Citation: State of New South Wales v Shields (Preliminary) [2022] NSWSC 469
Court: Supreme Court of New South Wales
Date: 20 April 2022
Judge(s): Wright J
Background
The State of New South Wales brought a preliminary application under the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act) in relation to the defendant, Thomas John Shields. The application sought an interim supervision order and examination orders ahead of a final hearing to determine whether a longer-term supervision order was warranted.
The judgment deals with the preliminary stage of proceedings. At this stage, the court was not required to make final findings about the defendant's risk level. Rather, the question was whether, assuming the matters alleged in the supporting material were proved, there would be an unacceptable risk of the defendant committing a serious offence if he were not supervised.
The court ultimately granted the interim orders sought, imposing a detailed schedule of supervision conditions on the defendant.
Legal Issues
- Whether, on the material filed in support of the application, there was an arguable case that the defendant posed an unacceptable risk of committing a serious offence if not supervised
- Whether an interim supervision order should be made under ss 10A and 10C(1) of the CHRO Act
- What conditions should be imposed as part of the interim supervision order
- Whether examination orders should be made under s 7(4) of the CHRO Act directing the defendant to attend psychiatric or psychological assessments
Decision
Issue 1: Threshold for Interim Supervision
The court was satisfied, on the supporting material, that the statutory threshold for making an interim supervision order was met. Assuming the matters alleged were proved, there would be an unacceptable risk of the defendant committing a serious offence in the absence of supervision. This is the standard required at the preliminary stage, consistent with the approach established in cases such as Attorney General for New South Wales v Tillman and Cornwall v Attorney General for New South Wales.
Issue 2: Conditions of the Interim Supervision Order
The court imposed a comprehensive schedule of conditions governing the defendant's conduct during the 28-day interim period. These conditions addressed his associations, electronic communications, identity, health management, and information sharing. The defendant was prohibited from associating with persons in custody without prior approval of a Designated Supervision Officer (DSO) (at [42]), from engaging the services of sex workers without DSO approval (at [43]), and from using any alias or electronic identity other than his true name (at [48]). He was also prohibited from using any coded or encrypted messaging service (at [52]) and from accessing social networking services without DSO approval (at [54]). The defendant was directed not to delete or alter any electronic data without DSO consent (at [56]) and not to possess or access material classified as Refused Classification or X18+ (at [60]).
Further conditions required the defendant not to change his name without notifying a DSO (at [61]), not to significantly alter his appearance without approval (at [62]), to take only prescribed medication in the manner prescribed (at [67]), and to consent to his healthcare practitioners and treatment providers sharing information with each other and with a DSO (at [69]). He was also required to agree to the disclosure of his criminal history to any healthcare professionals treating him (at [71]).
Issue 3: Examination Orders
The court made orders under s 7(4) of the CHRO Act appointing two qualified psychiatrists or registered psychologists (or a combination) to conduct separate examinations of the defendant and report to the court. The defendant was directed to attend those examinations.
Orders Made
- Two qualified psychiatrists or registered psychologists appointed to conduct separate examinations of the defendant and furnish reports to the court, pursuant to s 7(4) of the CHRO Act, on dates agreed between the parties
- The defendant directed to attend those examinations
- An interim supervision order made pursuant to ss 10A and 10C(1) of the CHRO Act, commencing immediately after midnight on 24 April 2022, for a period of 28 days
- The defendant directed to comply with the conditions set out in the schedule to the orders for the duration of the interim supervision order, pursuant to s 11 of the CHRO Act
- Liberty to restore on three days' notice if the parties are unable to reach agreement regarding the examination appointments
Key Takeaways
- At the preliminary stage of proceedings under the CHRO Act, the court does not make final findings on risk; it determines only whether, assuming the supporting material is proved, there is an arguable case of unacceptable risk of serious offending in the absence of supervision.
- Interim supervision orders under the CHRO Act can carry extensive and granular conditions, including restrictions on encrypted communications (at [52]), social media access (at [54]), electronic data management (at [56]), and physical appearance changes (at [62]).
- A Designated Supervision Officer plays a central role in administering interim supervision conditions, with authority to approve or withhold consent across a wide range of the defendant's daily activities, from device use to associations.
- Under s 7(4) of the CHRO Act, the court may direct a defendant to submit to examination by qualified psychiatrists or psychologists at the preliminary stage, with reports to be furnished to the court ahead of the final hearing.
- Healthcare information sharing conditions, including disclosure of criminal history to treating professionals (at [71]) and consent to inter-agency information exchange (at [69]-(at [70])), formed part of the supervision framework imposed at the interim stage.
Legislation and Cases Referenced
Legislation
- Child Protection (Offenders Registration) Act 2000 (NSW), s 17
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5B, 5I, 7, 9, 10A, 11
- Criminal Code (Cth), ss 474.19, 474.27, 474.27A
- Law Enforcement (Powers and Responsibilities) Act 1997 (NSW)
Cases
- Attorney General for New South Wales v Tillman [2007] NSWCA 119
- 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 Dickson (Preliminary) [2019] NSWSC 1116