State of New South Wales v Whiley

In the case of State of New South Wales v Whiley, the respondent, a high-risk offender, was subject to an application for a continuing detention order (CDO) under the Crimes (Serious and Organised Crime Control) Act 2005. The dispute arose in the context of the respondent's criminal history and the potential risk of reoffending. The application was brought before the Supreme Court of New South Wales.

The court was required to determine whether the application for a CDO should be considered ahead of an alternative application for an extended supervision order (ESO). This involved a review of the legal principles guiding such applications and the appropriate process to assess the risk of reoffending. The court also had to consider the factors outlined in subsection 17(4) of the Act, including the respondent's criminal history, sentencing remarks, expert reports, risk management reports, and compliance with parole and corrective services program obligations.

The court concluded that the application for a CDO should be considered first. It adopted a two-stage process where it first assessed whether there was an unacceptable risk of the respondent committing another serious offence if not kept in detention, and then whether there was an unacceptable risk if not kept under supervision. The court emphasised the relevance of the factors under subsection 17(4) to both stages of the risk assessment. Ultimately, the court found that there was no unacceptable risk of the respondent committing another serious offence if kept in detention, but there was an unacceptable risk if not kept under supervision.

The final orders included the dismissal of the application for a CDO and the granting of an ESO for a period of five years. This decision was based on the court's assessment that the respondent represented an unacceptable risk if not kept under supervision, as per the criteria outlined in the Act.