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Supreme Court 28 August 2017

State of New South Wales v JC (No 2)

[2017] NSWSC 1139

Sexual offences
CRIMES (HIGH RISK OFFENDERS) ACT 2006 HIGH RISK SEX OFFENDER RELEASE EMERGENCY DETENTION ORDER SOUGHT HELD HELD

Citation: State of New South Wales v JC (No 2) [2017] NSWSC 1139
Court: Supreme Court of New South Wales
Date: 28 August 2017
Judge: Adamson J

Background

The defendant, referred to as JC, was a high-risk sex offender subject to an extended supervision order (ESO) made by Davies J on 8 September 2011. He had spent approximately four years in custody following guilty pleas to 18 offences, including sexual offences against children. His custodial sentence was due to expire at midnight on 28 August 2017.

Days earlier, on 23 August 2017, the State had applied for an interim detention order (IDO) ahead of the defendant's release. Adamson J refused that application, partly in reliance on an assurance from the defendant's Departmental Supervising Officer that suitable accommodation would be found before his release.

By the morning of 28 August 2017, it had become apparent that no suitable accommodation had been secured. The State brought a fresh application under Division 3A of Part 3 of the Crimes (High Risk Offenders) Act 2006 (NSW), this time seeking an emergency detention order (EDO).

  • Whether the absence of suitable accommodation, following earlier assurances it would be found, constituted "altered circumstances" within the meaning of s 18CB(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), so as to ground jurisdiction to make an EDO.
  • Whether the defendant remained "subject to an extended supervision order" for the purposes of s 18CA(1), given he was still serving a custodial sentence at the time of the application.
  • Whether, if those jurisdictional requirements were satisfied, the statutory threshold for an EDO was met: specifically, that without adequate supervision the offender posed an imminent risk of committing a serious offence.

Decision

On "altered circumstances": The defendant's counsel argued that the evidence before the Court was substantially the same as on the earlier IDO application, and therefore did not amount to "altered circumstances." Adamson J acknowledged some force in that submission but held that the expression should be given a relatively broad construction. The passage of time, combined with the further exhaustion of avenues to find suitable accommodation, was sufficient to satisfy the requirement. The prospect of the defendant being homeless upon release that night was also a significant consideration.

On the jurisdiction question: The defendant's counsel submitted the Court lacked jurisdiction because the defendant was not presently "subject to an ESO" while serving a custodial sentence. The State argued that the Act distinguishes between an ESO itself and the obligations arising under it. Adamson J accepted that distinction, noting that the relevant ESO remained on foot but had its obligations suspended during the custody period under s 10(2). The Court was therefore satisfied that the defendant was properly described as a person subject to an ESO for the purposes of s 18CA(1).

On the threshold for making the order: The Court found that adequate supervision under the ESO was only practicable if the defendant had suitable accommodation. No such accommodation had been identified. Without it, the defendant, who had a demonstrated history of impulsive sexual offending against children and whose disinhibition was linked to a blood condition, would pose an imminent risk of committing a serious offence. The Court also took into account the defendant's own interests, noting he had been in custody or supervised environments for approximately ten years and that a homeless release would be detrimental to him as well as dangerous for the public.

On duration: The Act required the EDO to be no longer than reasonably necessary. Adamson J declined to make the order for the maximum 120 hours, instead ordering a period of 96 hours and listing the matter for further hearing on 1 September 2017.

Orders Made

  • The defendant was made subject to an emergency detention order under s 18CB of the Crimes (High Risk Offenders) Act 2006 (NSW), commencing at 3:05 pm on 28 August 2017 and expiring at 3:05 pm on 1 September 2017 (a period of 96 hours).
  • A warrant was issued under s 20(1) of the same Act for the defendant's committal to a correctional centre for the duration of the emergency detention order.
  • An order was made under s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) that the defendant be available via audio-visual link at 9:00 am on 1 September 2017.
  • The matter was stood over to 9:00 am on 1 September 2017 for any further application or directions.

Key Takeaways

  • "Altered circumstances" under s 18CB(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) is to be given a relatively broad construction. The passage of time and the further exhaustion of accommodation options were held sufficient, even where the evidential position was broadly similar to an earlier application.
  • A person may remain "subject to an extended supervision order" within the meaning of the Act while serving a custodial sentence, because the Act distinguishes between the ESO as an order and the obligations it imposes, the latter being suspended during custody under s 10(2).
  • Adequate supervision under an ESO is contingent on the existence of suitable accommodation. Where no such accommodation is available, an offender's release into the community may itself give rise to an imminent risk of serious offending.
  • The protection of the public is the principal purpose of the Crimes (High Risk Offenders) Act 2006 (NSW), but the Court also gave weight to the defendant's own interests when assessing whether to make an EDO.
  • An EDO must be made for no longer than is reasonably necessary: the Supreme Court declined to impose the maximum 120-hour period, instead ordering 96 hours and listing the matter promptly for further consideration.

Legislation and Cases Referenced

Legislation:
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 10, 10C, 18CA, 18CB, 18CC, 18CD, 20, Part 3
- Crimes (Administration of Sentences) Act 1999 (NSW), s 77
- Crimes Act 1900 (NSW)

Cases:
- State of New South Wales v JC [2017] NSWSC 1126 (the earlier IDO decision by Adamson J, refusal of which provided the immediate context for this application)