Citation: State of New South Wales v AA [2020] NSWSC 692
Court: Supreme Court of New South Wales
Date: 4 June 2020
Judge(s): Wilson J
Background
The defendant, aged 30 at the time of the proceedings, had spent virtually his entire life in institutions. His serious offending began as a child, with sexual and violent offences first recorded when he was 13. The index offences, committed when he was 16, involved aggravated carjacking, kidnapping, and two counts of aggravated sexual assault. A total sentence of 13 years imprisonment with a nine-year non-parole period was imposed when he was 18, and he had remained in continuous custody since 2007. He had no experience of adult life in the community.
The State applied under the Crimes (High Risk Offenders) Act 2006 (NSW) for either a continuing detention order (CDO) of 12 months or, in the alternative, an extended supervision order (ESO) of five years. The application was prompted by the defendant's imminent release at the expiry of his sentence on 5 March 2020. An interim detention order had already been made by Button J on 4 March 2020.
The defendant conceded that he met the statutory definition of a high risk offender, that procedural requirements had been satisfied, and that a supervision order was appropriate. The sole question before Wilson J was whether community supervision was sufficient to manage the risk he posed, or whether a detention order was required.
Legal Issues
- Whether the defendant posed an unacceptable risk to the community if not kept in detention, within the meaning of the Crimes (High Risk Offenders) Act 2006 (NSW)
- Whether an extended supervision order in the community was adequate to manage that risk, or whether a continuing detention order was required
Decision
Wilson J concluded that community supervision was not adequate and made the continuing detention order sought by the State. Her Honour's reasoning centred on the convergence of several serious risk factors that no supervisory regime could reliably contain.
The defendant had a lengthy and consistent history of failing to comply with supervision, dating from his earliest contact with the juvenile justice system. He had breached parole conditions imposed in his youth, had not completed key therapeutic programmes including the Custody Based Intensive Treatment (CUBIT) sex offender programme or the Violence Offender Therapeutic Programme (VOTP), and his institutional conduct had been marked by drug use, segregation, and regression in security classification. He had also, at one point, declined to seek parole on the basis that he did not wish to be subject to ongoing direction.
Her Honour expressed particular concern about the defendant's impulsive personality, ongoing drug use, and lack of insight into his offending. The proposed release address, the home of his mother who had reportedly sustained a traumatic brain injury, raised further concerns about the support environment. Wilson J observed that no supervisory regime could prevent a person with the defendant's profile from rapidly accessing drugs and reoffending in a serious way.
The detention order was also justified, in her Honour's view, on the basis that it would allow the defendant to complete the VOTP. Completion of that programme was identified as a necessary step toward managing his risk upon any future release, and would create an additional layer of community oversight through the VOTP Outreach programme when he was eventually released.
Orders Made
No orders were made in this decision.
(Note: The judgment records that at the conclusion of the hearing on 21 May 2020, Wilson J made the continuing detention order sought by the State. The formal orders are not reproduced in the text provided.)
Key Takeaways
- Where a defendant concedes that a supervision order is warranted under the Crimes (High Risk Offenders) Act 2006 (NSW), the residual question for the court is whether supervision in the community is sufficient, or whether the unacceptable risk can only be managed through detention.
- A sustained history of non-compliance with supervision conditions, spanning both juvenile and adult custodial periods, was treated as a significant factor weighing against the adequacy of an extended supervision order.
- Failure to complete targeted therapeutic programmes, particularly sex offender and violence offender programmes, informed the court's conclusion that risk had not been sufficiently ameliorated to permit safe community release.
- The Supreme Court identified that no supervisory regime, however closely structured, can eliminate the risk posed by a person with an impulsive personality, entrenched drug use, and a pattern of disregarding direction.
- Detention was considered to serve a dual purpose: containing current risk to the community and providing an opportunity for the defendant to complete therapeutic programmes that could reduce risk upon eventual release.
Legislation and Cases Referenced
Legislation:
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5C, 17(1)(a), 17(1)(b)
- Children (Criminal Proceedings) Act 1987 (NSW), s 33(1)(a)(i)
Cases:
- Decision restricted [2020] NSWSC 172 (Button J, interim detention order)