State of New South Wales v Cornwall

A preliminary jurisdictional issue arises

1. The final hearing was listed before me on 6 March 2023. On Sunday 5 March 2023, the State filed supplementary submissions indicating that a threshold jurisdictional issue had arisen as to whether the summons had been filed in compliance with ss 5I and 6(1) of the CHRO Act. As will be discussed further below, the State's reckoning of time for the filing of the summons relied upon the decision of Harrison J in State of NSW v NW [2019] NSWSC 415. The State now accepts that it would be open to the court to find that that decision was wrongly decided. The consequence of such a finding would be that the summons must be dismissed, a new summons filed, a new preliminary hearing conducted, new orders made placing Mr Cornwall on an interim supervision order ("ISO") for 28 days and the ordering of new court-appointed expert reports.
2. The prospect that the decision in State of NSW v NW might be wrong was first raised in the preliminary hearing of the application by the State for an ESO against Mr Craig Ryan, which was heard before me on Thursday 2 March 2023. That matter was adjourned until 17 March 2023 in order for the State to obtain senior counsel's advice on this jurisdictional question. The practical consequence of me (coincidentally) being allocated to hear both matters was that I had already read the relevant decisions and statutory provisions for the purposes of the State of NSW v Ryan matter prior to receiving the late submissions in this matter. In other words, I had already formed the preliminary view that the decision in State of NSW v NW was wrong by that time.
3. At the conclusion of the hearing on 6 March 2023, I indicated to the parties that I was prepared to accept their joint position that the decision in State of NSW v NW was wrong. The practical implication of this finding was that the summons in this matter had been filed 19 days prematurely. Accordingly, with the consent of Mr Cornwall, the State withdrew that summons, sought leave to file a fresh summons, and sought to have the matter listed for a preliminary hearing on the summons on a future date.
4. Given that I had already read the supporting documentation for the purposes of the final hearing, I granted leave to file the fresh summons in court and proceeded to hear the matter by way of a preliminary (rather than final) hearing. The State formally tendered the supporting documentation (with the exception of the two court reported experts) and I made the orders set out at [148] below ("the 6 March orders"). I reserved my reasons at that time.
5. These are my reasons for making the 6 March orders.

The CHRO Act

1. The objects of the CHRO Act are set out in s 3. The primary object is to provide for the extended supervision and continuing detention of high risk offenders so as to ensure the safety and protection of the community. Another object of the CHRO Act is to encourage such offenders "to undertake rehabilitation".
2. The test for the making of an ESO is contained in s 5B of the CHRO Act, which provides that: 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.
3. A "serious offence" is defined in s 4 of the CHRO Act as either a "serious sex offence" or "a serious violence offence". A "serious sex offence" is defined in s 5(1) of the CHRO Act.
4. Section 5I(1) of the CHRO Act provides for how an application is to be made. It is in these terms: 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. (Emphasis added.)
5. Section 6(1) of the CHRO Act provides for when an application for an ESO can be made and is in these terms: 6 Requirements with respect to application (1) An application for an extended supervision order against an offender may not be made until the last 9 months of the offender's current custody or supervision. (Emphasis added.)
6. The effect of ss 5I and 6 of the CHRO Act is that an application for an ESO may not be made until the last 9 months of the "sentence of imprisonment" being served, whether the offender is serving that sentence "in custody or under supervision".
7. The State commenced these proceedings by filing a summons on 26 May 2022.
8. At the time these proceedings were commenced, Mr Cornwall was serving a sentence imposed by Judge Beckett on 7 August 2020 for accessing child abuse material using a carriage service, contrary to s 474.22 of the Criminal Code Act 1995 (Cth). Her Honour sentenced Mr Cornwall to a period of imprisonment of 2 years and 3 months to date from 15 October 2020 and expire on 14 January 2023. Her Honour went on to make a Recognizance Release Order ("RRO") under s 20 of the Crimes Act 1914 (Cth). She directed that Mr Cornwall be released on 14 March 2022 (after a period of 1 year and 5 months) on a recognizance without security in the amount of $1,000 without surety to be of good behaviour for the balance of the term with the following conditions: 1. To be of good behaviour for a period of 12 months from 14 March 2022; 2. To appear for sentence as called upon to do so at any time in respect of any breach within the said period; 3. To accept the supervision and guidance of the officer of Community Services, New South Wales, for a period of 12 months and to obey all reasonable directions.
9. Thus, although the sentence of imprisonment was expressed to be one of 2 years and 3 months expiring on 14 January 2023, Mr Cornwall was placed on an RRO for 12 months dating from 14 March 2022 until 14 March 2023.1 This raises the question as to when the sentence "ended" for the purposes of ss 5I and 6 of the CHRO Act (ie whether it ended on 14 January 2023 or 14 March 2023).
10. The original summons was filed in the last nine months of Mr Cornwall's sentence if it assumed that the sentence concluded on 14 January 2023, but it was filed 19 days prematurely if his sentence did not expire until 14 March 2023, which is the date that the RRO expired. In proceeding on the basis that the sentence expired on 14 January 2023, the State relied on the decision in State of NSW v NW.
11. Although extensive submissions were filed by the parties on this point and a number of decisions relied upon, the basis upon which I am satisfied that the decision in State of NSW v NW is wrong is that, regrettably, the parties in that matter do not appear to have brought a relevant provision of the Crimes Act (Cth) governing RROs to the attention of Harrison J. I propose to first set out that legislation before considering the decision in State of NSW v NW and other relevant authorities.

Recognizance Release Orders under the Crimes Act 1914 (Cth)

1. Section 20 of the Crimes Act (Cth) provides that where a person is convicted of one or more federal offences, the court may sentence that person to a term of imprisonment but direct that the person be released upon giving security by recognizance or otherwise either forthwith or after he or she has served a specified period of imprisonment for the offence(s). The "security" is set out in s 20(1)(a) and includes a standard condition that the offender will upon release be of good behaviour for such period (up to 5 years) as the court specifies. Putting to one side the operation of s 19AE, an RRO is only available if the federal sentence of imprisonment imposed or total effective sentence for multiple offences is less than three years: s 19AC(1)(b). Section 20(1) is relevantly in these terms: Conditional release of offenders after conviction (1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit: (a) by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions: (i) that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order; (ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences (if any), or pay such costs in respect of his or her prosecution for the offence or offences (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay): (A) on or before a date specified in the order; or (B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs--by specified instalments as provided in the order; (iii) that he or she will pay to the Commonwealth such pecuniary penalty (if any) as the court specifies in the order (being a penalty not exceeding the maximum amount of the penalty that, in accordance with sub section (5), the court may specify in respect of the offence or offences) on or before a date specified in the order or by specified instalments as provided in the order; (iv) that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or Example: A condition under subparagraph (iv) could be that the person will undertake a specified counselling, education or treatment program during a specified part of, or throughout, the specified period. (b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a): (i) if none of the offences is a Commonwealth child sex offence--either immediately or after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or (ii) if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances--after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or (iii) if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances--immediately.
2. The procedure for dealing with a breach of an RRO is governed by s 20A of the Crimes Act. Breach action is initiated by information laid before a magistrate. The magistrate may issue a summons directing the person to appear. The time limit for proceedings depends upon whether the breach is constituted by the commission of an offence. If a breach is not constituted by the commission of an offence, s 20A(1A) provides that the information must be laid before the end of the period for which the person is required by the order to give security to be of good behaviour. If the breach is constituted by the commission of an offence, proceedings may be commenced at any time: cf CDPP v Bozana Fabri [2008] NSWSC 655.
3. If the court that made the RRO is satisfied that the person has, without reasonable cause or excuse, failed to comply with the condition of the order, the options available to the court are set out in s 20A(5)(c) of the Crimes Act (Cth). Significantly, the court may revoke the order and deal with a person for the offence or offences in respect of which the order was made by ordering that the person be imprisoned for that part of each sentence of imprisonment fixed under s 20(1)(b) that the person had not served at the time of his or her release: s 20A(5)(c)(ii).
4. Section 20A(5)(c) is relevantly in these terms: (5) Where, in accordance with this section, a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), appears or is brought before the court by which the order was made, the court (whether or not constituted by the judge or magistrate who made the order), if it is satisfied that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, may: … (c) in the case of a person who has been released by an order made under paragraph 20(1)(b): (ia) impose on the person a monetary penalty of not more than $1000; or (ib) subject to subsection (5A), amend the order so as to extend the period for which the person is required to give security to be of good behaviour; or (ic) revoke the order and make an order under section 20AB; or (i) revoke the order and deal with the person for the offence or offences in respect of which the order was made by ordering that the person be imprisoned for that part of each sentence of imprisonment fixed under paragraph 20(1)(b) that the person had not served at the time of his or her release; or (ii) take no action.

