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Supreme Court 4 February 2022

State of NSW v CD

[2022] NSWSC 61

Sexual offencesPublic order & justice offences
HIGH RISK OFFENDERS EXTENDED SUPERVISION ORDER UNACCEPTABLE RISK BURDEN AND ONUS OF PROOF

Citation: State of NSW v CD [2022] NSWSC 61
Court: Supreme Court of New South Wales
Date: 4 February 2022
Judge(s): Rothman J

Background

The State of New South Wales applied for an Extended Supervision Order (ESO) against the defendant, referred to as "CD" pursuant to suppression orders. An ESO is a court-ordered regime of conditions that supervises high-risk offenders in the community under the Crimes (High Risk Offenders) Act 2006 (NSW). The defendant was 23 years old at the time of the hearing and had been released on parole in October 2021 after serving a sentence for five counts of sexual intercourse with a child aged 15, committed in April 2017 when the defendant was 18.

The defendant had a significantly disrupted childhood, including being sexually abused at age four, and had a criminal history stretching back to 2011. He had previously been subject to both an ESO and an Interim Supervision Order (ISO). At the time of the final hearing, the ISO imposed by Lonergan J in November 2021 remained in force.

The State sought an ESO for three years with a detailed set of conditions under section 11 of the Act. The defendant opposed the making of any ESO, arguing the unacceptable risk threshold had not been met, and alternatively sought continuation of the existing ISO conditions with certain modifications and a shorter duration.

Legal Issues

  • Whether the court could be satisfied, to a high degree of probability, that the defendant posed an unacceptable risk of committing a further serious offence if not kept under supervision under an ESO.
  • What conditions should be imposed under section 11 of the Act if an ESO were granted.
  • What duration the ESO should run, given the State sought three years and the defendant sought a shorter term.

Decision

Issue 1: Unacceptable risk

Rothman J confirmed the applicable legal framework. The court is not required to find that reoffending is more likely than not; rather, the risk assessment involves a matrix that combines the likelihood of a serious offence (something more than a mere possibility) with the gravity of harm that would result if such an offence occurred (at [112]-[113]). Where the potential harm is severe, even a lower probability of reoffending can constitute an unacceptable risk (at [114]).

Both expert witnesses, forensic psychologist Mr Sheehan and forensic psychiatrist Dr Furst, assessed the defendant's risk of sexual offending as above average to well above average compared with other sex offenders (at [116]). The defendant had a chronic history of abusive sexual behaviour from age 10, struggled to accept his conduct as offending even after completing the High Intensity Sex Offending Program (HISOP), and exhibited hostile attributions towards women and serious problems with substance use and intimate relationships (at [43]-[50]). Rothman J found that the combination of above-average risk and the serious lifelong harm any further offending would cause satisfied the unacceptable risk test to a high degree of probability (at [117]-[118]). The court also accepted expert opinion that the defendant would likely disengage from voluntary community services in the absence of an ESO (at [119]).

Issue 2: Conditions

The court declined to impose the more detailed set of conditions sought by the State, preferring instead to continue the conditions that had been operating under the ISO. Expert opinion had cautioned that the transition from ISO to ESO should not be experienced by the defendant as a backward step involving tighter supervision, and that supervision should follow a path of attenuating rather than escalating restriction (at [59]-[60], [129]). Rothman J accepted that more detailed conditions, even if technically not more onerous, might be perceived as such and that this perception would be counter-productive (at [129]).

The court accepted with modifications the defendant's proposal regarding the weekly schedule condition, adjusting the grounds on which the supervising Departmental Supervising Officer (DSO) could withhold approval to include not only risk of a serious offence but also risk of breach of another condition or conduct detracting from rehabilitation (at [132]). The court declined the defendant's proposed 12-month sunset clause on the schedule requirement, requiring compliance throughout the ESO (at [133]). On electronic monitoring, the court accepted a sunset clause in principle but widened it beyond the defendant's proposal to apply unless there had been conduct that on a reasonable basis increased the risk of a serious offence or inhibited rehabilitation (at [135]).

Issue 3: Duration

Rothman J declined to impose the three-year term sought by the State. The court held that two years was sufficient, noting that the State retains the power to seek a fresh ESO at the conclusion of this order, and that after two years the defendant's conduct and attitude in the community would be readily assessable (at [127]-[128]).

Orders Made

  • The defendant is subject to an Extended Supervision Order for two years commencing 5 February 2022, pursuant to sections 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW).
  • The defendant is directed to comply with the Schedule of Conditions of Supervision attached to the orders, pursuant to section 11 of the Act.
  • Access to the court file by any non-party is prohibited without leave of a Judge of the Court; parties are to be notified of any such application and given an opportunity to be heard.

Key Takeaways

  • The unacceptable risk test under the Crimes (High Risk Offenders) Act 2006 (NSW) involves a matrix: the court assesses the likelihood of reoffending together with the gravity of harm that would result, and does not require a finding that reoffending is more likely than not (at [112]-[113]).

  • An assessment of risk as "above average or medium-high range" by one expert and "well above the average sex offender" by another does not constitute a material inconsistency warranting rejection of either opinion; risk assessment is not an exact science (at [99]).

  • A defendant's perception that the transition from an ISO to an ESO represents a tightening of supervision is a legitimate factor that courts can weigh when determining both the content of conditions and their duration (at [59], [129]).

  • Where the State retains power to seek a further ESO at the end of the current order's term, this supports the imposition of a shorter duration than that sought where the defendant's progress in the community can be reassessed (at [127]-[128]).

  • Sunset clauses on specific ESO conditions such as electronic monitoring may be appropriate, but courts can frame those clauses more broadly than a defendant proposes to account for conduct that, while not a formal breach, increases reoffending risk or inhibits rehabilitation (at [135]).

Legislation and Cases Referenced

Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- State of New South Wales v CD (preliminary) [2021] NSWSC 1396