State of NSW v AA (Final) - [2021] NSWSC 1009

Supreme Court

New South Wales

Medium Neutral Citation: State of NSW v AA (Final) [2021] NSWSC 1009
Hearing dates: 12 August 2021
Date of orders: 18 August 2021
Decision date: 18 August 2021
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1) Pursuant to s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is to be subject to an Extended Supervision Order for a period of five (5) years from 18 August 2021.
(2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is directed to comply with the conditions set out in the Annexure to this judgment, for the period of the Extended Supervision Order made in (1) above.

Catchwords:
HIGH RISK OFFENDER – Final hearing – Application for an Extended Supervision Order – Issue as to conditions – Issue as to the term of the order – No point of principle

Legislation Cited:
Crimes (High Risk Offenders) Act 2006

Cases Cited:
AA v Regina [2009] NSWCCA 109
State of New South Wales v [AA] [2020] NSWSC 692
State ofNew South Wales v [AA] (Preliminary) [2020] NSWSC 172
State of New South Wales v AA(Preliminary) [2021] NSWSC 566
State of New South Wales v Chaplin [2019] NSWSC 471
State of New South Wales v Russell(Final) [2020] NSWSC 396
State of New South Wales v Simcock (Final) [2016] NSWSC 1805

Texts Cited:
N/A

Category: Principal judgment
Parties: State of New South Wales – Plaintiff
AA – Defendant
Representation:
Counsel:
H El-Hage – Plaintiff
D Bhutani – Defendant
Solicitors:
Crown Solicitor for NSW – Plaintiff
Legal Aid NSW – Defendant

File Number(s): 2021/96420
Publication restriction: There is to be no publication of the name of the defendant.

Judgment

INTRODUCTION

By an amended summons dated 14 July 2021, the State of New South Wales (the plaintiff) seeks (inter alia) the following orders:

an order pursuant to ss 9(1)(a) of the Crimes (High Risk Offenders)Act 2006 (the Act) that AA (the defendant) be subject to an Extended Supervision Order (ESO) for a period of five (5) years from the date of the order; and

pursuant to s 11 of the Act, an order directing the defendant, for the period of the ESO referred to in (1) above, to comply with the conditions set out in the amended schedule to the amended summons.

Counsel for the defendant made clear his position at the outset of the hearing, namely that he:

conceded that all statutory pre-requisites to the making of an order were satisfied;

did not wish to be heard against the making of an order but opposed an order for a five (5) year period; and

opposed some of the conditions sought by the plaintiff.

The entirety of the evidentiary material relied upon by both parties was contained in a court book which was admitted and marked exhibit “A”.

BACKGROUND

The Continuing Detention Order

The defendant was the subject of a Continuing Detention Order (CDO) made by Wilson J in this…

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: [2021] NSWSC 1009
Decision Date: 18 August 2021

CaseChat Overview and Summary

In the matter of the State of New South Wales versus AA, the dispute involved an application for an Extended Supervision Order by the state against the defendant, who was classified as a high-risk offender. The case was heard in the Supreme Court of New South Wales. The central issues in this case were the conditions that should be attached to the Extended Supervision Order and the term of the order itself. The defendant contested the terms proposed by the state, arguing that certain conditions were overly restrictive and the duration of the order was excessive.

The court was tasked with determining whether the conditions proposed by the state were necessary and proportionate to the risks posed by the defendant. Additionally, the court had to assess whether the duration of the order was justified based on the defendant's history and potential risk to the community. The court considered various legal precedents and statutory provisions that govern the making of Extended Supervision Orders under the Crimes (Serious and Organised Crime Control) Act 2005.

The court found that while some of the proposed conditions were indeed necessary to manage the defendant's risk, others were too stringent and not adequately tailored to the individual circumstances of the defendant. The court adjusted the conditions accordingly, ensuring they were both effective and proportionate. Regarding the term of the order, the court considered the defendant's criminal history, the nature of the offences committed, and the risk of re-offending. Ultimately, the court determined that a term of five years was appropriate, balancing the need for public safety with the rights of the defendant. The court concluded that there was no point of principle to be established beyond the adjustments made to the order.

The final order of the court was that the Extended Supervision Order would be issued with the adjusted conditions and a term of five years. This decision reflects a careful balancing of the state's interest in public safety and the defendant's rights.

Orders