Citation: State of New South Wales v Morgan (Final) [2024] NSWSC 1252
Court: Supreme Court of New South Wales
Date: 14 October 2024
Judge(s): R A Hulme AJ
Background
The State of New South Wales applied for a five-year extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) in relation to a 69-year-old man with a lengthy history of serious sexual offending against adults and children spanning from 1976 to 2016. His convictions included rape, indecent assault, and aggravated sexual intercourse without consent involving victims aged between 11 and 19. At the time of the final hearing, he was subject to pending charges of possessing bestiality material, which had been discovered during a search carried out pursuant to his obligations under the Child Protection (Offenders Registration) Act 2000 (NSW).
A preliminary hearing before Wilson J in July 2024 resulted in the appointment of two expert psychologists and the making of an interim supervision order. The respondent was released from custody on bail on 23 August 2024 after the balance of his parole expired.
The respondent did not contest the making of the ESO itself, conceding it was "almost inevitable" given his history and the expert evidence. The dispute at the final hearing was confined to whether certain proposed conditions were justified.
Legal Issues
- Whether the statutory preconditions for making an extended supervision order under the Crimes (High Risk Offenders) Act 2006 were satisfied
- What duration the ESO should take
- Whether contested conditions were appropriate, specifically:
- Conditions requiring provision of a schedule of movements
- Place restrictions requiring prior approval for certain locations
- Drug and alcohol conditions
- Restrictions on use of social networking and encrypted messaging applications
- A prohibition on possession or control of animals
Decision
Threshold and duration: The court was satisfied that all statutory preconditions were met and that there was a high degree of probability the respondent posed an unacceptable risk of committing another serious sex offence if not kept under supervision (at [40]). Both court-appointed experts confirmed the risk and endorsed an ESO as a risk management mechanism (at [39]). The court accepted the State's submission that a five-year order was appropriate to allow for community reintegration, meaningful treatment, and monitoring (at [45]).
Movement schedule conditions: The court rejected the respondent's objection to conditions requiring him to provide a schedule of movements if directed. The conditions were supported by the risk management expert and both court-appointed psychologists, and consistent with the approach taken by Wilson J at the preliminary hearing (at [48]-[52]).
Place restrictions (condition 18): The court rejected the objection to condition 18, which required prior approval before attending places where young females may be found unsupervised, including cinemas, libraries, museums, camping grounds, and sporting facilities. The court noted the condition was not prohibitive but required forethought and engagement with the supervising officer (at [57]-[58]).
Drugs and alcohol conditions: The court included all contested drug and alcohol conditions. The respondent had given inconsistent accounts of his substance use over many years, and both the sentencing history and expert evidence supported a potential link between disinhibition and offending risk (at [62]-[67]). The court also noted the respondent's expressed interest in obtaining bar work and the risk of him sexually exploiting intoxicated women encountered in licensed premises (at [65]).
Social networking and encrypted messaging (condition 38): The court included condition 38, prohibiting use of social networking, encrypted messaging, online gaming, and instant messaging applications without prior approval. The respondent had a history of failing to disclose social media accounts and dating website use in breach of his Child Protection Act obligations (at [80]-[83]).
Animal prohibition (condition 58): The court included a new condition prohibiting the respondent from possessing, owning, or controlling any animal for more than seven hours without supervising officer authorisation. Both experts noted current indicators of a deviant sexual interest in animals, including a provisional diagnosis of zoophilia, the pending bestiality material charges, and a historically disturbing conviction for maliciously killing a horse in 1977 (at [86]-[92]).
Orders Made
- The respondent is subject to an extended supervision order for a period of five years from 14 October 2024
- For the period of the ESO, the respondent must comply with the conditions set out in the Schedule annexed to the Order entered on JusticeLink on 14 October 2024
Key Takeaways
- The Supreme Court confirmed that where a respondent concedes the statutory threshold for an ESO is met and expert evidence strongly supports the order, the court will focus its analysis on the appropriateness of individual conditions rather than the order itself.
- Conditions restricting access to places frequented by young females are not prohibitive in nature where they require prior approval rather than outright exclusion, and such conditions were upheld on that basis (at [57]-[58]).
- Inconsistent self-reporting about substance use over many years, combined with expert evidence of a potential link to offending risk, was sufficient to justify the inclusion of drug and alcohol conditions even where a direct causal link to past offending was not established (at [62]-[67]).
- A provisional diagnosis of zoophilia, supported by pending charges and expert opinion about current deviant sexual interest, provided sufficient basis for a condition restricting access to animals, notwithstanding that the underlying charges remained unproven (at [86]-[92]).
- Under the Crimes (High Risk Offenders) Act 2006, a victim's statement supporting the making of an ESO and its conditions is expressly provided for and was acknowledged by the court as reinforcing the nature of the risk inherent in any future serious sex offending (at [93]-[94]).
Legislation and Cases Referenced
Legislation
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
Cases
- State of New South Wales v Morgan (Preliminary) [2024] NSWSC 892
- State of New South Wales v O’Hara (Final) [2024] NSWSC 225
- State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813