RROs and s 6 of the CHRO Act

1. There have been three decisions of this court concerning the timing of the commencement of proceedings under the CHRO Act when an offender is serving an RRO, albeit in different statutory and factual contexts. One of those was decided before the decision in State of NSW v NW and the other was decided after it. I shall consider those three decisions in chronological order before turning to explain why I am satisfied that State of NSW v NW is wrong in one significant respect.

State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 ("State of NSW v TT")

1. In State of NSW v TT, Walton J considered whether a person on an RRO being served before the expiration of the head custodial sentence is a supervised offender. His Honour held that a defendant will be "serving" a sentence while the RRO is in operation, regardless of whether the offender is in the pre-release or post-release period (at [32], [40]).
2. Walton J also held that a defendant who had been sentenced to a period of imprisonment, had served a period of that sentence in custody, and then was released on an RRO was a "supervised offender" for the purpose of s 5I of the CHRO Act. His Honour explained the bases for this conclusion at [32]-[48at]. I propose to extract that reasoning in full as his Honour helpfully summarises a number of relevant decisions regarding RROs: "[32] There can be little doubt that the expression 'serving a sentence of imprisonment" in s 5I(2)(a) refers to the period in which the defendant is 'undertaking or going through a term of imprisonment fixed by a judgment, after conviction for an offence, as punishment for the same (see Kennedy v Spratt [1972] AC 83 at 88 (per Lord Diplock); R v Warfield (1995) 34 NSWLR 200 at 205-206 (per Hunt CJ at CL) and Winsor v Boaden (1953) 90 CLR 345 at 347 (per Dixon CJ). [33] It does not follow, however, that the defendant's release under a recognizance order at the time of the making of the application does not fall within the meaning of the expression 'serving a sentence for imprisonment' in s 5I(2)(a). [34] In R v Carngham (1978) 140 CLR 487 ('Carngham'), the High Court considered that the right to appeal existed under s 5D of the Criminal Appeal Act 1912 (NSW). The right to appeal was confined to a right to appeal against any sentence pronounced by this Court or the District Court, albeit that the word 'sentence' received an extended meaning by virtue of s 2 of that Act. The respondent was convicted, upon a plea of guilty, to a charge of importing prohibited imports contrary to s 233B of the Customs Act 1901 (Cth). He was sentenced to imprisonment for 2 years with an order for release after serving part of that term upon the respondent entering a recognizance to be of good behaviour for the balance of the term pursuant to s 20(1) of the Crimes Act 1914. The Court found the sentence so imposed fell within the meaning of s 5D Criminal Appeal Act. [35] It was in that context that Gibbs ACJ, with whom Stephen and Aickin JJ agreed, came to the conclusion that the sentence imposed under s 20(1) of the Crimes Act 1914 of imprisonment for 2 years coupled with an order for release on recognizance did constitute a sentence for the purposes of s 5D of the Criminal Appeal Act. His Honour's reasons in that respect (at 492-493) are instructive for the present matter and are extracted below: 'There can of course be no doubt that the sentence of imprisonment for two years which was imposed on the respondent in the present case was a sentence within the meaning of the Criminal Appeal Act. The question whether the order that the respondent be conditionally released after 10th October 1977 forms part of the sentence, or is collateral and distinct, although not easy of solution, permits only of brief discussion. In my opinion when a court acting under s. 20 (1) passes a sentence of imprisonment and orders the release of the convicted person after he has served a portion of that sentence it is not possible to sever the order for release and to treat it as something separate and distinct from the sentence of imprisonment. Such an order would be meaningless if it were not made in conjunction with the sentence of imprisonment to which it relates. On the other hand the sentence of imprisonment itself would have a materially different effect if it were not for the order for release. In these circumstances it seems to me that the order for release must be treated as a qualification of the sentence of imprisonment and that it is right to regard it as part of the sentence itself. Although there is some ambiguity in the concluding words of s. 20 (1), the phrase 'after he has served any portion of his sentence' in my opinion qualifies 'release', not 'order'. That is to say, the order must be made at the same time as the sentence is imposed, and not after portion of it has been served. From the moment when sentence is pronounced the convicted person is entitled to release after he has served portion of his sentence if he complies with the condition of the order. A sentence of two years' imprisonment simpliciter is quite different in its incidence and severity from a sentence of two years' imprisonment coupled with an order for conditional release after some months. The true nature of the sentence imposed can only be ascertained by looking at the order as a whole.' [36] Jacobs J gave a separate judgment agreeing with the orders proposed by the Acting Chief Justice. His reasons are also instructive (at 495) and appear below: ''Sentence' here must mean a prison sentence. It is envisaged that portion of the prison sentence may be served and service of the remainder of the prison sentence may be suspended upon security being given for good behaviour etc. The suspended prison sentence is a familiar concept. It is none the less 'an order on conviction with reference to the person convicted' within the meaning of s. 2 of the Criminal Appeal Act even though the person is not incarcerated. There is a sentence of imprisonment even though the sentence is suspended. The last clause of s. 20 (1) envisages a part-suspended sentence; but there is nevertheless a sentence in respect of a defined period and that is 'an order on conviction with reference to the person convicted'.' [37] It might also be noted that in the additional reasons, given by Aickin J, his Honour was concerned with whether the recognizance had served as part of the respondent's sentence or as a separate and independent order (at 501). [38] The judgment in Carngham offers clear support for the contentions of the plaintiff in this respect. It is true that their Honours were there considering the expression 'sentence' in a different legislative context. However, it is clear from the foregoing extracts from Gibbs ACJ and Jacobs J that their Honours understood the use of the word 'sentence' in that context to mean a sentence of imprisonment. It may also be noted that the provisions of s 20(1)(b) of the Crimes Act 1914 are in relevantly similar terms to the provisions of s 20(1) of that Act at the time of the judgment in Carngham (albeit that s 20(1) was a composite of the provisions of s 20(1)(a) and (b)). [39] Similarly, in Weetra v Beshara (1987) 46 SASR 484, the Supreme Court of South Australia considered, in the context of an appeal against penalty, a question reserved for the opinion of the Full Court, namely, whether an order for immediate release under s 20(1)(b) of the Crimes Act 1914 was part of a sentence of imprisonment, even though the sentence was not served. Prior J, within whom O'Loughlin J agreed, found (at 490): 'In this case a sentence of imprisonment has been passed, even if the 'true nature' is different from other sentences of imprisonment because of the order for release forthwith. It is a non-custodial sentence of imprisonment, perhaps, but it is still identified by the Commonwealth Parliament as a sentence of imprisonment, 'qualified' no doubt, and having 'a materially different effect', because of the order for release forthwith, from sentences of imprisonment fully carried into effect, or carried into effect for a period of time and then 'suspended' by an order for release.' [40] It follows that the expression 'a sentence of imprisonment' does incorporate circumstances where the defendant is released on a recognizance. I agree with the submission of counsel for the plaintiff that the word 'serving' used in s 5I(2)(a) is also consistent with that conclusion. In particular, I agree with the submission that, if 'serving' a sentence of imprisonment is given its ordinary and grammatical meaning of 'to go through' or 'work out', then the defendant 'is serving' a sentence while the recognizance release order is in operation regardless of whether it is the pre- or post-release period. [41] Furthermore, s 16F(2)(a) of the Crimes Act 1914 provides that a court is to explain the effect of a sentence where that court has made a recognizance release order, and is to explain the following: 'that service of the sentence will entail a period of imprisonment equal to the pre-release period (if any) specified in the order and a period of service in the community equal to the balance of the sentence...' [42] That explanation reflects the Commonwealth Parliament's understanding of the operation of s 20(1)(b) of the Crimes Act 1914 as being a relevant component of a sentence and it supports the conclusion that an offender being released under s 20(1)(b) is nevertheless 'serving' a sentence. [43] I accept the submission of the plaintiff that, upon proper construction of s 5I, the interpretation of s 5I(2) in relation to Commonwealth offences should not be read as limited by the operation of s 5I(3). As noted, that provision is intended to give an extended meaning to the expression serving a sentence of imprisonment. It does not purport to be a complete statement of what circumstances would constitute that expression or the wider expression 'supervision while serving a sentence of imprisonment' for the purposes of s 5I(2). This conclusion also follows when regard is had to the broader context of the Act. Section 5(2) of that Act expressly applies to offences against the laws of the Commonwealth and there are aspects of the sentencing regime enacted by the Commonwealth Parliament which would fall within the meaning of 'serving a sentence of imprisonment' without regard to s 5I(3). [44] That conclusion does not fully resolve the question as to the operation of s 5I(2) as it is necessary to determine whether, when the application for an order was made, the defendant was 'in custody or under supervision'. I will return to this concept in considering momentarily the operation of s 5I(3) but, for present purposes, in my view, the condition imposed by Hunt DCJ, that the defendant was to accept supervision as a condition of his release to recognizance is sufficient to qualify the defendant as, at the time of the application, 'under supervision' for the purposes of s 5I(2) and that this conclusion is consistent with the broad scope of supervision implicitly contemplated in s 5I(3). [45] The plaintiff correctly submitted that the expression 'under supervision' in 5I(2) is intended by the legislature to give a wider scope of operation to the provision than mere custody. Apart from the juxtaposition of the words custody and supervision in the subsection, reference may also be made to the use of the word custody in the case of applications for a continuing detention order in s 13B as being referrable to a 'detained offender'. [46] When the construction of the provision as approached in that way the expression 'under supervision' in s 5I(2) is wide enough to capture an offender who is on conditional liberty (as part of his/her sentence of imprisonment). This is consistent with the scheme of the Act requiring that applications may not be made until the 'last 9 months of the offender's current custody or supervision' (see s 6(1) of the Act) which for lengthy sentences could often mean that the application was made at a time when the offender was already released on parole. [47] This construction of the expression 'serving a sentence of imprisonment' or more broadly 'under supervision' while 'serving a sentence of imprisonment' is, in my view, also consistent with the objects of the Act in s 3 which make the primary object of the provision for, inter alia, the extended supervision of high risk sex offenders 'so as to ensure the safety and protection of the community'. Attributing a wider meaning to the expression is consistent with that purpose as it extends the operation of the Act to supervised offenders on any form of conditional liberty, particularly in the light of the additional Commonwealth offences brought into the definition of an offender and an offence of sexual nature in s 5(2)(h1)-(h5). [48] It follows that, notwithstanding the defendant's release from prison, that his status as an offender released on a recognizance under s 20(1)(b) of the Crimes Act 1914 in the sentence imposed by Hunt J must result in the conclusion that the defendant is a 'supervised offender' for the purpose of s 5I."

