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Supreme Court 13 February 2025

State of New South Wales v Sturgeon (Preliminary)

[2025] NSWSC 46

Sexual offencesAssault & violenceDomestic & family violence
HIGH RISK OFFENDER PRELIMINARY HEARING

Citation: State of New South Wales v Sturgeon (Preliminary) [2025] NSWSC 46
Court: Supreme Court of New South Wales
Date: 13 February 2025
Judge: Yehia J

Background

The State of New South Wales applied under the Crimes (High Risk Offenders) Act 2006 (NSW) for a further Extended Supervision Order (ESO) against a 33-year-old man with two prior convictions for serious sex offences: sexual intercourse without consent committed in 2007 when he was 17, and aggravated sexual intercourse with a child committed in 2012 when he was 22. An ESO imposed by Garling J in July 2019 remained in force but was suspended because the defendant was in custody on new charges, with the earliest possible expiry of that order being June 2025.

The defendant was in custody at the time of the preliminary hearing, having been charged with common assault and contravention of an Apprehended Domestic Violence Order (ADVO) shortly after his release in late 2024. Those matters were listed before the Local Court. His history also included multiple breaches of his existing ESO and a range of further offending during the supervision period.

At the preliminary hearing, the court was not required to determine whether an Interim Supervision Order was appropriate. Because the State conceded that the precondition in s 10A(a) of the Act could not be met given the defendant's custodial status, no Interim Supervision Order was sought. The sole question was whether the threshold test for appointing expert examiners under s 7(4) of the Act was satisfied.

Legal Issues

  • Whether the supporting documentation, if proved, would justify the making of an Extended Supervision Order under s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW)
  • Whether the material established that the defendant posed an unacceptable risk of committing a serious sex offence
  • Whether the material established that the defendant posed an unacceptable risk of committing a serious violence offence
  • Whether the preconditions for appointing two qualified psychiatrists or psychologists were satisfied

Decision

Preliminary Hearing Standard

Yehia J confirmed that the preliminary hearing requires the court only to be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO (at [95]). The court does not weigh competing expert opinions, resolve conflicts in the material, or consider what evidence the defendant might lead at a final hearing (at [96]).

Issue 1: Unacceptable Risk of Serious Violence Offence

The court was not satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing a serious violence offence (at [98]). The supporting documentation contained no detailed expert assessment directed to that specific risk, and the defendant had never been convicted of a serious violence offence (at [97]-[98]). While the material disclosed a history of violent offending and threats of violence, those matters did not satisfy the threshold, either individually or in combination (at [98]). The court noted that Garling J reached the same conclusion on the earlier 2019 application (at [99]).

Issue 2: Unacceptable Risk of Serious Sex Offence

The court was satisfied, at the preliminary stage, that the supporting documentation would if proved justify the making of an ESO on the basis of an unacceptable risk of committing a serious sex offence (at [100]). The defendant scored 7 on the STATIC-99R actuarial instrument, placing him in the "well above average" risk category, with an estimated reoffending risk approximately 5.25 times that of a typical sex offender (at [62]). He demonstrated poor and superficial engagement in the CUBIT treatment program and remained unmotivated to address his relevant risk areas (at [82]). He has continued to deny and minimise his sexual violence and has resisted sex-offence-specific risk management intervention (at [66]). The court acknowledged competing professional opinions and periods of compliance but declined to resolve those conflicts at the preliminary stage (at [102]-[103]).

Orders Made

  • Two qualified psychiatrists or psychologists (or a combination) appointed to conduct separate examinations of the defendant and furnish reports to the Supreme Court by a date to be fixed.
  • The defendant directed to attend those examinations.
  • Non-party access to the Supreme Court's file restricted: access requires leave of a judge, and parties are to be notified of any non-party application for access.

Key Takeaways

  • At a preliminary hearing under s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW), the court's task is limited: it asks only whether the matters alleged in the supporting documentation would, if proved, justify making an ESO. Competing expert opinions are not weighed and conflicts are not resolved at this stage (at [95]-[96]).

  • A history of violent offending and documented threats of violence did not, without a prior conviction for a serious violence offence or detailed expert assessment directed to that specific risk category, satisfy the threshold for unacceptable risk of committing a serious violence offence (at [97]-[98]).

  • The Supreme Court confirmed that the precondition in s 10A(a) of the Act (requiring satisfaction that the offender's current custody or supervision will expire before the proceedings are determined) meant that no Interim Supervision Order could be pursued where the defendant's existing ESO remained suspended due to his custodial status (at [4]-[5]).

  • Actuarial results placing an offender in the "well above average" sexual recidivism risk category, combined with poor treatment engagement, persistent denial and minimisation of offending, and ongoing mental health instability, were sufficient at the preliminary stage to support a finding of unacceptable risk of committing a serious sex offence (at [62], [66], [82], [100]).

  • Where an offender's risk cannot be adequately addressed by registration and prohibition order regimes under related child protection legislation, which serve different purposes, an ESO application may proceed on that basis as a distinct form of supervision (at [87]).

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Children ( Criminal Proceedings) Act 1987 (NSW) s 33
- Crimes Act 1900 (NSW) ss 61I, 61J
- Crimes ( High Risk Offenders) Act 2006 ( NSW) ss 5, 5B, 5I, 7, 10A
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 10
- Mental Health Act 2007 (NSW)

Cases
- Attorney-General for New South Wales v Tillman [2007] NSWCA 119
- State of New South Wales v Ayoub (Final) [2023] NSWSC 963
- State of New South Wales v Sturgeon [2019] NSWSC 559
- State of New South Wales v Sturgeon (No 2) [2019] NSWSC 883