State of New South Wales v Delaporte - [2022] NSWSC 436 - NSWSC 2022 case summary — Zoe

NSWNSWSC

State of New South Wales v Delaporte

[2022] NSWSC 436

Supreme Court of NSW|2022-04-04|Before: Garling J, Button J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2022-04-04

Before

Garling J, Button J

Source

Original judgment source is linked above.

Judgment (17 paragraphs)

[1]

Judgment

On 14 December 2021, the State of NSW ("the State") commenced proceedings against Jason Delaporte claiming by way of final relief, an order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 ("the Act") that he be subject to an Extended Supervision Order ("ESO") for a period of three years.
In that Summons, the State also sought relief pursuant to s 7(4) of the Act appointing two suitably qualified experts to examine the defendant and report to the Court. Finally, the State sought the imposition of an Interim Supervision Order ("ISO") for a period "… commencing on the expiry date of the defendant's current extended supervision order".
This judgment deals with the making of those interlocutory orders.

[2]

Relevant Legal Test

The principal orders which are being sought are for an ISO. On such an application, the Court is not engaged in the task of weighing up the material contained in the evidence, or else predicting the ultimate result of the State's substantive application. Rather, the Court needs to be satisfied that on the facts and matters contained in the supporting documentation provided to the Court by the State, the Court would, if those facts and circumstances were proved, be justified in making an ESO.
This is a test analogous to that which formerly applied for the determination of whether a prima facie case existed sufficient to justify the committal of a defendant to stand trial: see Attorney General for NSW v Kapeem bht Jennifer Thompson (Preliminary) [2018] NSWSC 619 at [16]; Attorney General for NSW v Tillman [2007] NSWCA 119 at [38]; State of NSW v Thomas (Preliminary) [2011] NSWSC 118 at [11].

[3]

Relevant History

On 13 October 2014, Button J imposed a continuing detention order on the defendant for a period of four months to expire on 20 February 2015. In addition, he imposed an ESO of two years duration from 20 February 2015 to 19 February 2017 ("the 2015 ESO"). His Honour's reasons are to be found at State of NSW v Delaporte [2014] NSWSC 1395.
The orders made by Button J were at a time when the defendant was on parole pursuant to a term of imprisonment of 16 years, commencing on 4 May 2000, for committing a number of sexual offences including serious sex offences in 1998. Whilst on parole, in August 2014, the defendant committed a series of property offences for which he was subsequently sentenced to 5 years and 6 months fulltime imprisonment. His parole was revoked and he was returned to custody. Because his parole was revoked and he returned to fulltime custody, the 2015 ESO which was to commence on 20 February 2015 ("the 2015 ESO"), was suspended. Ultimately, the defendant was not released into the community and the 2015 ESO did not commence until 3 May 2018.
During the course of the 2015 ESO, in October 2018, the defendant was arrested and taken into custody and charged with failing to comply with the conditions of the 2015 ESO in that he tested positive to methamphetamine. The defendant pleaded guilty to that breach and was sentenced to 15 months imprisonment with a non-parole period of 10 months. The 2015 ESO was again suspended.
On 29 October 2019, the defendant was again released to the community on the 2015 ESO. On 21 January 2021, the defendant was arrested and taken into custody and charged with two offences of failing to comply with conditions of the ESO in that he accessed various internet sites without approval. He was sentenced to 18 months imprisonment with 12 months non-parole. On 16 January 2022, the defendant was released into the community and has been in the community whilst supervised pursuant to the 2015 ESO since that time.
The consequence of the various suspensions of his ESO means that the 2015 ESO imposed by the order of Button J will expire on 29 April 2022.
That is the date upon which the State seeks the imposition by this Court of an ISO.