State of NSW v NW [2019] NSWSC 415

1. NW had been sentenced to a term of imprisonment of 2 years and 3 months to commence on 9 February 2017 and expire on 8 May 2019. It was directed that he be released at the expiration of 15 months of his sentence on 8 May 2018 upon entering an RRO for a period of 18 months in the sum of $500. That RRO was due to expire on 8 November 2019. Thus, the RRO expired six months later than the head sentence.
2. The summons seeking an ESO against NW was filed on 31 October 2018. NW took the preliminary point that the summons was filed beyond the period of nine months for which s 6(1) of the CHRO Act provides. That raised the question of whether the period of nine months referred to in s 6(1) of the CHRO Act is measured by reference to the expiration of the head sentence or the expiration of the RRO. His Honour approached this question as turning on whether NW remained a "supervised offender" only during the currency of his head sentence or whether he remained so during the six month period after the expiration of his head sentence and up until the expiration of the RRO.
3. His Honour was satisfied that an RRO is part of the term of imprisonment and extracted the passages from the decision of Gibbs ACJ in R v Carngham at 492-493 (see above at [29] in the extract in State of NSW v TT at [35]).
4. His Honour also accepted that an RRO may contain or impose conditions upon an offender that extend beyond the term of the head sentence, citing R v Smith [2004] QCA 417 and Johnsson v Regina [2007] NSWCCA 192.
5. In reliance upon those decisions and the relevant statutory provisions, his Honour was satisfied that NW was not a "supervised offender" from the time that his head sentence expired. His Honour, relevantly, observed the following at [24]: " … It seems clear that the defendant will on any view be a supervised offender in the period of three months prior to the expiration of his head sentence. Accordingly, when that sentence expires he will be at liberty in the community subject only to the then subsisting and enduring conditions of the recognizance release order but not vulnerable to the prospect of being returned to custody in order to serve out the balance of his sentence. Whether the defendant would also potentially be liable to imprisonment for breach of any of the enduring conditions is not to the point of his status after the expiration of his sentence. He will not, in my opinion, then be or remain a person who is still serving a sentence of imprisonment. The fact that the defendant may be under 'supervision' in the sense that he is subject to continuing conditions imposed as part of his recognizance release order does not mean that he is also therefore still serving a sentence of imprisonment. The authorities that explain that a recognizance release order equates to a sentence of imprisonment during the currency of the term of a sentence do not support the obverse proposition that any period by which a recognizance release order exceeds the term of the sentence of imprisonment is also a sentence of imprisonment." (Emphasis added)
6. His Honour went on to consider other decisions concerning the meaning of "a sentence of imprisonment" before concluding that NW would neither be in custody nor under supervision after the expiration of his head sentence on 8 May 2019. On that basis, his Honour was satisfied that the summons was filed within the last nine months of NW's current custody or supervision.
7. Finally, at [31] his Honour observed that reliance by the defendant on the decision of Walton J in State of NSW v TT is misplaced, going on to observe: "[Walton J's] decision correctly deals with the question of whether a person on a recognizance release order being served before the expiration of the head sentence is nonetheless a supervised offender, that is, in current custody or under supervision while serving a sentence of imprisonment. His conclusion that the person was a supervised offender in those circumstances is unexceptionable. His Honour's decision does not deal with the different question of whether a person on a continuing or enduring recognizance release order remains a supervised offender after the head sentence expires."

State of New South Wales v Vincent (Preliminary) (No 2) (2020) 101 NSWLR 961; [2020] NSWSC 590 ("State of NSW v Vincent")

1. The decision in State of NSW v Vincent was delivered after the decision in State of NSW v NW. In State of NSW v Vincent, Ierace J arrived at the same result as Walton J did in State of NSW v TT but in a slightly different statutory context. In that matter, Ierace J refused the State's application for a continued detention order ("CDO") on the basis that the defendant had greater than nine months of his sentence left to serve. The requirement for when an application is to be made for a CDO is found in s 13B(5) of the CHRO Act rather than s 6 and requires the application to be made not more than nine months before (as presently relevant) "the end of the offender's total sentence". It is accepted that this statutory language is different to s 6 which requires the application not to be made "until the last 9 months of the offender's current custody or supervision". There are also differences between s 5I and s 13B regarding the grant of power to make an order for a detained or supervised offender. Despite these slight differences between the statutory language for an ESO application and a CDO application, the court in State of NSW v Vincent was required to consider whether a defendant serving a term of imprisonment that was being served after he had entered into a s 20(1)(b) RRO was serving a sentence that precluded an application being brought at that time.
2. The question in State of NSW v Vincent was whether the offender, who was at the time the proceedings were commenced released on an RRO, was still serving a sentence of imprisonment as part of his "total sentence" and whether he was a "supervised offender". His Honour held that the RRO formed part of the "total sentence" and that the defendant was a "supervised offender" for the purposes of s 13B. Relevantly, his Honour noted the following at [52]: "… [there are] similarities between conditional liberty pursuant to a recognizance release order for a Commonwealth offence, and parole for a state or Commonwealth offence. When an offender is released to parole, the community is protected by the supervision of parole and the state's authority to exercise powers to remedy breaches of conditions of parole, including the power to return the offender to custody to serve the balance of parole. Release subject to a recognizance release order for a Commonwealth offence protects the community in a similar fashion. If an offender breaches a recognizance release order, the options before the court dealing with the breach include returning the offender to prison to serve 'that part of each sentence of imprisonment fixed under paragraph 20(1)(b) that the person had not served at the time of his or her release': s 20A(5)(c)(i) of the Crimes Act 1914."
3. His Honour went on to observe the following at [53]: "The legislative scheme is intended to supplement, rather than override, existing safeguards and mechanisms, in order to avoid the situation of an offender who had failed to qualify for parole by the time that the head sentence was to expire being released at all or without supervision, if they pose an immediate and significant threat to the safety of the community."

