Citation: State of New South Wales v Brown [2021] NSWSC 148
Court: Supreme Court of New South Wales
Date: 26 February 2021
Judge(s): Cavanagh J
Background
The State of New South Wales applied under the Crimes (High Risk Offenders) Act 2006 (NSW) for an extended supervision order (ESO) against a 36-year-old man with a lengthy history of sexual and violent offending. The defendant had been released on parole in October 2020 and his custodial sentence expired in January 2021. His most serious conviction, the index offence, involved a late-night attack in which he knocked a woman to the ground with the intention of sexually assaulting her, punching her when she screamed for help.
The defendant did not dispute that an ESO should be made, accepting that he posed an unacceptable risk of committing a further serious offence without supervision. The contested issues were the specific conditions to be attached to the order and its duration.
Two forensic experts, Dr Richard Furst and Dr Christopher Lennings, examined the defendant and provided reports. Both assessed him as posing a high risk of further sexual offending, linked principally to his diagnosed Frotteuristic Disorder and mild intellectual disability.
Legal Issues
- Whether the court was independently satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing a serious offence if not kept under supervision, as required by s 5B(d) of the Act
- Whether a nightly curfew condition was appropriate
- Whether conditions requiring the defendant to report all personal friendships to his designated supervising officer (DSO) were warranted
- Whether proposed restrictions on social media, dating sites, and pornography access were proportionate
- Whether the ESO should run for three or five years
Decision
Unacceptable risk threshold
Although the defendant conceded the point, Cavanagh J independently assessed whether the statutory prerequisites under s 5B were met. The court was satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision (at [20]). That satisfaction was grounded in the expert evidence, the defendant's escalating pattern of offending from sexual touching to serious sexual violence (at [46]), his persistent non-compliance with supervision obligations across multiple jurisdictions (at [47]), and his diagnosed Frotteuristic Disorder combined with mild intellectual disability (at [41]).
Curfew condition
The court declined to impose a nightly curfew between 10pm and 6am. While the index offence occurred late at night, Cavanagh J found no pattern of nocturnal offending and nothing in the defendant's diagnoses that made him more likely to reoffend at night than during the day (at [88]). Dr Furst's view that curfews add limited value in cases of this kind, and are more appropriate for juveniles on bail, was preferred over Dr Lennings's more cautious position (at [83]-[88]).
Friendship and relationship reporting conditions
The court accepted a condition requiring the defendant to inform his DSO when he commenced a romantic relationship with a woman, allowing the DSO to disclose his criminal history to that person if reasonably necessary (at [92]). However, proposed conditions extending that obligation to all personal friendships were removed (at [95]). Cavanagh J found that a requirement for the defendant to self-assess when any acquaintance had become a reportable "personal relationship" was so broad and uncertain that it was likely to set him up to fail, particularly given his existing obligations under electronic monitoring and movement scheduling (at [93]-[94]).
Social media and pornography access
A broadly drafted condition restricting internet and social media use was narrowed. The court substituted a more targeted condition permitting access to platforms as directed by the DSO, rejecting a blanket prohibition while preserving meaningful oversight (at [99]-[100]). On pornography, the court rejected both a blanket prohibition and a condition requiring DSO approval for every access attempt as unworkable and too onerous. The preferred approach permitted the defendant to seek pre-approval from his DSO to access sites not legally restricted, reflecting Dr Furst's view that a total prohibition was impractical and that some regulated sexual outlet was appropriate (at [104]-[106]).
Term of the order
The court imposed a three-year term rather than the five years sought by the State (at [109]). Although both experts considered that significant risk reduction within three years was unlikely, the defendant had shown improved motivation, had secured NDIS-supported accommodation, and was engaging with community services. Cavanagh J noted that the conditions, including electronic monitoring, were already strict, and that the State would be able to assess compliance and progress at the end of three years (at [108]-[109]).
Orders Made
- The defendant is to be under supervision in the community for a period of three years commencing 26 February 2021, pursuant to ss 5B and 9(1) of the Crimes (High Risk Offenders) Act 2006 (NSW).
- During the period of supervision, the defendant is to comply with the conditions set out in the Annexure to the judgment, pursuant to s 11 of the Act.
Key Takeaways
- Even where a defendant does not contest an ESO application, the Supreme Court must independently satisfy itself to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision (at [8]-[9], [20]).
- A proposed condition is not justified simply because it reflects a risk factor identified in expert evidence. Cavanagh J emphasised that each condition must be calibrated to the actual risk it addresses and must not be so onerous as to produce contrary or counterproductive effects (at [87]-[88], [91], [94]).
- Where no evidence establishes that an offender is more likely to reoffend at a particular time of day, a curfew directed at that period will not satisfy the court as a necessary condition (at [88]).
- Under the Crimes (High Risk Offenders) Act 2006 (NSW), the court retains a discretion whether to make an ESO even after the s 5B threshold is satisfied, and community safety remains the paramount consideration in exercising that discretion (at [12]-[13]).
- A three-year ESO term may be appropriate where conditions are already strict, the offender has shown some improvement in motivation, and the State retains the ability to bring a further application at the end of that period (at [107]-[109]).
Legislation and Cases Referenced
Legislation
- Child Protection (Offenders Registration) Act 2000 (NSW) , s 17
- Crimes Act 1900 (NSW) , s 61K
- Crimes (High Risk Offenders) Act 2006 (NSW) , ss 3, 5B, 5I, 7, 9, 11
Cases
- Cornwall v Attorney General for New South Wales [2007] NSWCA 374
- Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
- State of New South Wales v Bugmy [2017] NSWSC 855