[2022] NSWCA 86
State of New South Wales v Nixon (Final) [2023] NSWSC 106
Turner v State of New South Wales (2019) 99 NSWLR 767
Source
Original judgment source is linked above.
Catchwords
[2022] NSWCA 86
State of New South Wales v Nixon (Final) [2023] NSWSC 106
Turner v State of New South Wales (2019) 99 NSWLR 767
Judgment (2 paragraphs)
[1]
Judgment
On 18 October 2023 I made an extended supervision order (ESO) in respect of the defendant for a period of 18 months to commence from 20 October 2023: State of New South Wales v Brooks (Final) [2023] NSWSC 1175. The reason for the commencement date was that there was in place an interim supervision order (ISO), which had been extended to expire on 20 October 2023.
On 31 October 2023, the Crown Solicitor, acting for the State of New South Wales, forwarded a notice of motion dated 31 October 2023 to my associate seeking to vary the orders I had made in relation to the ESO. The substance of the variation of the orders was that the ISO in place at the time I made the ESO be revoked and that the defendant be subject to the ESO for a period of 18 months from 18 October 2023, being the date of my orders. The reason put forward for the variation of the orders was that:
…a question may arise regarding the relationship between the commencement of an ESO under s. 10(1) of the Crimes (High Risk Offenders) Act 2006, and the existence of an interim supervision order made by the court in the course of the relevant proceedings.
The Crown Solicitor subsequently provided a list of authorities upon which it was intended to rely in support of the notice of motion. The motion was listed for argument by both parties on 2 November 2023. Mr Aitken of counsel for the plaintiff, who had appeared at the hearing of the substantive matter, said that the State was acting as a model litigant to draw the Court's attention to the issue of the starting date of the ESO, but he was not arguing for any particular position. Mr Aitken was not asserting that my order was invalid by reason of not having been made in accordance with s 10(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), if that was determined to be the position. Rather, he submitted that, from a practical point of view, the effect of my order was that the defendant was to serve two extra days under the ESO than he would if the ESO had commenced on the day of the orders. Counsel for the defendant indicated that she would not make any submission contrary to what had been put on behalf of the State.
State of New South Wales v Brooks [2023] NSWSC 1369 | Case summary | Zoe
The basis for raising the matter was said to derive particularly from the judgment of Simpson AJA (Bell CJ and Beech-Jones JA agreeing) in State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86. In that case, the primary judge had decided three separate questions concerned with whether the defendant was a supervised offender within the meaning of ss 5B and 5I of the Act, and whether the Court could commence an ESO on a date earlier than the date when the defendants then current sentence expired. The issues raised by the separate questions were connected because it was necessary to understand what was meant by a "supervised offender" and, in that way, what was meant by "the offender's current custody or supervision" in s 10(1).
The relevant sections of the Act are these:
5B Making of extended supervision orders - unacceptable risk
The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if -
(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and
(b) the person is a supervised offender (within the meaning of section 5I), and
(c) an application for the order is made in accordance with section 5I, and
(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
…
5I Application for extended supervision order
(1) An application for an extended supervision order may be made only in respect of a supervised offender.
(2) A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's current custody or supervision) -
(a) while serving a sentence of imprisonment -
(i) for a serious offence, or
(ii) for an offence of a sexual nature, or
(iii) for an offence under section 12, or
(iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or
(b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.
(3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole.
…
10 Term of extended supervision order
(1) An extended supervision order commences when it is made, or when the offender's current custody or supervision expires, whichever is the later.
In Kaiser, the index offence that constituted a serious violence offence was manslaughter. The offender was sentenced for that offence to a sentence which ultimately expired on 10 July 2018. Thereafter, the offender was sentenced for a number of offences committed prior to the expiration of the manslaughter sentence. One or more of those sentences was to be served partly concurrently and partly consecutively with the manslaughter sentence. The sentence in respect of those particular offences expired on 9 December 2019. However, the offender was then serving a sentence specified to commence on 10 December 2018, five months after the expiration of the manslaughter sentence. It was not, therefore, a sentence which fell within s 5I(2)(a)(iv) and was not otherwise an offence within s 5I(2)(a).
The summons seeking an ESO was filed on 5 December 2018.
The result was that at the date the summons was filed (or, in the words of s 5(I)(2) "when the application for the order is made") the offender was a supervised offender, but he ceased to be a supervised offender from 9 December 2019. The ESO was not made until 8 June 2021, and at that date the offender was no longer a supervised offender.