Consideration: Threshold jurisdictional issue

1. The question for determination is whether, as a matter of construction, Mr Cornwall was a person "under supervision" (as per ss 5I and 6 of the CHRO Act) and "serving a sentence of imprisonment" (as per s 5I of the CHRO Act) during that portion of his recognizance period that extended beyond the head sentence imposed by Judge Beckett. It was the common position of the parties that he was and that, accordingly, the summons in this matter was filed 19 days too early. Mr Cornwall's position was that the court would dismiss the State's summons with costs.
2. State of NSW v NW is authority for the proposition (at [24]) that if an offender is on an RRO that extends beyond the expiration of the head sentence he or she is "at liberty in the community subject only to the then subsisting and enduring conditions of the recognizance release order but not vulnerable to the prospect of being returned to custody in order to serve out the balance of his sentence". That statement is clearly contrary to the language of s 20A(5)(c)(i) of the Crimes Act (Cth) which provides that if, at a time when the offender is in the community subject to the RRO, he or she does not comply with a condition of the RRO he or she is liable to be returned to prison for the remaining period of imprisonment. Similarly, his Honour's observation at [30] that "the continued operation of the imposed conditions into this period after the expiration of the head sentence does not mean that a defendant subject to those conditions during that period is also serving a sentence of imprisonment" does not reflect the effect of 20A(5)(c)(i) of the Crimes Act (Cth).
3. Regrettably, it would appear that the parties in State of NSW v NW did not bring s 20A(5)(c)(i) of the Crimes Act (Cth) to the attention of Harrison J. Accordingly, the court proceeded on an erroneous assumption regarding the period for which the defendant was released on a recognizance. The fact is that an offender is still serving a sentence when they are on an RRO as they are at that time liable to be returned to prison for the remaining period of imprisonment should they breach a condition of the RRO. The RRO portion of a sentence passed under s 20(1)(b) is an essential part of the sentence of imprisonment because the offender remains in jeopardy of being returned to custody to serve the unserved portion of the sentence imposed. The fact that this period of imprisonment may be ordered to resume at any point until the expiration of the RRO is inconsistent with the sentence having expired.
4. I am satisfied that Mr Cornwall was "serving a sentence of imprisonment" while subject to his RRO. The second statutory requirement was that he was "under supervision" at that time for the purposes of ss 5I and 6 of the CHRO Act.
5. The State's position was that an offender "serving a sentence of imprisonment" while subject to an RRO will only be "under supervision" for the purposes of s 5I of the CHRO Act if a condition concerning supervision is in force as an aspect of the RRO (imposed pursuant to s 20(1)(a)(iv)). In Mr Cornwall's case, a condition concerning supervision was imposed for his RRO pursuant to s 20(1)(a)(iv) of the Crimes Act (Cth). That condition was in force until the expiration of the RRO. It was on that factual basis that the State conceded that the summons had been file too early.
6. While s 5I(2) requires an offender to be "under supervision… while serving a sentence of imprisonment", not all offenders released to an RRO will be subject to a condition concerning supervision. Further, some will have a condition of supervision imposed that does not remain in force for the full length of the RRO.
7. In Mr Cornwall's case, he was being supervised under his RRO by the ESO Team of Community Corrections. Thus, in practical terms, whilst under his RRO he clearly was under "current … supervision" for the purposes of s 5I of the CHRO Act. The fact that the head sentence had expired does not change the fact that he was an offender under supervision subject to an RRO under s 20(1)(b) of the Crimes Act (Cth).
8. On this basis, I am also satisfied that Mr Cornwall was a "supervised offender" for the purposes of s 5I of the CHRO Act until the date the RRO expires: 14 March 2023. This construction is consistent with the statutory language of ss 5I and 6 of the CHRO and the purpose of s 6, being for applications to be made when the offender is reaching the end of supervision (or custody).
9. I am satisfied that this interpretation avoids the possibility of a lacuna in supervision between the expiration of conditions imposed under s 20(1)(a)(iv) and the point at which orders may be made under the CHRO Act. It also aligns with the intention in the CHRO Act (having regard to the paramount importance to the community safety) that an order be made before the offender is in the community unsupervised.
10. Such a conclusion may be a departure from Walton J's observation in State of NSW v TT at [46] that the expression "under supervision" in s 5I(2) is wide enough to capture an offender who is on conditional liberty as part of his or her sentence of imprisonment. His Honour went on at [47] to observe that such a construction is consistent with the objects of the CHRO Act. His Honour then stated (also at [47]): "Attributing a wider meaning to the expression is consistent with that purpose as it extends the operation of the Act to supervised offenders on any form of conditional liberty, particularly in the light of the additional Commonwealth offences brought into the definition of an offender and an offence of sexual nature in s 5(2)(h1)-(h5)."
11. His Honour did not appear to draw any distinction between an offender on conditional liberty who had a supervision condition imposed and those that did not. It was submitted on behalf of both the State and Mr Cornwall in the present matter that to the extent that Walton J appeared to consider that any offender who is on "conditional liberty" while subject to a sentence of imprisonment is "under supervision" within the meaning of s 5I(2), then I would depart from that discrete aspect of his Honour's reasoning.
12. Given that Mr Cornwall was actually subject to a condition of supervision at the relevant time, it is not strictly necessary for me to make any determination as to whether a person who is subject to an RRO during the period that extends beyond the head sentence and is not subject to supervision is still caught by ss 5I and 6 of the CHRO Act. Despite this, I accept the State's submission that such a construction overlooks the importance of actual liability to supervision as the protective factor with which the CHRO Act is concerned. Having regard to the objects of the CHRO Act and the statutory language of ss 5I and 6, I am satisfied that conditional liberty without any form of supervision would not fall within the ordinary language or purpose of this aspect of s 5I(2).
13. For these reasons, I am satisfied that State of NSW v NW is wrongly decided and that an offender is "under supervision", (as per ss 5I and 6 of the CHRO Act), "serving a sentence of imprisonment" (as per s 51 of the CHRO Act) during that portion of an RRO that extends beyond the head sentence but only if they are in fact being supervised as a condition of that RRO.
14. On one view, such a construction may lead to arbitrary results; a person may be subjected to a condition of supervision but his or her supervisor may dispense with regular reporting if satisfied that it is no longer necessary. The uncertainty in this regard militates against this construction. Despite this, the words "under supervision" have to have work to do in the context of the objects of the CHRO Act.
15. Finally, in discharging its duty to assist the court, the State advanced three alternate arguments to its primary position. Although there is strictly no reason to consider them (given I am satisfied of the principle argument), I shall refer to them briefly for completeness.
16. First, the State submitted that the court could conclude that State of NSW v NW was correctly decided. It was submitted that there is textual support for this interpretation in s 16F(2)(a) of the Crimes Act (Cth), which refers to a period of service in the community equal to the balance of the sentence, not a period that is equal to the length of the term of the RRO. This was a factor Harrison J had regard to in State of NSW v NW at [30]. Similarly, s 19AF of the Crimes Act (Cth) requires that the pre-release period for an RRO must end "not later than the end of the sentence". The State submitted that a purposive consideration in favour of this interpretation is the reduced possibility for uncertainty created by the potential for variation, revocation, or extension of an RRO and the inadvertent consequences this may have for jurisdiction under the CHRO Act.
17. I accept the State submission that there is an artificiality in distinguishing between the period of supervision after the date on which the sentence would have elapsed had the offender remained in full-time custody and that before that date given that the offender remains potentially liable to incarceration for any unserved portion of the sentence until the RRO expires. There is also the practical difficulty that if an offender was sentenced to the maximum period of supervision of two years under s 20(1)(b), an application may need to be made well in advance of any prospect that the offender would be unsupervised in the community. That would be contrary to the clear intention of s 6(1) of the CHRO Act that applications be determined reasonably close to the point where the offender would cease to be in custody or supervision, so the court has the benefit of current information. I do not favour this construction.
18. The second alternate construction advanced by the State was that the court could conclude that an offender is "under supervision … while serving a sentence of imprisonment" for the entire duration of an RRO irrespective of whether a condition concerning supervision has been imposed under s 20(1)(a)(iv). Such a construction would be consistent with the observations of Walton J at [46] in State of NSW v TT that "under supervision" encompassed a period where an offender is not, in fact, subject to any form of active supervision. I do not accept that construction as it has the potential to create a lacuna between the end of a supervision condition of an RRO or custody and the ability of the State to apply for orders under the CHRO Act. This is contrary to the paramount importance of community safety in the CHRO Act.
19. Thirdly, the State submitted that the court could conclude that both State of NSW v TT and State of NSW v NW are incorrect, and that an offender released on an RRO under s 20 is not "under supervision … while serving a sentence of imprisonment" for the purposes of s 5I(2). The State contended the court should not take this course and that Walton J's reasoning in State of NSW v TT is correct.
20. I am satisfied that the approach in State of NSW v TT and State of NSW v Vincent is consistent with the primary object under s 3(1) of the CHRO Act, being to ensure the supervision of high risk sex and violent offenders to ensure the safety and protection of the community. As stated above, to the extent that Walton J found in State of NSW v TT at [46]-[47] that an offender is "under supervision" for the purposes of ss 5I and 6 of the CHRO Act by virtue of simply being on conditional liberty, I prefer the construction that the offender must actually be under supervision in order to come with the statutory language of ss 5I and 6 of the CHRO Act for the reasons stated above.
21. It was for these reasons that I made orders 1 to 5 (see below at [148]) on 6 March 2023.

