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Supreme Court 18 September 2020

State of New South Wales v Vincent (Preliminary)

[2020] NSWSC 1269

Sexual offencesPublic order & justice offences

Citation: State of New South Wales v Vincent (Preliminary) [2020] NSWSC 1269
Court: Supreme Court of New South Wales
Date: 18 September 2020
Judge(s): Cavanagh J

Background

The State of New South Wales applied under the Crimes (High Risk Offenders) Act 2006 (NSW) for a continuing detention order (CDO) and an extended supervision order (ESO) against the defendant, a 34-year-old man with a criminal history stretching back to 2005. His history included convictions for possession of child pornography and repeated use of carriage services to menace, harass or offend. A previous ESO had been made against him in 2017.

The defendant had been eligible for release in April 2020 but remained in custody. In October 2019 he was charged with further offences, and by the time of this hearing he had pleaded guilty to four charges of using a carriage service to menace, harass or offend. He was due to be sentenced in the District Court on the same day as this preliminary hearing, with a further term of imprisonment considered likely.

This judgment concerned only the preliminary hearing stage: whether the Court should appoint two qualified psychiatrists or psychologists to examine the defendant and report to the Court, as required under s 15(4) of the Act if the relevant threshold was met.

  • Whether the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or ESO, thereby triggering the mandatory obligation under s 15(4) of the Act to appoint examining experts.
  • Whether the application lacked practical utility because the defendant was in custody and would likely receive a further sentence of imprisonment, meaning he would not be released for a considerable period.
  • Whether the defendant's likely continued custody meant he did not pose an "unacceptable risk" of committing a serious offence if not detained, as required by s 5C(d) of the Act.
  • Whether the application was not made "in accordance with s 13B" of the Act because of the pending further sentence.

Decision

Cavanagh J confirmed that at the preliminary hearing stage, the Court is not required to predict the ultimate outcome or weigh conflicting material. The sole question under s 15(4) is whether the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or ESO. If that threshold is met, the Court has no discretion: it must make the orders appointing the experts.

The defendant did not contest that he posed an unacceptable risk of committing a further serious offence. Cavanagh J was independently satisfied of this on the documentation, noting that the risk identified by the forensic expert in 2017 had not changed, and that the defendant's pattern of using carriage services for sexual gratification had continued as predicted. His Honour observed that the defendant required further extensive treatment.

On the practical utility argument, the Court acknowledged some sympathy for the defendant's position. However, it accepted the State's submission that the purpose of making the preliminary orders was to keep the application on foot, and that the Court should not act on an assumption about what sentence would be imposed. The orders for expert examination do not carry a mandatory time limit, and the parties could reassess the appropriate course once the sentence was known.

The argument that the application was not made in accordance with s 13B of the Act was considered but not accepted as a reason to decline the orders. Cavanagh J noted that a CDO, even if eventually made, would not operate during any period of imprisonment by reason of s 18C(1A) of the Act, consistent with the approach taken in earlier cases including Turner v State of New South Wales and State of New South Wales v Elmir.

Orders Made

  • Two qualified psychiatrists, psychologists, or any combination of such persons, appointed under s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) to conduct separate examinations of the defendant and furnish reports to the Supreme Court, by a date to be fixed by the Court.
  • The defendant directed to attend those examinations.
  • Access to the Court's file for any document not to be granted to a non-party without leave of a Judge of the Court, with prior notice to the parties to allow an opportunity to be heard.

Key Takeaways

  • Under s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW), the obligation to appoint examining experts at the preliminary hearing stage is mandatory once the threshold is satisfied: if the matters alleged would, if proved, justify a CDO or ESO, the Supreme Court must make the orders and has no residual discretion to decline.
  • A defendant's continued custody at the time of a preliminary hearing does not, of itself, mean the unacceptable risk threshold under s 5C(d) is unmet. The relevant question is the risk posed if not kept in detention, not whether the defendant happens to be in custody at the time of the application.
  • Practical utility arguments do not override the mandatory statutory scheme. The Court found that making preliminary orders to keep the application on foot was a legitimate purpose, even where the defendant faced a likely further period of imprisonment.
  • Where a CDO is ultimately made, s 18C(1A) of the Act prevents it from operating during any concurrent period of imprisonment, so the making of preliminary orders in advance of a further sentence does not prejudice the defendant in that respect.
  • The decision reaffirms that at the preliminary stage, the Court does not resolve conflicts in the supporting material or predict the ultimate outcome; it asks only whether the alleged matters, if proved, could justify the final order sought.

Legislation and Cases Referenced

Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5, 5C, 13B, 15, 17, 18, 18C, 18D
- Crimes Act 1900 (NSW), ss 61J, 66C
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)

Cases
- Turner v State of New South Wales (2019) 99 NSWLR 767; [2019] NSWCA 164
- Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
- State of New South Wales v Elmir [2019] NSWSC 263
- State of New South Wales v Holschier (No 2) [2018] NSWSC 1921
- State of New South Wales v Monteiro (aka Lowe) (No 3) (Preliminary) [2020] NSWSC 350
- State of New South Wales v Simcock (Final) [2016] NSWSC 1805
- State of New South Wales v Sturgeon [2019] NSWSC 559
- State of New South Wales v Vincent (Preliminary) (No 2) [2020] NSWSC 590
- State of New South Wales v Wilmott (Preliminary) [2019] NSWSC 776
- State of NSW v Vincent [2017] NSWSC 858