State of NSW v Colebrook - [2016] NSWSC 1702

Supreme Court

New South Wales

Medium Neutral Citation: State of NSW v Colebrook [2016] NSWSC 1702
Hearing dates: 29 November 2016
Decision date: 01 December 2016
Jurisdiction: Common Law
Before: Adamson J
Decision:
See paragraph [163]

Catchwords: CRIMINAL LAW – Crimes (High Risk Offenders) Act 2006 – application for extended supervision order – final hearing – defendant poses unacceptable risk of committing serious sex offence – consideration of factors in s 9(3) of Crimes (High Risk Offenders) Act 2006 – appropriate period for ESO – relevance of secondary object of encouraging defendant to undertake rehabilitation – whether particular conditions appropriate – need to avoid ambiguity – extended supervision order made for maximum period of five years
Legislation Cited: Crimes Act 1900 (NSW) – s 61J
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW) – ss 3, 4, 5, 5B, 5C, 5I, 7, 9, 10, 10A, 11, 12, 13, 21, 25
Cases Cited: Lynn v State of New South Wales [2016] NSWCA 57
Regina v Colebrook [1999] NSWCCA 262
State of New South Wales v Colebrook [2016] NSWSC 1295
State of New South Wales v Donovan [2015] NSWCA 280
Wilde v State of New South Wales [2015] NSWCA 28
Category: Principal judgment
Parties: The State of New South Wales (Plaintiff)
Daniel Michael Colebrook (Defendant)
Representation:
Counsel:
L Fernandez (Plaintiff)
D O’Neil (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid Commission of NSW (Defendant)

File Number(s): 2016/226427
Publication restriction: Nil

Judgment

Introduction

By summons filed on 27 July 2016, the State of New South Wales (the plaintiff) sought an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in respect of Daniel Colebrook (the defendant) for a period of five years, on the conditions set out in the schedule annexed to the summons. Except where otherwise stated all references to legislative provisions in these reasons are to the Act. The plaintiff also sought an interim supervision order (ISO) against the defendant pursuant to s 10A pending the final hearing of this matter and an order pursuant to s 7(4) appointing either two psychiatrists or a psychiatrist and a psychologist to examine the defendant and report to the Court on the examinations.
On 12 September 2016 Wilson J made orders under s 7(4) and ordered an ISO to commence on 15 September 2016, being the day on which the defendant’s sentence expired: State of New South Wales v Colebrook [2016] NSWSC 1295.
The ISO has since been renewed twice. The most recent ISO is due to expire on 7 December 2016.
Mr O’Neil, who appeared on behalf of the defendant, ultimately accepted that it was open to the Court to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision. However, Mr O’Neil contended that, if an ESO was made, it ought not be for the maximum period of five years. He submitted that…

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.

Continue reading State of NSW v Colebrook

Details

AGLC: State of NSW v Colebrook [2016] NSWSC 1702
Case: [2016] NSWSC 1702
Decision Date: 01 December 2016

CaseChat Overview and Summary

The defendant, Colebrook, was subject to an application by the State of New South Wales for an extended supervision order under the Crimes (High Risk Offenders) Act 2006. The application arose from a concern that Colebrook posed an unacceptable risk of committing a serious sex offence. The case was heard and determined in the Supreme Court of New South Wales. The primary issue for the court was to decide whether the defendant indeed posed such a risk and, if so, what period of extended supervision would be appropriate, considering the factors outlined in section 9(3) of the Act. Additionally, the court needed to determine the suitability of particular conditions to be imposed as part of the order.

In assessing the risk posed by Colebrook, the court considered various factors, including the nature and circumstances of the past offences, the defendant's history of reoffending, and the likelihood of future reoffending. The court also examined the secondary objective of the Act, which is to encourage the rehabilitation of the defendant. The court found that the defendant's past behaviour and risk factors indicated a significant likelihood of reoffending, particularly in relation to serious sex offences. The court further concluded that the conditions proposed were suitable and necessary to manage this risk effectively, while also promoting rehabilitation. The court ultimately determined that an extended supervision order for the maximum period of five years was appropriate, balancing the need for public safety with the potential for rehabilitation.

Orders