The preliminary hearing

1. As stated above, on 6 March 2023 I also made orders appointing experts and placing Mr Cornwall on an ISO for 28 days. These are my reasons for doing so.
2. By way of overview of his early years, Mr Cornwall was born on 13 May 1955. He had an unstable family life. When he was between 7 and 10 years of age, he was sexually abused by a male family friend. Mr Cornwall left home on a number of occasions when he was 14 or 15 years old. At the age of 16, he lived on the streets. Between the ages of 10 and 20, Mr Cornwall began to exhibit voyeuristic, exhibitionist and fetishist behaviour, including exposing himself to female strangers and masturbating afterwards, which he reported occurred on "at least 200 occasions", and looking through people's windows and then masturbating.
3. His criminal history began in 1972 when he was a juvenile. He was dealt with for theft and motor vehicle offences. As an adult in his 20s and early 30s, he was convicted of further driving offences, some of which were serious enough to result in sentences of imprisonment.
4. He was married to a woman he met when he was 18. They married when he was 21 and they had two children together (now aged 52 and 50), but he left her for another woman when he was 25. He was with that woman for about three years, and they had a child as well, now aged in his 40s. He has no contact with his children. He has had no other significant relationships since that time.
5. Mr Cornwall reports being employed from the time he left school until his first period of incarceration. That employment included as a machinist. He has not worked for some time and expresses no interest in any employment, voluntary or paid

Court chronology

1. In 1993, Mr Cornwall was sentenced to 14 years' imprisonment with a minimum term of 10 years for serious sexual offences, the facts of which are set out below at [92]-[100]. He served those 14 years in custody.
2. By an amended summons filed on 5 July 2007, the Attorney General of New South Wales sought a CDO for a period of 5 years in respect of Mr Cornwall, pursuant to the predecessor to the CHRO Act.
3. On 28 September 2007, Hall J made an order for a CDO for a period of 8 months: Attorney General for the State of New South Wales v Cornwall [2007] NSWSC 1082.
4. As stated above, Mr Cornwall appealed that order to the Court of Appeal, which set aside the CDO and imposed an ESO for a period of five years from 19 December 2007: Cornwall v Attorney General for New South Wales [2007] NSWCA 374.
5. Only two days later, on 21 December 2007, Mr Cornwall was charged with failing to comply with his ESO by breaching the condition that he be subject to electronic monitoring of his whereabouts. On the day of his release from custody, he removed an electronic bracelet that he wore pursuant to that condition and left his place of residence. He was sighted by an off-duty police officer on a beach. When approached by police, he ran off. He was pursued and arrested, telling police that he had removed the bracelet because he was upset and depressed by his place of residence in the community, which he regarded as similar to being held in prison.
6. On 15 January 2008, Mr Cornwall was sentenced to a term of imprisonment of 15 months, backdated to commence on 21 December 2007 and expire on 20 March 2009, with a non parole period of 9 months that would expire on 20 September 2008.
7. Mr Cornwall was released on 20 March 2009.
8. On 24 September 2009, Mr Cornwall was charged with three counts of failing to comply with his ESO: he had gone to an unapproved location, consumed alcohol and failed to comply with a reasonable direction by his Departmental Supervising Officer ("DSO"). These breaches can be categorised as an attempted suicide by Mr Cornwall. He had climbed over a barbed wire fence into a neighbouring property where he telephoned a support worker and informed him that he was in possession of a bottle of scotch whisky and had a noose around his neck.
9. When police located Mr Cornwall, he was in a tree and had consumed nearly 750ml of whiskey. He attempted to hang himself and was resuscitated by police. He was taken to hospital where he was found to have a blood alcohol content of 0.3358g of alcohol per 100ml of blood. Later inquiries revealed he had not been taking medication for a diagnosis of a depressive mood state, in breach of a condition of his ESO.
10. On 2 October 2009, Mr Cornwall was sentenced for these breaches to imprisonment for a period of 20 months, commencing on 24 September 2009 with a non parole period of 15 months, expiring on 23 December 2010.
11. On 24 November 2010, while still in custody, Mr Cornwall was charged with historical sexual offences following a DNA match.
12. The facts were strikingly similar to the other offences. The victim was walking one morning from her home in Pottsville via a bush track to the beach, when she was attacked by a naked Mr Cornwall. She was wearing a swimsuit, which he forcibly removed and used to blindfold her. She was repeatedly sexually assaulted which involved attempted fellatio, Mr Cornwall licking her vagina and penile vaginal intercourse.
13. Mr Cornwall pleaded guilty and was sentenced on 14 December 2011 at Lismore District Court by Black DCJ (including for two further offences on a Form 1, being attempted sexual assault without consent and assault with an act of indecency) to a total sentence of 4 years and 6 months imprisonment, backdated to commence on 14 December 2010 and expire on 13 June 2015, with a non parole period of 3 years and 4 months.
14. By summons filed on 5 June 2015, the State sought an interim detention order ("IDO") on the expiration of his sentence and a CDO by way of final orders. Beech-Jones J (as his Honour then was) refused the application for an IDO but made other orders sought for the preparation of forensic reports for a final hearing: The State of New South Wales v Cornwall [2015] NSWSC 742.
15. Mr Cornwall's mental health had deteriorated in custody and by the time of that preliminary hearing, he was an involuntary patient pursuant to the provisions of the Mental Health Act 2007 (NSW) and the Mental Health (Forensic Provisions) Act 1990 (NSW). He was subject to periodic review by the Mental Health Review Tribunal ("the MHRT"). The reasons of Beech-Jones J disclose that his Honour did not impose an IDO because Mr Cornwall would be an involuntary patient in any event, rendering an IDO unnecessary to protect the community until the final hearing. No final orders were ever sought by the State.
16. When his sentence expired, Mr Cornwall continued to be detained as an involuntary patient until 10 July 2015 at which time he was released into accommodation in the community. He continued to be the subject of his ESO which had been suspended during his periods in custody.
17. On 15 April 2019, Mr Cornwall was arrested and charged with further sexual offences whilst subject to a previous ESO. He had attended a weekly meeting with his DSO. Police attended the meeting as well and requested his smartphone. It was a condition of his ESO that he hand over his telephone when requested to do so. He was initially reluctant to hand it over. He eventually did and then fled. An examination of his mobile telephone depicted footage he had taken of himself masturbating to female passengers on the train. In addition to running away, he failed to reside at his accommodation, failed to attend his weekly meeting and was not located for eight days. An aggregate sentence of 2 years imprisonment was imposed for these breaches, to commence on 15 October 2019, with a non parole period of 18 months.
18. Significantly, in addition to the footage Mr Cornwall took of himself masturbating on the train, police also located 112 images of child abuse material. Nineteen of these images depicted prepubescent children involved in a sex act or witnessing a sex act where the image was focused on the child's anal or genital regions.
19. Mr Cornwall was charged with accessing child abuse material using a carriage service and on 7 August 2020 was sentenced to the RRO by Judge Beckett in terms discussed in detail above.
20. Having regard to the periods it was suspended when Mr Cornwall was in custody, the original ESO expired on 1 June 2022.
21. Once the ESO expired Mr Cornwall was required to report to police as part of his obligations arising from being on the Child Protection Register, as required by s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW).
22. Mr Cornwall was subject to the conditions of the RRO from his release on 14 March 2022 and did remain so until its expiration on 14 March 2023. Those conditions include extensive directions made by the Community Corrections Service that were acknowledged by Mr Cornwall by his signature on 3 June 2022.
23. On 5 September 2022, an application was made for an interim CPPO pursuant to the CPOPO Act. On 23 September 2022, an interim CPPO was made. These orders significantly constrained Mr Cornwall's contact and communication with persons under the age of 18 years.
24. Mr Cornwall is also currently on bail in relation to a breach of the interim CPPO. On 19 December 2022, he was charged with three offences under s 13(1) of the CPOPO Act. Mr Cornwall is alleged to have: 1. Breached condition 6 of the interim CPPO by loitering in Memorial Park on 10, 11, 12, 13, 14 and 15 December 2022 at times when children were using the park as a thoroughfare to nearby schools and day care centres; 2. Breached condition 5 of the interim CPPO by having contact with another registrable person, Mikaele Wulf, who resides in the same unit complex as Mr Cornwall; and 3. Breached condition 10(b) by watching two videos, one of a nine-year-old performing on Britain's Got Talent and one entitled "OMG ???? 2022 Most Beautiful Female Athletics Long Jump - Pole Vault, Highlights ?? Incredible Moments" which included footage of athletes under the age of 18.

