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Supreme Court 20 December 2024

State of New South Wales v Cole (Final)

[2024] NSWSC 1640

Sexual offences
HIGH RISK OFFENDER FINAL ORDERS HEARING SERIOUS SEX OFFENCE WHERE DEFENDANT IS A FORENSIC PATIENT APPLICATION GRANTED EXTENDED SUPERVISION ORDER MADE

Citation: State of New South Wales v Cole (Final) [2024] NSWSC 1640
Court: Supreme Court of New South Wales
Date: 20 December 2024
Judge(s): Yehia J

Background

The plaintiff (the State of New South Wales) applied for a final Extended Supervision Order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act) in respect of the defendant, a convicted serious sex offender. The defendant had committed multiple serious sexual offences and, at the time of the proceedings, remained a forensic patient under the supervision of the Mental Health Review Tribunal (the Tribunal) pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act).

The central dispute was not simply whether the defendant posed an unacceptable risk, but whether an ESO was necessary given that the defendant would continue to be managed as a forensic patient by the Tribunal. The defendant argued that the Tribunal's regime, supplemented by NDIS support and voluntary medication, was sufficient to address any unacceptable risk of reoffending.

A preliminary judgment had already been handed down in this matter (State of New South Wales v Andrew Cole [2024] NSWSC 996), and the final hearing determined whether to impose the ESO and on what conditions.

Legal Issues

  • Whether the defendant posed an unacceptable risk of committing another serious sex offence if not kept under supervision, assessed to a high degree of probability, under section 5B(d) of the CHRO Act
  • Whether the court should exercise its residual discretion to decline to impose an ESO on the basis that the Tribunal's forensic patient regime could adequately manage the defendant's risk
  • What conditions, if any, should attach to any ESO imposed

Decision

Issue 1: Unacceptable risk

Yehia J was satisfied to the required high degree of probability that the defendant posed an unacceptable risk of committing a further serious sex offence if not kept under supervision (at [114], [117]). The court-appointed experts, Dr Dayalan and A/Prof Darjee, were unanimous that the defendant presented a high risk of further serious sexual offending. Multiple actuarial instruments, including the STATIC-99R, placed the defendant in the "well above average" risk category for sexual reoffending (at [71], [75]). Key risk factors included antisocial personality disorder, substance use disorders, egocentric interpersonal patterns, and hostility towards women (at [115]). The court noted that while the defendant had completed some rehabilitation programs, experts remained of the view that he required close community supervision, particularly given his significant degree of institutionalisation and the risk of relapse under the stress of community transition (at [116]).

Issue 2: Residual discretion and adequacy of the mental health regime

The defendant argued that the court should decline to make an ESO, relying on the Tribunal's expertise in managing forensic patients and the availability of conditional release conditions under the MHCIFP Act. The court rejected this argument. Critically, the defendant's sexual offending was found not to be causally connected to his mental health conditions but to other factors including substance abuse, antisocial personality disorder, and attitudes towards women (at [120]). The Tribunal, while expert in treating mental illness, was not well placed to manage the specific risk profile of a high-risk sexual offender with psychopathy. The court found the Tribunal lacked the funding, infrastructure, and expertise to properly monitor essential conditions such as electronic monitoring and schedule of movements (at [124]). Although the MHCIFP Act empowers the Tribunal to impose electronic monitoring, no such condition had been imposed in the six years of Dr Matthews' experience at the Forensic Hospital, and NSW Health had no capacity to monitor such a device (at [123]). NDIS support was accepted as helpful in reducing general risk, but the court found it did not provide the specialist expertise needed to manage the defendant's risk of serious sexual offending (at [125]). The court found the defendant's risk factors were better managed under the ESO regime, which had the resources, expertise, and legal tools to enforce essential conditions (at [134], [135]).

Issue 3: Conditions

Yehia J imposed the conditions sought by the plaintiff with one exception. Condition 25 was declined as it unnecessarily restricted the defendant's movements (at [142]). The court accepted that conditions including electronic monitoring, schedule of movements, drug testing, accommodation restrictions, and engagement with treatment services were necessary, particularly in the early stages of community transition (at [140]).

Orders Made

  • The defendant is subject to an Extended Supervision Order for a period of three years from the date of the order, 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 conditions set out in the Schedule to the orders for the period of the Extended Supervision Order, pursuant to section 11 of the CHRO Act
  • Access to the Supreme Court's file by non-parties requires leave of a judge of the Court, with parties to be notified of any such application

Key Takeaways

  • An ESO may be imposed on a defendant who is already a forensic patient under the MHCIFP Act, where the expert evidence establishes that the mental health regime lacks the funding, infrastructure, and practical capacity to manage the specific risk of serious sexual reoffending (at [134]-[135]).

  • Where a defendant's serious sexual offending is not causally connected to mental health conditions but to other factors such as substance abuse and antisocial personality traits, management under the mental health regime is unlikely to be sufficient, even if the Tribunal has the theoretical power to impose similar conditions (at [120], [124]).

  • The court confirmed that "unacceptable risk" under the CHRO Act is to be assessed according to its everyday meaning, having regard to the paramount object of community safety, and does not require a finding that reoffending is more probable than not (at [51], [56]).

  • The theoretical availability of a power (such as the Tribunal's power to impose electronic monitoring) carries limited weight where evidence establishes that the relevant authority lacks the practical capacity to exercise or enforce it (at [123]).

  • NDIS support, while beneficial in reducing general risk, was found to be insufficient on its own to manage the risk of serious sexual offending by a high-risk offender with the defendant's profile (at [125]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 61J, 86(1), 97(1), 148’ Div 10, Pt 3
- Crimes ( High Risk Offenders) Act 2006 (NSW), ss 3, 3(1), 3(2), 4, 5(1)(a)(i), 5(1)(a)(ii), 5B, 5B(a), 5B(d), 5C(1)(c1), 5D, 5I, 5I(1)(3), 9(1), 9(2), 9(3), 10(2), 10A, 10C(1), 10C(1A), 11
- Mental Health Act 2007 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 30, 72(1)(c), 83(1), 85, 97(1)
- Mental Health ( Criminal Procedure) Act 1990 (NSW), s 39

Cases
- Attorney General for New South Wales v HRM bht Ramjan (Final) [2021] NSWSC 1535
- Attorney General for New South Wales v McGuire by his tutor Thomson [2019] NSWSC 76
- Attorney General for New South Wales v Rohan (a pseudonym) by his tutor Stuart (Final) [2024] NSWSC 643
- Attorney General for NSW v Delmege by his Tutor Dr Johnson (final) [2021] NSWSC 469
- Attorney General for NSW v Skerry (by his tutor Ramjan) (Final) [2022] NSWSC 99
- Attorney General of New South Wales v Ramirez (bht Limbury) (Preliminary) [2024] NSWSC 1286
- Cornwall v Attorney General for New South Wales [2007] NSWCA 374
- Lynn v State of New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636
- State of New South Wales v Andrew Cole [2024] NSWSC 996
- State of New South Wales v Holschier (No 3) [2019] NSWSC 341
- State of New South Wales v Keech [2024] NSWSC 408
- State of New South Wales v Rush (Final) [2022] NSWSC 984
- State of New South Wales v Tannous (Preliminary) [2022] NSWSC 1682