State of New South Wales v Brookes

The Court of Appeal of New South Wales heard an appeal by the State of New South Wales against a decision of the primary judge concerning an application for a continuing detention order under the Crimes (Serious Sex Offenders) Act 2006 (NSW). The State sought to have the respondent, Mr. Brookes, detained on the basis that he posed an unacceptable risk of reoffending. The primary judge had instead made an extended supervision order.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that adequate supervision could be provided by an extended supervision order, particularly in light of the conditions requiring attendance at counselling if available and the uncertainty surrounding the respondent's amenability to anti-libidinal treatment. The Court also considered whether the primary judge erred in concluding that funds were available for community-based treatment and whether the extended supervision order was contingent on the availability of such treatment.

The Court of Appeal reasoned that the determination of whether a supervision order would provide adequate protection for the community was a matter for the Court. It was held that the Court was entitled to assume that the Executive would not make an irrational decision regarding the funding of treatment in the circumstances. The Court found no error in the primary judge's conclusion that an extended supervision order could provide adequate protection, notwithstanding the uncertainties regarding treatment availability and the respondent's amenability to it.

The appeal was dismissed, with the Court of Appeal upholding the primary judge's decision to make an extended supervision order rather than a continuing detention order.