State of New South Wales v Devaney (Second Application) (Final) - [2025] NSWSC 349

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: State of New South Wales v Devaney (Second Application) (Final) [2025] NSWSC 349
Hearing dates: 27 February 2025
Date of orders: 16 April 2025
Decision date: 16 April 2025
Jurisdiction: Common Law
Before: Campbell J
Decision:
1) Upon the expiration of the current Interim Supervision Order on 26 April 2025, and under s 9(1)(a) Crimes (High Risk Offenders) Act 2006, the defendant is subject to an Extended Supervision Order for a period of 18 months;
2) Under s 11 of the said Act, the defendant is to comply with the conditions set out in the schedule to these reasons for the period of the extended supervision order;
3) An order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

Catchwords:
HIGH RISK OFFENDERS – extended supervision orders (ESO) – final hearing – assessment of unacceptable risk of committing a serious offence – where the criminal history and index offending of the defendant involved serious violent offending – Paranoid Schizophrenia – continued lack of insight into own risk factors – 18-month ESO imposed – where the continued involvement of the ESO remains essential – where a CTO alone does not sufficiently manage the unacceptable risk – electronic monitoring “sunrise clause” condition not imposed

Legislation Cited:
Crimes (High Risk Offenders) Act 2006 (NSW) ss 5A, 5B, 6, 7, 9, 10, 11
Crimes Act 1900 (NSW) s 29
Evidence Act 1995 (NSW) s 191
Firearms Act 1996 (NSW) ss 7, 7A
Mental Health Act 2007 (NSW) s 3
Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed)
Practice Note SC Cl 12

Cases Cited:
Devaney v R [2012] NSWCCA 285
State of New South Wales v Devaney (Final) [2022] NSWSC 60
State of New South Wales v Devaney (Second Application Preliminary) [2024] NSWSC 1621
State of New South Wales v Dennis (2024) 14 NSWLR 215; [2024] NSWSC 388
State of New South Wales v Hamze (Final) [2025] NSWSC 6.
State of New South Wales v Hamze [2025] NSWCA 22
State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86

Category: Principal judgment
Parties: State of New South Wales (Plaintiff)
Todd Devaney (Defendant)
Representation:
Counsel:
P. Aitken (Plaintiff)
J Wilcox (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Voros Lawyers (Defendant)

File Number(s): 2024/450387
Publication restriction: Nil

JUDGMENT

I have conducted the final hearing in the second application brought by the State of New South Wales (the State) for an Extended Supervision Order (ESO) against Mr Devaney. I conducted the necessary preliminary hearing on 16 December 2024 and made orders under s 7(4), an interim…

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.

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Details

Case: [2025] NSWSC 349
Decision Date: 16 April 2025

CaseChat Overview and Summary

In the Court of Criminal Appeal of New South Wales, the State of New South Wales brought a final application against John Devaney, seeking the imposition of an extended supervision order (ESO) due to his unacceptable risk of committing serious offences. The defendant, John Devaney, had a history of serious violent offending and a diagnosis of paranoid schizophrenia, with a lack of insight into his risk factors. The court was tasked with determining whether the risk posed by the defendant was such that an ESO was necessary, in addition to any other orders, and whether an electronic monitoring condition should be imposed. The legal issues centred on the criteria for imposing an ESO under the Crimes (Serious and Organised Crime) Act 2005, specifically whether the defendant's risk of committing serious offences warranted the imposition of an ESO, and whether electronic monitoring was appropriate.

The court examined the defendant's criminal history, which included serious violent offences, and his mental health diagnosis and associated risks. It considered the need for an ESO to supplement other orders, such as a Community Treatment Order (CTO), to effectively manage the unacceptable risk posed by the defendant. The court concluded that the defendant's risk of committing serious offences was sufficiently high to warrant the imposition of an ESO. Additionally, the court found that while a CTO alone did not adequately manage this risk, an ESO was necessary. However, the court decided not to impose the electronic monitoring condition, citing the "sunrise clause" as a reason for not requiring continuous electronic monitoring.

The Court of Criminal Appeal ultimately determined that an ESO was necessary to address the unacceptable risk posed by the defendant, given his history of serious violent offending and his mental health condition. The court found that an ESO was essential for managing the defendant's risk, and that a CTO alone was insufficient. The court imposed an ESO for a period of 18 months but did not impose the electronic monitoring condition. The final orders included the imposition of an ESO for 18 months, without the electronic monitoring condition, to manage the defendant's unacceptable risk of committing serious offences.

Orders