Citation: State of New South Wales v Vincent [2017] NSWSC 1855
Court: Supreme Court of New South Wales
Date: 27 April 2017
Judge(s): McCallum J
Background
The State brought proceedings under the Crimes (High Risk Offenders) Act 2006 (NSW) seeking a continuing detention order against the defendant, on the basis that he is a high risk sex offender. At a preliminary hearing on 28 March 2017, Fagan J declined to make the interim detention order the State sought and instead made an interim supervision order, finding that adequate supervision would be provided without detention.
That interim supervision order was due to expire on 30 April 2017, before the final hearing listed for 23 June 2017. The State therefore applied to extend the interim supervision order to bridge the gap.
The application came before McCallum J, a different judge from the one who made the original order. This raised a question about how the court should approach an extension application in those circumstances.
Legal Issues
- Whether the court should extend an interim supervision order originally made by another member of the same court, where the extending judge may have reached a different evaluative judgment on the same material
- Whether extending the order satisfied the requirements of section 10A of the Crimes (High Risk Offenders) Act 2006 (NSW)
Decision
Issue 1: The appropriate approach when asked to extend another judge's interim order
McCallum J acknowledged some personal reservations about the original decision. Her Honour indicated that, on the same material, she may have been satisfied that adequate supervision would not be provided by an extended supervision order, which would have pointed toward an interim detention order rather than supervision (at [5]).
Despite those reservations, her Honour identified two key reasons to accede to Fagan J's evaluative judgment. First, that judgment was reached after a contested hearing, and the State was not seeking to disturb it (at [6]). Second, there was no fresh evidence suggesting non-compliance with the supervision regime; if anything, compliance to date fortified the case for extending supervision rather than escalating to detention (at [7]).
Her Honour held that the ordinary approach for a court asked to extend an interim supervision order made by another member of the same court is to accede to the judgment formed by that other member. Proceeding otherwise would raise an obvious issue of procedural fairness (at [8]).
Issue 2: Satisfaction of the statutory requirements under section 10A
McCallum J was satisfied that the defendant's current supervision would expire before the proceedings were determined, and that the matters alleged in the supporting documentation would, if proved, justify at least the making of a high risk sex offender extended supervision order. Both statutory preconditions under section 10A were therefore met (at [9]).
Orders Made
- Interim supervision order extended
Key Takeaways
- Where a judge is asked to extend an interim supervision order made by another member of the same court after a contested hearing, the ordinary approach is to accede to the evaluative judgment formed by that other judge, rather than substitute a fresh assessment (at [8]).
- Proceeding otherwise, where no party seeks to disturb the earlier ruling, would raise a procedural fairness concern for the person subject to the order (at [8]).
- Evidence of compliance with an existing interim supervision order, in the absence of any fresh material suggesting otherwise, fortifies the case for extending that order rather than escalating to a more restrictive regime (at [7]).
- Under section 10A of the Crimes (High Risk Offenders) Act 2006 (NSW), the court must be satisfied both that current supervision will expire before proceedings are determined and that the alleged conduct, if proved, would justify at least an extended supervision order (at [9]).
- The determination of whether to make an interim detention order or an interim supervision order remains an evaluative judgment by reference to all circumstances, as confirmed by the Court of Appeal in State of New South Wales v Donovan [2015] NSWCA 280 (at [5]).
Legislation and Cases Referenced
Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW), s 10A
Cases
- State of New South Wales v Donovan [2015] NSWCA 280