State of New South Wales v Fernando (Final)

The case involved the State of New South Wales as the applicant against Fernando, the respondent, concerning the imposition of an extended supervision order. Fernando had a history of serious sex offending, culminating in a conviction in 1999. He had previously been subject to an extended supervision order for five years, which included several breaches that resulted in incarceration and the imposition of an intensive correction order. The court was tasked with determining whether an extended supervision order should be imposed on Fernando, considering his developing cognitive impairment, despite him posing an unacceptable risk to the community. The dispute centred on the conditions of the order, specifically electronic monitoring, scheduling, and restrictions on pornography.

The court needed to decide whether Fernando's cognitive impairment would hinder his ability to comply with the conditions of an extended supervision order. Additionally, the court had to balance the risk posed by Fernando against the support he received, including through the National Disability Insurance Scheme. The primary issue was whether the court should decline to impose an extended supervision order despite the unacceptable risk posed by Fernando, or whether it should impose such an order with specific conditions, including electronic monitoring and restrictions on pornography, to mitigate the risk.

In reaching its decision, the court considered the evidence of Fernando's cognitive impairment, the support he received, and the risk he posed to the community. The court found that while Fernando's cognitive impairment was a significant factor, the considerable support he received and the specific conditions proposed for the extended supervision order could effectively manage the risk. The court decided to impose an extended supervision order with electronic monitoring and dry scheduling, allowing Fernando to live in a supported accommodation and access pornography under strict conditions. The court concluded that these measures would adequately mitigate the unacceptable risk posed by Fernando.

The final orders of the court imposed an extended supervision order on Fernando with electronic monitoring and dry scheduling. The order was to remain in effect for a period of three years, with conditions that Fernando must reside in supported accommodation and access pornography only under specific conditions. The court also ordered that Fernando must comply with a National Disability Insurance Scheme plan and any other conditions deemed necessary by the authorities.