Question 3, determined by the primary judge, Garling J, was this:
Whether, if the Court has jurisdiction to make [an extended supervision order] and it determines that it is appropriate to so order, such [extended supervision order] can commence on a date earlier than 9 December 2022 when [the respondent's] current sentence expires.
The primary judge answered the question as follows:
Assuming the court had and exercised the power to make [an extended supervision order], the earliest date upon which [an extended supervision order] can commence in this matter is 10 December 2022.
The offender's sentence for the 2017 offences did not expire until 9 December 2022. It was on that basis that the primary judge held that the ESO could not commence earlier than 10 December 2022.
Justice Simpson then went on to say:
[127] Both the State and the respondent agreed that the answer given to Question 3 is incorrect, although they advanced different reasons for so concluding.
[128] The parties agreed that the error in his Honour's reasoning lies in his overlooking that s 10(1) of the Act is concerned with the expiration of "the offender's current custody or supervision". That phrase has a particular, defined, meaning. As set out above in relation to Question 1, "current custody or supervision" for the purposes of Part 2 of the Act is defined in s 5I(2) as custody or supervision referable to any of the four categories of sentence identified in pars (a)(i) to (iv) of s 51.
[129] The respondent was, from 9 June 2021, subject to the sentence for the s 37(1) offence that will not expire until 9 December 2022, and on parole (under supervision) with respect to that sentence. However, that "custody or supervision" was not referable to any of the categories of sentence within the s 5I(2) definition; he was, therefore, as at 8 June 2021, not subject to any "current custody or supervision" within the meaning of Part 2 of the Act. Accordingly, an extended supervision order, if made, would, by s 10(1), commence on the date it was made.
[130] The respondent's position was that s 10(1), read with s 9(1)(a), confers a discretion on the court to determine the date on which an extended supervision order, if made, will commence.
[131] I reject that contention. It is true that the jurisdiction conferred by s 9(l) is discretionary (the exercise of the discretion being conditioned on the requirements of Pt 2 of the Act), but the language of s 10(1) is clear and unambiguous. It leaves no room for discretionary variation of the commencement date for which the subsection provides. There is nothing in s 10(1) (or any other provision of the Act) that suggests that the Court may depart from the commencement date so specified.
The position in the present case is different. The defendant, at the time I made my orders on 18 October 2023, was under an existing ISO. That meant that under s 5I he was a supervised offender by virtue of falling within s 5I(2)(b). Accordingly, it was the date of expiry of the defendant's "current custody or supervision" which was the later date of the two possibilities in s 10(1).
In the same way, in Lynn v State of New South Wales [2019] NSWCA 300, the continuing detention order was said to commence on the day that it was made, pursuant to s 18(1)(a) (the equivalent of s 10(1) for a continuing detention order), because the offender, although in custody, was not serving a sentence for an offence referred to in s 13B(2)(a) (the equivalent to s 5I(2)(a)).
It was submitted by the State that the decision in Turner v State of New South Wales (2019) 99 NSWLR 767; [2019] NSWCA 164 was relevant to the issue. Turner was chiefly concerned with the matter of whether the Act prevented a hiatus between applications for an Interim Detention Order, and whether an offender needed to be in custody when such applications were made. I do not consider that Turner has any relevance to the matter at issue in the present case.
Since the present defendant was subject to an ISO at the time of my orders, the correct date for the commencement of the ESO, pursuant to s 10(1) was the date of expiry of the ISO, because at the date of my orders he was a supervised offender by reason of s 5I(2)(b). Nothing in the Act requires a shortening of the period of an ISO by its revocation so that the period of the ESO begins to run. The ESO was for 18 months. It commenced two days after the orders were made. The result was not that the defendant was serving a period of two days longer than the ESO stipulated. Rather, he was serving out the period of the ISO.
My attention was drawn to decisions in State of New South Wales v Doherty (Final) [2022] NSWSC 1144 and State of New South Wales v Nixon (Final) [2023] NSWSC 106, where orders were made revoking the ISO in each case so that the ESO would commence on the date the orders were made. No reasons for doing so appear in the judgments. I can only suppose that the revocation order in each case was made because the State had submitted Short Minutes of Order in that form. My own experience in these matters for more than 14 years suggests that the provision of orders revoking ISOs is a recent development with no particular basis. Section 10(1) allows for the situation that an ISO has time to run before the ESO commences, precisely as happened in the present matter. Revoking an ISO is an unnecessary complication.
The plaintiff's Notice of Motion filed 2 November 2023 should be dismissed.
[2]
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Decision last updated: 13 November 2023