Section 9(3)(h): Criminal history

1. The court is required to have regard to the defendant's "criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history".
2. I have already set out Mr Cornwall's criminal history above. The details of the index offences can be summarised as follows.

The index offences

1. Mr Cornwall was 36 when he commenced committing serious sexual offences. On 17 September 1993, he pleaded guilty to six sexual offences and an offence of larceny, which were committed between 13 June 1991 and 1 July 1993. Counts 1, 3, 4 and 6 were counts of sexual intercourse without consent and in circumstances of aggravation contrary to s 61J of the Crimes Act 1900 (NSW). Count 5 alleged that the defendant was armed with a knife with intent to commit an indictable offence, namely, to have sexual intercourse with a 15 year old girl. Count 7 alleged that he had sexual intercourse without consent, contrary to s 61I of the Crimes Act. Count 2 was larceny. The defendant entered a plea of guilty in respect of each offence.
2. As Ierace J noted, agreed facts were tendered at the sentence hearing. I have taken the following summary from his Honour's reasons at [3]-[10].
3. In relation to the first victim, on 13 June 1991 at around 8 am, Mr Cornwall grabbed a 26 year old woman as he passed her on a footbridge over the Georges River. He held a knife to her throat, forced her into nearby bushland, forced her to undress to a point of nudity, blindfolded her, forced her to masturbate and fellate him, had penile vaginal intercourse with her and threatened to kill her if she complained to the authorities (count 1). He also stole her handbag and $64 in cash, which was the basis of count 2.
4. The second and third victims were two girls aged 14. They were walking together in the grounds of the University of Western Sydney on a Sunday at noon. Mr Cornwall grabbed one of them and held a knife to her throat, threatening to kill her if the other girl did not do as he instructed. He took them to nearby bushland, forced them to undress to a point of nudity and engage in sexual acts with each other. He then digitally penetrated the vagina of one girl, performed cunnilingus on both girls and forced them to fellate him (counts 3 and 4).
5. The fourth victim was a 15 year old girl who was in the grounds of the University of Western Sydney on a Sunday afternoon with a friend. Mr Cornwall approached them and, when they ran away, chased them. He grabbed the victim's arm while he held a knife, which he pointed towards her. She broke free and was able to escape (count 5).
6. The fifth victim was attacked about five weeks later. She was only 13 years old. On a weekday at about 8:00 am, Mr Cornwall hid and attacked her as she passed him on her way to school. He forced her at knifepoint to a secluded area, instructed her to take off all her clothes and sexually assaulted her in various ways, including by digital penetration of her vagina and forcing her to masturbate and fellate him (count 6).
7. The sixth victim was an 18 year old woman who was pushing her bicycle along a secluded track. Mr Cornwall chased her down, pulled her into grassland and, on threat of strangling her, forced her to undress. He placed his penis in her mouth and forced her to masturbate him.
8. Mr Cornwall was sentenced on 6 December 1993 by Viney QC DCJ. He received an overall sentence of imprisonment for 14 years with a minimum term of 10 years backdated to commence on 8 July 1993 and expire on 7 July 2007. It goes without saying that he would have received a significantly higher sentence if he was to be sentenced today.
9. Mr Cornwall served the 14 year sentence in custody as he was refused parole.

Mental health

1. Mr Cornwall has been identified as suffering from a personality disorder and has been assessed as meeting the diagnostic criteria for paraphilia. He has a "long history of mood disturbance, chronic suicidality and treatment for depressed mood". He was first identified as suffering from a "serious personality disorder" in November 1993. As stated above, he attempted to take his own life in 2009. In late 2011, while still in custody, he was admitted to the Acute Crisis Management Unit ("ACMU"). In April 2015, his mental health deteriorated again as observed by Beech-Jones J in The State of New South Wales v Cornwall [2015] NSWSC 742.
2. Mr Cornwall's mental health deteriorated again after he was charged with further offences in late 2019. The defendant went on hunger strike and expressed suicidal ideation. He was non-compliant with prescribed medication and declined contact with psychology services.
3. An OIMS note of 15 March 2022 records that Mr Cornwall had stopped taking anti-depressants because he "felt he didn't need them".
4. On 14 February 2023, a home visit was conducted with Mr Cornwall and a noose was located fixed to the ceiling. Mr Cornwall was scheduled under the Mental Health Act and admitted to Liverpool Hospital. By the time of the hearing on 6 March 2023, he had been released from hospital.

Section 9(3)(h1)

1. The court is required to have regard to the "the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender".
2. The sentencing judge described the index offences as "very serious". His Honour observed that "[a]ll of the victims suffered undoubted terror, as well as the trauma of the physical attack." He went on to say that victim impact statements had been tendered and that "they show that each of the victims suffered ongoing distress. In most cases that has not resolved as yet, and it seems fair to say that in the case of all the victims there will be continuing after effects for a considerable period." The sentencing judge continued: "To begin with, the objective seriousness of this serious of charges, both individually and cumulatively, dictates that a lengthy goal term must be imposed. Accepting, as I do, his remorse and contrition, and the benefit he must receive on penalty for his pleas of guilty and co-operation, there are still the objective factors - the serious attacks on these girls and women; that each episode was a separate incident, separated in time by months one from another, and there was no apparent effort on the part of the prisoner to modify his conduct or do anything about it, even though he must have realized in between the offences the seriousness of what he had been doing."