[4]

Attitude of the Defendant

In written submissions, counsel for the defendant informed the Court that the defendant: 1. did not oppose the appointment of the two experts and the supplementary directions for him to attend the examination by those experts; and 2. did not oppose an order that he be subject to an ISO for a period of 28 days commencing on the expiry date of his current ESO.
However, the defendant did oppose a number of the conditions set out in Schedule A to the State's Summons. It will be necessary to return to the conditions in due course.
Counsel for the defendant did not seek to cross-examine any witness for the State nor was any objection taken to the evidence tendered by the State. The defendant called no evidence.
Counsel for the defendant made the following concessions for the purpose of this interlocutory application only: 1. the application was brought within the requisite time period: s 6(1) of the Act; 2. the defendant is an "offender" who has served a sentence of imprisonment for a "serious sexual offence": ss 5B(a) and 5(1); 3. the defendant is a supervised offender within the meaning of ss 5B(b) and 5I; and 4. the application was made in accordance with s 5B(c) and 5I.
The defendant accepted that, for the purposes of the preliminary hearing, the supporting documentation tendered by the Crown would, if proved, satisfy the Court to a high degree of probability that he poses an unacceptable risk of committing another serious offence if not kept under supervision: ss 5B(d) and 7(4) of the Act.
Submissions by the defendant's counsel pointed out that the concession with respect to the supporting documentation provided by the State was based upon the following factors: 1. the assessment of the defendant's risk of sexual offending is "well above average" compared to other men who have offended sexually according to the STATIC-99R Actuarial Risk Assessment; 2. the assessment that the defendant has a "high density of criminogenic needs" relative to other male sexual offenders according to the STABLE-2007 assessment tool; 3. the assessment that the defendant continues to have outstanding treatment needs; 4. the defendant's prior breaches of the 2015 ESO; and 5. the defendant's pattern of offending, including the multiple sexual offences he committed against different females between August and October 1998.
As I have previously noted, in other similar matters, these proceedings are civil proceedings in which the defendant is represented by counsel. This Court is entitled to rely upon such explicit concessions, properly made by counsel, as constituting sufficient reason to make the interlocutory orders by way of an ISO with conditions for the protection of the community.
The supporting documentation and the helpful submissions of the State amply justify the concessions which were made by counsel for the defendant. Together, they satisfy me that the orders by way of an ISO and the appointment of suitably qualified experts ought be made. The ancillary relief ought also be granted.

[8]

Conditions 28 and 56

The State seeks the imposition of the following clause: "28. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary."
The defendant opposes this on the basis that it is an undue invasion of his privacy. Condition 56 has a similar issue and it is convenient to deal with that as well. It is in the following form: "56. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him."
The State submits that these conditions are both necessary and appropriate for two reasons. First, such disclosure may be relevant when necessary to address the risk of commission of a serious offence. Secondly, the State submits it may be necessary to inform a person with whom the defendant was embarking on a relationship or a health or allied health practitioner who may be seeing the defendant alone in therapy sessions, for their personal protection.
The defendant submits that the disclosure of his criminal history as contemplated by Conditions 28 and 56 should only be made where it is reasonably necessary to address the risk of commission of a serious offence. He also submits that before any such disclosure is made, he should be so informed and given the opportunity to make the disclosure himself.
I am not persuaded that the State should have an entitlement, in the circumstances of this particular case, to make a blanket disclosure to all people about the defendant's criminal history, where that is thought to be reasonably necessary.
In my view, the conditions and restrictions suggested by the defendant are appropriate. Disclosure is only necessary where it may relate to the risk of the commission of a serious offence and the defendant should be given the opportunity to make the disclosure himself before a DSO does.
In my view, Condition 28 is an appropriate one in the following terms: "28. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary to address a risk of the commission of a serious offence. Before any disclosure is made, the defendant must first be so informed and given the opportunity to make the disclosure himself."
Condition 56 should be in the following terms: "56. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him to the extent that it is relevant to his risk of reoffending or rehabilitation. Before any disclosure is made, the defendant must first be so informed and given the opportunity to make the disclosure himself."