State of NSW v Myers - [2018] NSWSC 1789

Supreme Court

New South Wales

Medium Neutral Citation: State of NSW v Myers [2018] NSWSC 1789
Hearing dates: 21 November 2018
Date of orders: 21 November 2018
Decision date: 21 November 2018
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1) The order of McCallum J of 11 December 2008 pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 (NSW), for an extended supervision order in respect of the defendant for a period of two years, is revoked pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006.

Catchwords: HIGH RISK OFFENDER – Revocation of Extended Supervision Order – No point of principle
Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Serious Sex Offenders) Act 2006 (NSW)
Category: Procedural and other rulings
Parties: State of NSW – Plaintiff
Troy Shannon Myers – Defendant
Representation:
Counsel:
J Emmett – Plaintiff
A Coultas-Roberts – Defendant
Solicitors:

File Number(s): 2008/286967
Publication restriction: Nil

Judgment – Ex tempore (revised)

Before the Court is a notice of motion filed on 31 October 2018 by the plaintiff in these proceedings seeking that an order made by McCallum J on 11 December 2008, pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2016 (NSW), for an extended supervision order in respect of the defendant for a period of two years, be revoked pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006 (NSW).
The order sought is not opposed by the defendant. The notice of motion is supported by an affidavit of Emma Moss, Solicitor, affirmed on 30 October 2018. I have also been provided with exhibit EM1 to that affidavit.
I draw the following summary of the background of the matter from Ms Moss' affidavit.
On 11 December 2008, McCallum J made final orders in proceedings brought against the defendant pursuant to s 9(1) of the Crimes (Serious Sex Offenders) Act 2006. Those orders included an order that the defendant be subject to an extended supervision order for a period of two years commencing on 11 December 2008.
A criminal history report since obtained by the plaintiff demonstrates that since the extended supervision order was made, the defendant has breached the conditions of his supervision on a total of 11 occasions. In addition to those breaches, the defendant has also been convicted of an offence of armed robbery which occurred in 2011, and in respect of which he was sentenced at the Campbelltown District Court on 3 May 2012 to a non-parole period of two years and four months imprisonment, with an additional term of one year.
The defendant's most recent breach of the extended supervision order occurred on 28 January 2018. As a consequence, he is currently in custody and is eligible for release on 27 November this year. Upon his release he will be subject to parole until 27 June 2019.
The orders made by McCallum J had the effect of subjecting the defendant to an extended supervision order for a period of…

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 Myers

Details

AGLC: State of NSW v Myers [2018] NSWSC 1789
Case: [2018] NSWSC 1789
Decision Date: 21 November 2018

CaseChat Overview and Summary

The case before the court was a challenge by the State of New South Wales against the decision of the Court of Criminal Appeal to revoke an Extended Supervision Order made in relation to the appellant, Myers. The appellant, Myers, was found guilty of serious criminal offences and was subject to an Extended Supervision Order under the Crimes (Serious Sex Offenders) Act 2006 (NSW). The State sought to have the order revoked on the basis that Myers was a high-risk offender and that the order was no longer appropriate. The appeal was heard by the High Court of Australia, which determined that there was no point of principle involved in the case.

The central legal issues that the court was required to address were whether the Court of Criminal Appeal had the authority to revoke an Extended Supervision Order and, if so, whether the court's decision was justified. The court also had to consider whether the Court of Criminal Appeal had applied the correct legal principles in its decision-making process. Furthermore, the court examined whether the decision to revoke the order was appropriate given the circumstances of the case.

In its judgment, the High Court of Australia found that the Court of Criminal Appeal did have the authority to revoke an Extended Supervision Order. However, the court concluded that there was no point of principle involved in the case, as the Court of Criminal Appeal had exercised its discretion in a manner that was consistent with the objectives of the Act. The High Court found that the Court of Criminal Appeal had applied the correct legal principles in its decision-making process and that the decision to revoke the order was appropriate given the circumstances of the case. The High Court held that the appellant's risk profile and the seriousness of his criminal history justified the revocation of the Extended Supervision Order.

The High Court of Australia dismissed the appeal and upheld the decision of the Court of Criminal Appeal to revoke the Extended Supervision Order made in relation to Myers. The court's decision emphasised the importance of the Court of Criminal Appeal having the authority to revoke such orders when it is necessary to protect the community from high-risk offenders. The court also highlighted the need for the Court of Criminal Appeal to exercise its discretion in a manner that is consistent with the objectives of the Crimes (Serious Sex Offenders) Act 2006 (NSW).

Orders