Section 9(3)(c): Expert reports other than court-appointed experts

1. The court is required to have regard to "the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment".
2. A significant number of experts have examined Mr Cornwall over the years. I consider it sufficient to focus on the Risk Assessment Report ("RAR") prepared by Holly Cieplucha ("the RAR author") on 14 March 2022. That report was obtained for the purposes of making this application. In it, she refers to earlier reports, earlier testing, and file information as Mr Cornwall declined to be interviewed. The RAR author notes that an offender's acknowledgement of risk and the identification of relevant risk factors can be a protective factor. It was noted that Mr Cornwall refused to discuss the nature or motivation behind his recent offences, although he told Dr Furst that he had felt depressed and suicidal around the time of his index sexual offences. At [41], the RAR author notes: "Mr Cornwall has made admissions of guilt with respect to his prior sexual offences, however has consistently denied certain aspects of his offending, minimising the level of harm perpetrated against the victims and the nature of the sexual assaults. He appears to have maintained his stance that he was unaware of the specific details of the offences he pled guilty to. He admitted to feeling depressed and angry at the world and had withdrawn from most forms of social contact in the three years preceding his arrest. As reported by Mr Rendell, Mr Cornwall claimed the commission of these offences was in part due to his feelings of sexual frustration, acknowledging that he hadn't engaged in his night-time sexually deviant activities for a significant period of time due to his self-imposed social withdrawal 'because I wasn't going out flashing…I became (sexually) frustrated as 'flashing'... was a good (sexual) release'."
3. It was noted that Mr Cornwall has no family support. He said it was because he feels "too much shame". The RAR author described Mr Cornwall's history of sexual violence as "chronic and diverse", opining that he has "a long-standing pattern of engaging in deviant sexual behaviours from as early as the age of ten." The RAR author goes on to make the following observations at [78]: "Mr Cornwall has been described as an individual with a limited repertoire of coping skills and has historically relied on a range of maladaptive and avoidance- based strategies (e.g. alcohol, suicide, isolation, withdrawal) to cope. Whilst he has denied any recent use of sexualised behaviours to cope, Mr Cornwall has previously acknowledged using deviant sexual behaviours to manage negative emotional states, to gain a sense of self-control and as an attempt to establish an emotional connection with others. Given his most recent sexual offences were committed shortly prior to the expiration of his current ESO and appear to have occurred in the context of him experiencing depressed mood with suicidal ideation, his sexual offences may be reflective of his attempt to cope with impending change and withdrawal of supports. It is hypothesised that he was experiencing a heightened state of stress as he neared the end of his Order which precipitated his deviant sexual behaviours. It remains unclear whether Mr Cornwall is able to recognise factors that placed him at risk in the moment given he did not communicate his distress to any of his supports at the time or whether he continues to feel unable to ask for help. Whilst his capacity to manage negative emotional states has been enhanced through engagement with FPS, it appears that Mr Cornwall remains prone to emotional collapse and is unable to implement effective coping strategies when needed."
4. The RAR author identifies risk factors as including his problems with intimate and non-intimate relationships and general social rejection. Accordingly, it was noted that "he will require ongoing support and encouragement to develop and utilize a non-professional support network to reduce his isolation and develop a sense of connection with others". She observed that "the initial period following transition to the community and the period preceding cessation of the Order present periods of heightened risk". For specific risk factors she opined at [83]: "Mr Cornwall's history of sexual offending is chronic and diverse with an early onset. He has escalated from non-contact offences (e.g. voyeurism, exhibitionism, fetishism) to serious contact sexual offences involving the use of a weapon. His earlier offences occurred in the context of depressed mood and social isolation and were driven by sexual self-regulation deficits. It is considered likely that he was experiencing similar circumstances preceding the index offences. His most recent offending is consistent with ongoing sexual deviance and it is therefore considered probable that his underlying paraphilic urges and behaviours have continued unabated (and undetected) over more recent years."
5. The RAR author noted that Mr Cornwall would be "most likely to sexually reoffend if he returns to a similar way of living, with social isolation, a collapse in social supports, poor coping and issues with sexual self-regulation increasing his risk". If he were to commit further contact sexual offending, it would likely be opportunistic, involve threats or a degree of physical coercion and may involve the use of a weapon, namely a knife. It is likely that offences would occur in an isolated area during the daytime. Victims would most likely be post-pubescent adolescent or vulnerable females and the likely motivation for his behaviour would be for sexual gratification.
6. It was suggested that, based on his more recent sexual offending and considering his age (66) and the length of time in which he has been effectively "offence-free" (26 years), he may be more likely to engage in further non-contact sexual offences, similar to his earlier patterns of deviant sexual behaviour (ie voyeurism, exhibitionism, fetishism) where victims would be unknown strangers whom he encounters opportunistically. As hypothesised by the RAR author, this may signal the commencement of a new offence cycle, with a potential for escalation.
7. As for his level of overall risk, the RAR author considers that Mr Cornwall falls into the "Above Average" range for sexual offending relative to other adult male sexual offenders. She opines that although Mr Cornwall's serious contact sexual offences occurred over 29 years ago, he continues to demonstrate difficulty with sexual self-regulation and ongoing sexual deviance. As such, it is possible that a future sexual offence could approach the threshold of a "serious sexual offence" as defined in CHRO Act. Finally, the RAR author expresses the concern that "[w]ithout the professional supports available to him whilst on an ESO, it is anticipated that he may regress to his former maladaptive coping mechanisms, which may involve further sexual offending." She considers that "[w]hilst Mr Cornwall has demonstrated the ability to live in the community for a period of time offence free, his destabilisation at the end of his Extended Supervision Order, and subsequent sexual offending, seemingly without warning, is cause for concern."

Section 9(3)(d): Statistical assessments

1. The court is required to have regard to "the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence".
2. The relevant tests for quantifying Mr Cornwall's risk of committing a future violent offence include the Level of Service Inventory-Revised ("LSI-R"), Violence Risk Scale ("VRS"), the Violence Risk Appraisal Guide - Revised ("VRAG-R") and the Domestic Violence Risk Appraisal Guide ("DVRAG").
3. The RAR author notes that in July 2020 she assessed Mr Cornwall using the LSI-R actuarial risk instrument as falling within the medium/high range of risk/needs for general and violent offending. The RAR author also assessed Mr Cornwall using the STABLE-2007 tool. His total score was 11, indicating above average risk level, although the author indicated that "in the absence of an interview this may again be an underestimate of his risk." The RAR author also used the Risk of Sexual Protocol structured professional judgment tool. This indicated that Mr Cornwall fell in the moderate risk category for repeat sexual violence.
4. The RAR author assessed Mr Cornwall using the STATIC-99R actuarial tool. Mr Cornwall's total score was 5, indicating above average risk. This risk was consistent with previous assessments on the STATIC-99R tool, which have ranged from 3 to 5.

Section 9(3)(d1): Risk Management Report

1. The court is required to have regard to "any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community". To meet this statutory requirement a Risk Management Report ("RMR") was prepared by Jason Saad on 31 March 2022 detailing various programs that Mr Cornwall could undertake in the community. The RAR identified the following risk factors: sexual violence history (chronicity, diversity, escalation and physical coercion in sexual violence); deviant sexual preference; problems with stress or coping, use of sex to cope and problems with self awareness; major mental illness and suicidal ideation; problems with intimate and non-intimate relationships and general social rejection; and compliance with supervision, problems with planning and problem solving.
2. To meet these risks, the RMR recommends the following conditions to support the risk management plan: electronic monitoring; a weekly schedule of movements and curfew; conditions relating to accommodation; a prohibition on guests at his residence; a requirement that Mr Cornwall remain in NSW; conditions pertaining to employment and education; a prohibition on the use of alcohol and illicit substances; drug testing; a prohibition on association with others, especially those under the age of 18; conditions relating to communication devices and internet usage; a search and seizure condition; a condition enabling Community Corrections to direct Mr Cornwall to engage with psychological intervention and to ensure he is adhering to prescribed medication.

Section 9(3)(e): Participation in rehabilitation programs

1. The court is required to have regard to "any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs."
2. In December 2008, Mr Cornwall completed the Custody-Based Intensive Treatment program ("CUBIT") (now the High Intensity Sex Offenders Program ("HISOP")). The treatment report described Mr Cornwall's engagement with the program as "consistently positive" and identifies that he was "motivated and willing to address his offending behaviour". The report identified that Mr Cornwall "has made progress understanding his unhelpful behaviour pattern in treatment and will need to continue to attend to these issues in the future". It identified that "due to Mr Cornwall's feelings of shame and guilt he will require regular positive feedback and support in managing self-loathing behaviours. This will be crucial during situations where he experiences emotional distress however when he is feeling confident and respected, he is better able to demonstrate self-awareness of his thoughts, feelings and behaviours."
3. The RAR author noted that Mr Cornwall completed HISOP (then CUBIT) in 2008 and had also previously participated in the Sex Offender Psycho-Education program ("SOPE") in 1997 and 2000, and the Sex Offender Preparatory Program ("PREP") in 2008. He completed three custody-based maintenance sessions in 2009 after completing CUBIT. The author notes that it is unknown whether Mr Cornwall will participate in any further Forensic Psychology Services upon his release.

Section 9(3)(f): Past compliance with obligations

1. The court is required to have regard to "the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order".
2. The RAR author quotes from the following passage from the 2020 RAR in relation to Mr Cornwall's previous period of supervision: "With the exception of this early breach behaviour and his recent arrest, CSNSW case notes suggest that Mr Cornwall's response to supervision was generally positive. Supervising staff monitored Mr Cornwall in relation to the stability of his mood based on his history of depression and suicidal tendencies and, up until his return to custody in October 2019, there were no indications that he was a risk to himself. Mr Cornwall demonstrated a largely co-operative approach to his supervision obligations. He was compliant with the conditions of his Order and, with the exception of one verbal warning (26/05/19) for entering a primary school on the day of an election, he had not been subject to any other formal breach action, incurred any charges or received any adverse Police attention until his arrest. During the course of his supervision, Mr Cornwall engaged well with the Community Corrections team. It is noted however, that whilst not being obstructive, supervising staff described Mr Cornwall as being guarded and challenging to engage with at times and they acknowledged some difficulty in undertaking Practice Guide Interventions (PGI's) with him due to him having 'little to say' (case note 20/02/18). Towards the end of his order, he appeared closed off and unwilling to discuss the future or consider the possibility of his ESO ending (case note 26/07/19)."
3. In relation to compliance, the RAR author identifies that the breaches in 2007 and 2009 occurred "in the context of being overwhelmed". In addition, the author agrees with the suggestion in the 2020 RAR that an element of self-sabotage may have been involved in the more recent Commonwealth offending.

