State of New South Wales v Sturgeon (No 2)

In the case of State of New South Wales v Sturgeon, the court was tasked with determining the appropriate order for the defendant, who had admitted to posing an unacceptable risk of committing another serious offence. The dispute centred around whether the defendant should be subject to an Extended Supervision Order or a Continuing Detention Order. The matter was heard in the Supreme Court of New South Wales. The primary legal issue was to decide the appropriate order, considering the defendant's concession that he poses an unacceptable risk if not under supervision. The court was also required to apply the correct legal tests in determining whether to impose an Extended Supervision Order or a Continuing Detention Order, including assessing the risk comparison between the defendant in the community and in detention.

The court addressed the legal issues by first noting the changes to the comparative test, which no longer required consideration of an Extended Supervision Order. Instead, the court had to compare the risk of the defendant in the community against the risk if he were in detention. The court emphasised the plaintiff's evidentiary obligation and duty to assist the court, pursuant to section 56 of the Civil Procedure Act. The court considered the risk posed by the defendant, and whether the risk was sufficiently high to warrant a Continuing Detention Order. In determining the appropriate conditions for any order, the court reviewed the standard or common conditions submitted by the plaintiff. The court found that the risk posed by the defendant was high enough to justify a Continuing Detention Order.

The court concluded that the risk posed by the defendant if not detained was significantly higher than the risk if he were to be detained. The court was satisfied to a high degree of probability that the defendant would commit another serious offence if not kept in detention. Therefore, the court made a Continuing Detention Order against the defendant, in line with the legal tests and considerations outlined above. The court also imposed certain conditions on the order, in accordance with the standard or common conditions submitted by the plaintiff. This decision highlights the importance of the court's duty to consider the risk posed by the defendant and the appropriate order to mitigate that risk.