Citation: State of New South Wales v Partington (Final) [2022] NSWSC 1492
Court: Supreme Court of New South Wales
Date: 3 November 2022
Judge(s): Adamson J
Background
The State of New South Wales applied for an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) in respect of a male defendant with a long history of violent offending. Proceedings were first commenced in April 2019 when the defendant was nearing the end of a prison sentence for causing grievous bodily harm with intent. An interim detention order was made at that time, and expert assessments were commissioned.
The defendant's background included severe childhood trauma: repeated sexual abuse, physical violence at home and at school, the early death of his mother, and a prolonged period of wrongful imprisonment following an acquittal for manslaughter. His offending history spans from 1986 to 2022, with violent crimes committed against intimate partners and strangers, often in moments of high emotional stress and while intoxicated.
The defendant conceded that the statutory threshold for making an ESO was satisfied, accepting there was an unacceptable risk he would commit a serious offence without supervision. The remaining disputes were whether the order should run for three years (as the defendant contended) or five years (as the State sought), and which of the proposed conditions were appropriate.
Legal Issues
- What duration of ESO was sufficient to protect the community and support the defendant's rehabilitation?
- Which of the proposed ESO conditions were appropriate and enforceable, having regard to the risk posed and the defendant's circumstances?
- Should conditions relating to financial monitoring, internet and online communications monitoring, and disclosure to intimate partners be imposed?
Decision
Issue 1: Duration of the ESO
Adamson J imposed a five-year ESO, rejecting the defendant's submission that three years was sufficient. The court found that, absent supervision, it would be almost inevitable that the defendant would re-offend violently (at [30]). The court accepted expert evidence that achieving sustained therapeutic learning takes time, and that establishing a sense of community, purpose, and belonging requires an extended period of structured support (at [42]).
A three-year order was found to be insufficient both to protect the public and to serve the defendant's rehabilitation interests (at [43]). Adamson J observed that a shorter order would create a near-inevitable further application for another ESO, which would require the defendant to revisit his traumatic history through renewed expert assessments and court proceedings, potentially destabilising his rehabilitation and increasing the risk of reoffending (at [40]).
Issue 2: Conditions relating to daily schedule and movements
The court imposed the plaintiff's version of conditions requiring the defendant to maintain and adhere to a daily schedule of activities. The defendant's alternative formulation, which would have permitted him to depart from the schedule merely by notifying his Departmental Supervising Officer (DSO) in advance, was rejected as insufficiently enforceable and likely to thwart effective monitoring (at [49]-[51]).
Issue 3: Financial monitoring condition
The court declined to impose the proposed condition requiring monitoring of the defendant's financial transactions (at [59]). Both expert witnesses considered the condition to be of questionable utility, as there was no evidence linking the defendant's impulsive spending or financial conduct to his pattern of offending. The court found the condition did not meaningfully ameliorate the risk posed and would unnecessarily undermine the defendant's autonomy (at [58]-[59]).
Issue 4: Internet and online communications monitoring
The court rejected the proposed conditions relating to internet and online activity monitoring (at [68]). There was no evidence that the defendant's offending was connected to internet use, online communications, pornography, or gambling. The expert witnesses considered these conditions unnecessary and potentially counterproductive (at [68]).
Issue 5: Disclosure to intimate partners
The court imposed the condition requiring the defendant to disclose his criminal history to intimate partners, but with an amendment providing that disclosure occur following consultation with one of the defendant's therapists (at [63]-[65]). The court accepted expert evidence that disclosure without appropriate support could destabilise the defendant's rehabilitation by leaving him isolated and distressed, and could affect the intimate partner's wellbeing.
Issue 6: Information sharing between treatment providers and the DSO
The court imposed condition 42, allowing treating clinicians and other service providers to share information with the DSO without qualification, accepting expert evidence that a holistic approach to supervision and treatment was important (at [72]). Condition 43, requiring treating practitioners to share progress reports with the DSO, was imposed with the amendment that sharing occur after consultation with the defendant, in response to expert concern about preserving the therapeutic relationship (at [73]-[74]).
Orders Made
- An extended supervision order for five years from the date of the order, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW).
- The defendant is directed to comply with the conditions set out in the Schedule to the judgment for the duration of the ESO, pursuant to s 11 of the Act.
- Expert reports prepared pursuant to earlier court orders are authorised to be provided to Corrective Services NSW, supervising agencies, and the defendant's treating clinicians or health care practitioners.
- Non-parties are prohibited from accessing the court file without leave of a judge, after giving the parties an opportunity to be heard.
Key Takeaways
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A five-year ESO was warranted where expert evidence established that sustained therapeutic change requires an extended period of supervision, and where a shorter order would foreseeably necessitate further proceedings that could themselves destabilise rehabilitation (at [40], [43]).
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Under the Crimes (High Risk Offenders) Act 2006 (NSW), proposed ESO conditions must genuinely ameliorate the risk posed by the offender's particular pattern of offending. Conditions that are not connected to that pattern, including financial monitoring and internet oversight where online activity has no relevance to the offending, will not be imposed (at [58]-[59], [68]).
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Where proposed conditions could undermine the therapeutic relationship or destabilise rehabilitation, the court may modify those conditions on the basis of expert evidence, even over the plaintiff's objection, provided the modified form adequately addresses the protective purpose of the Act (at [73]-[74]).
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Conditions requiring disclosure of criminal history to intimate partners can be appropriate where an offender has a history of domestic violence, but the court may require that disclosure occur with therapeutic support to guard against consequences that could increase rather than reduce risk (at [63]-[65]).
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The protective and rehabilitative purposes of the Act are closely interrelated: if an order is structured to support genuine rehabilitation, the protective benefit follows. The court treated these purposes as complementary rather than competing in calibrating both the duration and the conditions of the ESO (at [28], [43]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 ( NSW), ss 33, 35, 59,
- Crimes ( Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5A, 5B, 9, 11, 15, 18C
- Crimes ( Sentencing Procedure) Act 1999 (NSW), s 10A
Cases
- State of New South Wales v Partington (Preliminary) [2019] NSWSC 732