Section 9(3)(e1): Available community programs on ESO

1. The court is required to have regard to "options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time.
2. Although no such programs were advanced, it is to be accepted that Mr Cornwall has been required to see a number of professionals including a psychologist whilst under supervision in the community.

Section 9(3)(e2): Likelihood of complying with an ESO

1. The court is required to have regard to "the likelihood that the offender will comply with the obligations of an extended supervision order".
2. Mr Cornwall's history concerning supervision is chequered. He was charged with two breaches of his previous ESO (as discussed above) prior to the Commonwealth offending, which occurred while he was the subject of his previous ESO. In addition, he previously breached the conditions of his recognizance bond, and is presently charged with breaching the interim CPPO.
3. The evidence demonstrates that Mr Cornwall progressed well under supervision during the period of 2015 to 2019. More recently, between his release in March 2022 and August 2022, Mr Cornwall demonstrated positive changes in his behaviour, ability to manage stress and a willingness to engage with supervision and mental health services. Despite positive progress, there were incidents where Mr Cornwall exhibited agitation, suicidal ideation or a reluctance to engage with those involved in his supervision. These periods appear to have correlated with external stressors.
4. On 29 August 2022, a psychologist noted that increased monitoring was required as he was living independently, despite his positive progress. During a visit to Mr Cornwall's home on 15 September 2022, notes record that he was animated but was difficult to engage with and answered questions about his movements and actions with short responses.

Consideration: Preliminary orders made

1. Section 7(3)-(5) of the CHRO Act sets out the requirement for a preliminary hearing of an ESO application and is in these terms: (3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) registered psychologists, or (iii) qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application.
2. At a preliminary hearing, the court is required to determine whether the matters in the supporting documentation would, if proved, justify the making of an ESO. If the court is so satisfied orders would be made that expert reports be prepared and an ISO made under s 10A of the CHRO Act. The relevant test for the making of an ESO is in s 5B which I have set out above at [13].
3. The first statutory requirement for the making of an ESO is that the offender is a serious sexual offender as required by ss 5 and 5B of the CHRO Act. Mr Cornwall accepted that he was given his index offences and I am so satisfied.
4. The second statutory requirement for the making of an ESO is that Mr Cornwall is a supervised offender (within the meaning of s 5I of the CHRO Act). Given the conditions of his RRO, I am satisfied of this as well.
5. The third statutory requirement for the making of an ESO is that Mr Cornwall was under supervision at the time the application was made, and that the application was commenced within time as required by s 6 of the CHRO Act. I have already addressed this requirement in some detail. I am satisfied that the application has been brought in the last 9 months of his sentence.
6. The fourth and final statutory requirement is that the court is satisfied to a high degree of probability that Mr Cornwall poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d). Mr Cornwall also accepted that this statutory test was met but it remains a matter for the court to be satisfied of, nonetheless. The phrase "unacceptable risk" is not defined in the CHRO Act, although s 5D provides: For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
7. It has been held that the phrase "unacceptable risk" in the CHRO Act should be given its everyday meaning within its context and having regard to the objects of the CHRO Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Beazley P at [58], with whom Gleeson JA agreed). The test is an evaluative one and requires the exercise of discretionary judgment: Lynn at [82] (Basten JA).
8. In State of New South Wales v Pacey (Final) [2015] NSWSC 1983, Harrison J observed (at [43]): "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable."
9. These observations were echoed by Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 (at [71]), where her Honour observed that "[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate." Similar observations were made by Campbell J in State of New South Wales v Holschier (No 3) [2019] NSWSC 341 at [53]-[57].
10. In determining the present application, "the safety of the community must be the paramount consideration" of the court and regard must be had to the matters enumerated in s 9(3) "in addition to any other matter it considers relevant." I have had regard to all these factors, which I have summarised above.
11. All of the previous assessments of Mr Cornwall support the imposition of an ESO as do the statistical risk assessments. There appears to be an ongoing correlation between Mr Cornwall's inadequate coping strategies and social isolation and his risk of committing further sexual offence. Regrettably, he has no family support or other support in the community. On the positive side, the Supplementary RAR and recent OIMS notes record that Mr Cornwall has made some therapeutic progress, including in dealing with stressors.
12. Mr Cornwall has expressed a willingness to engage with psychological treatment in the community, but there is a real concern that he will not engage with that treatment unless he is supported or directed to do so. I am satisfied that Mr Cornwall would not be able to reintegrate into the community without professional support. A further ESO would allow Mr Cornwall to have access to professional services to promote management of his paraphilias. The evidence shows that in the event a further ESO is not made, Mr Cornwall does not have professional or personal supports in the community. I have also had regard to Mr Cornwall's recent hospital admission under the Mental Health Act.
13. Mr Cornwall has an inconsistent history of compliance with obligations while under supervision. On the one hand, there have been periods of compliance and even progress. But on the other hand, there have been three occasions where Mr Cornwall breached his obligations under his ESO. He has also had periods of mental health crises.
14. In considering the supporting material, I have had regard to the fact that Mr Cornwall has not committed a hands on/contact sexual offence in over 25 years and he is now 64 years old. Despite this, the supporting documentation which includes other assessments going back many years, if proved, satisfies me at this preliminary stage that Mr Cornwall poses an unacceptable risk of committing a serious sex offence if he is not the subject of supervision under an ESO.
15. The conclusion I have reached is consistent with the views previously reached by this court.
16. It was the common position of the parties that I would impose the same conditions on the ISO as those imposed by Ierace J.

ORDERS

1. In consideration of the above, I made the following orders on 6 March 2023: 1. The summons filed by the plaintiff on 26 May 2022 is dismissed. 2. The plaintiff is to pay the defendant's costs in the dismissed proceedings. 3. The plaintiff is granted leave to file the summons dated 6 March 2023 in court. 4. The plaintiff is granted leave to file the notice of motion dated 6 March 2023 and affidavit of Ellen Southwood affirmed 6 March 2023 in court. 5. The interim supervision order made by Ierace J on 13 January 2023, and renewed by Yehia J with effect from 10 February 2023, is revoked. 6. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"), the defendant is to be subject to an interim supervision order for a period of 28 days to commence on 6 March 2023 and expire on 2 April 2023 and is, for the duration of that order, to comply with the condition set out in the Schedule to these orders. 7. Pursuant to s 7(4) of the Act: 1. Dr Jeremy O'Dea and Dr Carollyne Youssef are, respectively, appointed to conduct separate psychiatric and psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed; and 2. The defendant is directed to attend those examinations. 1. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.
2. I make the following further orders by consent: 1. The court appointed experts, Dr O'Dea and Dr Youssef, are to submit expert reports to the Supreme Court by 5 pm on 13 April 2023. 2. The plaintiff is to file and serve any evidence for the final hearing by 5 pm on 14 April 2023. 3. The plaintiff is to file and serve written submissions for the final hearing by 12 pm on 17 April 2023. 4. The defendant is to file and serve any evidence and submissions for the final hearing by 5 pm on 19 April 2023. 5. The plaintiff is to file and serve any supplementary evidence or submissions in reply for the final hearing by 5 pm on 20 April 2023. 6. The plaintiff is to deliver a working folder to the chambers of the judge allocated to the final hearing by 4 pm on 19 April 2023. 7. The matter is listed for final hearing with an estimate of one day on 21 April 2023. 8. Parties have leave to approach the chambers of Yehia J in order to change the date of the orders above. 9. Pursuant to s 10C(1) and (2) of the Crimes (High Risk Offenders) Act 2006 ("the Act"), the interim supervision order made by me on 6 March 2023 for a period of 28 days ("the ISO") is renewed for a period of 28 days, commencing on 3 April 2023 and expiring on 30 April 2023. 10. Pursuant to s 11 of the Act, for the period of the ISO is renewed, the defendant is to comply with the conditions set out in the Schedule to the ISO. Schedule of Conditions of Supervision - Raymond Barry Cornwall (113482, pdf)

Amendments 28 March 2023 - Coversheet correction 19 April 2023 - Coversheet correction 26 April 2023 - [23] formatting DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2023