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State of New South Wales v Colebrook

State of New South Wales v Colebrook

Case [2023] NSWSC 792 14 July 2023

Extended Supervision Orders

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Supreme Court

New South Wales

Medium Neutral Citation: State of New South Wales v Colebrook [2023] NSWSC 792
Hearing dates: 10 July 2023
Date of orders: 14 July 2023
Decision date: 14 July 2023
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the extended supervision order made by Adamson J on 1 December 2016 in State of NSW v Colebrook [2016] NSWSC 1702 is revoked.

Catchwords:
HIGH RISK OFFENDERS – extended supervision orders – application for revocation – sexual offending occurred 27 years ago – defendant released on parole eight years ago – ESO imposed seven years ago – where repeated ESO breaches result in incarceration – positive drug tests – no further sexual offending – application to revoke order brought by the State – defendant supports application – evidence of significant changes in behaviour and attitude of defendant – length of time since index offences – Court independently satisfied of material change in circumstances – where defendant is currently on a Community Correction Order for 18 months – Court not satisfied to high degree of probability that defendant poses an unacceptable risk – order revoked

Legislation Cited:
Crimes (High Risk Offenders) Act 2006 (NSW) ss 5B, 5C, 9, 10, 13

Cases Cited:
State of New South Wales v Banks (Preliminary) [2021] NSWSC 1246
State of New South Wales v Carr [2020] NSWSC 643
State of New South Wales v Fisk [2013] NSWSC 364
State of New South Wales v King [2022] NSWSC 918
State of New South Wales v Manners [2008] NSWSC 1242
State of New South Wales v Paton [2020] NSWSC 1707
State of New South Wales v Paton (Preliminary) [2020] NSWSC 1178
State of NSW v Colebrook [2016] NSWSC 1702

Texts Cited:
Nil

Category: Procedural rulings
Parties: State of New South Wales (Plaintiff)
Daniel Michael Colebrook (Defendant)
Representation:
Counsel:
P Aitken (Plaintiff)
J Wilcox (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Ryan Payten Le (Defendant)

File Number(s): 2016/226427
Publication restriction: Nil

Judgment

On 1 December 2016 Adamson J made an order under ss 5C and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that the defendant be subject to a high risk sex offender extended supervision order for a period of five years from the date of the order, and that he comply with the conditions set out in the Schedule: State of NSW v Colebrook [2016] NSWSC 1702.
Ordinarily, that order would have expired on 30 November 2021. However, since the order was made, the defendant has served periods of time in custody both for failing to comply with his ESO and by reason of committing other offences. Under s 10(2) of the Act the ESO is effectively suspended while the offender is in lawful custody during the pendency of the ESO. The result is that the order made by Adamson J will not expire at the earliest until 28 February 2026.
By a notice of motion filed 27…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading State of New South Wales v Colebrook

Details

AGLC: State of New South Wales v Colebrook [2023] NSWSC 792
Case: [2023] NSWSC 792
Decision Date: 14 July 2023

CaseChat Overview and Summary

In the case of the State of New South Wales v Colebrook, the State brought an application to revoke an extended supervision order (ESO) imposed on Colebrook, a high-risk offender. The dispute arose from the State's application to revoke the ESO, which was initially imposed seven years prior, following Colebrook's release on parole eight years after serving a sentence for sexual offences committed 27 years ago. Despite repeated breaches of the ESO that resulted in incarceration and positive drug tests, there had been no further sexual offending. Colebrook, who was also on a Community Correction Order for 18 months, supported the application for revocation. The court was tasked with determining whether there had been a material change in circumstances that would warrant the revocation of the ESO.

The court considered several legal issues, including whether the State had established a material change in circumstances sufficient to warrant the revocation of the ESO. This required the court to assess the defendant's current risk of reoffending, the length of time since the original offences, and the defendant's compliance with conditions since being released on parole and subject to the ESO. The court was also required to consider the defendant's current behaviour and attitude, as well as the impact of any changes on the risk he posed to the community.

In reaching its decision, the court noted the significant changes in Colebrook's behaviour and attitude since the imposition of the ESO. The court found that, despite the breaches and positive drug tests, there had been no further sexual offending and that the defendant was currently on a Community Correction Order. The court concluded that it was not satisfied to a high degree of probability that Colebrook posed an unacceptable risk to the community. The court found that the material change in circumstances warranted the revocation of the ESO, and the order was accordingly revoked.

The court ordered the revocation of the ESO imposed on Colebrook, taking into account the significant changes in his behaviour and attitude, the length of time since the original offences, and the defendant's current compliance with the Community Correction Order. The court emphasised that its decision was based on a thorough assessment of the current risk posed by Colebrook and the material change in circumstances since the imposition of the ESO. The revocation of the ESO marked a significant step in Colebrook's rehabilitation and reflected the court's confidence in his ability to remain crime-free.

Orders