed to the community.

  • Whether the defendant met the statutory threshold of being a "high risk sex offender" under s 5B of the Act, meaning the Supreme Court was satisfied to a high degree of probability that he posed an unacceptable risk of committing a serious sex offence if not kept under supervision.
  • If so, whether a continuing detention order was warranted, requiring the additional finding under s 5D(1) that adequate supervision would not be provided by an extended supervision order alone.
  • What conditions should attach to any extended supervision order following the expiry of any CDO.

Decision

Wilson J was satisfied to the requisite high degree of probability that the defendant posed an unacceptable risk of committing a serious sex offence if not kept under supervision. The court applied the formulation drawn from State of New South Wales v Thomas and subsequent cases: the statutory test is met where the evidence establishes a risk sufficiently high that making an order is necessary to protect the community.

The court further found that adequate supervision would not be provided by an extended supervision order alone, satisfying the additional requirement under s 5D(1) for the making of a CDO. Accordingly, the primary order sought by the State was granted: a 12-month CDO, to be followed by a 5-year ESO.

The three psychiatrists who gave evidence had each conducted recent examinations of the defendant. Their evidence, together with the documentary material tendered by the State regarding the defendant's history and conduct during his sentence, supported the court's conclusions on both the risk threshold and the inadequacy of supervision alone as a protective measure.

Orders Made

  • A high risk sex offender continuing detention order for a period of 12 months from the date of the order, pursuant to s 17(1)(b) of the Act.
  • A warrant to issue forthwith for the committal of the defendant to a correctional centre for that 12-month period, pursuant to s 20(1) of the Act.
  • An extended supervision order for a period of 5 years from the expiry of the CDO, pursuant to ss 5C and 9(1)(a) of the Act, with the defendant required to comply with a detailed schedule of conditions.
  • Any reports prepared for the purposes of the CDO to be provided to relevant Corrective Services NSW officers and treating health practitioners.

The extended supervision order conditions included: regular reporting to a Departmental Supervising Officer; electronic monitoring; strict accommodation requirements including a curfew between 9pm and 6am; restrictions on travel outside New South Wales; prohibitions on unsupervised contact with children; requirements to undergo psychological and psychiatric treatment; obligations to take prescribed medications and notify the supervising officer of any cessation; prohibitions on accessing refused classification and other specified material; and requirements around disclosure of personal details and identification.

Key Takeaways

  • The Supreme Court confirmed that "unacceptable risk" under s 5B(2) of the Crimes (High Risk Offenders) Act 2006 does not require proof that reoffending is more likely than not; it requires satisfaction to a high degree of probability that the risk is sufficiently high to necessitate an order for community protection.
  • A continuing detention order requires two distinct findings: first, that the offender is a high risk sex offender; and second, under s 5D(1), that an extended supervision order alone would not provide adequate supervision.
  • Where a defendant has served a full custodial sentence and the Parole Authority has declined to release him, the Act provides a distinct mechanism enabling the State to seek ongoing detention or supervision through the Supreme Court, extending beyond the expiry of the original sentence.
  • Psychiatric evidence from multiple forensic experts examined as witnesses at a final hearing formed the evidentiary foundation for both the risk assessment and the adequacy-of-supervision question.
  • In granting the CDO and ESO, the court imposed a comprehensive schedule of conditions covering monitoring, accommodation, travel, employment, contact with children, access to explicit material, medical treatment compliance, and disclosure obligations, reflecting the detailed supervisory framework the Act contemplates.

Legislation and Cases Referenced

Legislation:
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW)
- Crimes Act 1900 (NSW), ss 61J, Division 10 of Part 3

Cases:
- Attorney General for New South Wales v McGuire [2015] NSWSC 152
- Director of Public Prosecutions WA v Williams [2007] WASCA 206; (2007) 176 A Crim R 110
- State of New South Wales v Anderson [2015] NSWSC 1515
- State of New South Wales v Anderson (No 2) [2015] NSWSC 1679
- State of New South Wales v Anderson (No 3) [2015] NSWSC 1871
- State of New South Wales v Conway [2011] NSWSC 588
- New South Wales v Graeme Allan Reed (Preliminary) [2011] NSWSC 625
- State of New South Wales v KAS [2012] NSWSC 1139
- State of New South Wales v Richardson (No 2) [2011] NSWSC 276
- State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
- State of New South Wales v Thomas (Final) [2011] NSWSC 307
- R v Anderson (Court of Criminal Appeal (NSW), 19 October 1994, unrep)
- R v Anderson [2002] NSWCCA 304