This is a preliminary hearing under s 7(3) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act").
The State commenced proceedings by summons, filed on 1 March 2023, seeking an Extended Supervision Order ("ESO") directed at Kevin Todd Fernando for a period of 2 years, on various conditions set out in the schedule to the summons.
Today the State seeks only an order under s 7(4) of the Act, appointing two experts to prepare reports for use at the final hearing (prayer 1 of the summons), and an order restricting access to the Court's file (prayer 5 of the summons). For reasons to which I will return, or which will become obvious, the State does not seek an Interim Supervision Order ("ISO") at this stage.
There is no opposition to the orders sought today. However, before I make the first of those orders, it is necessary to reach satisfaction that "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order": see s 7(4) of the Act.
The parties filed and tendered the following material during the preliminary hearing:
1. Three affidavits of solicitors from the Crown Solicitor's Office, who represent the State, along with an exhibit consisting of 2 volumes, attached to the first of those affidavits.
2. An affidavit of Mr Fernando's solicitor, which annexes a number of relevant documents.
Helpful written submissions were filed in advance of the hearing by counsel for both parties.
Mr Fernando is currently subject to a 5-year ESO which was imposed by Adamson J on 25 November 2016. He was in custody for part of the period of the ESO, with the result that the current ESO will expire on 24 April 2023. Further, Mr Fernando is subject to two separate Intensive Corrections Orders ("ICOs") both of which were imposed by the Waverly Local Court. Those ICOs will expire, on 11 June 2023 and 1 September 2023, respectively.
I make two observations as to those matters. First, the existence of the ICOs, in relation to which the conditions are very strict and include electronic monitoring, is the reason the State does not, at this time, seek the ISO (referred to in prayer 2 of the summons). Secondly, both ICOs relate to breaches of the conditions of the existing ESO and Mr Fernando's return to custody in 2020 also resulted from the imposition of a prison sentence for offences of breaching the ESO.
To reach the conclusion required by s 7, it is necessary to consider the evidence available - that is the "supporting documentation" - and the things that must be established to justify the making of an ESO. Those things are set out in ss 5B, 5I, 6 and 9 of the Act. The Act also sets out the things to which the Court "must" have regard to in deciding whether to make an ESO: see s 9(3). Some of those things are in evidence before me. Others - the reports referred to in s 9(3)(b) - are the subject of prayer 1 in the summons and the present preliminary hearing.
In terms of the more formal and technical pre-requisites of the Act I am satisfied:
1. The application was not made prior to the last 9 months of Mr Fernando's current supervision: s 6(1);
2. Mr Fernando is a "supervised offender", as that expression is defined in s 5I(2) and bringing into account the definition of "offence of a sexual nature" in s 5(2). He is also "serving a sentence" (in the form of an ICO) for an offence under s 12 of the Act (that is, an offence of breaching the existing ESO).
3. The application appears to conform with the requirements of s 5I.
The real question before the Court on the final hearing of the matter will concern the question of whether Mr Fernando, if not supervised under such an order, continues to pose an "unacceptable risk" for the purpose of s 5B(d). I say "continues" as that was a finding Adamson J made when granting the original application for an ESO. A further question will be, if an ESO is granted, what conditions should be imposed. There is evidence in the material and in the exhibits, it might be argued, that suggests some of the strictures of the ESO as proposed by the State are counterproductive to Mr Fernando's rehabilitation and are possibly difficult for him to comply with, given his cognitive capacity. However, that is not a matter for me to consider today.
Counsel has filed written submissions contesting the content of the conditions proposed by the State - particularly the requirement for electronic monitoring. However, as I said, that is not a matter that requires resolution today. It will no doubt be a lively issue before the judge who conducts the final hearing. The only question today is whether the making of an ESO - whatever be the conditions - might be justified on the material, if proved.
In determining whether to make an ESO, the Court will be conscious that the paramount consideration is the safety of the community: s 9(2). The Court will also need to consider that the primary object of the Act is "to ensure the safety and protection of the community" and that another object is for sex offenders to undertake rehabilitation: see s 3.
The Court will need to undertake the predictive exercise required by s 5B(d) and determine whether it "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".
That test, and tests of a similar nature in other statutes, have been considered in many cases. At this stage, I need only be satisfied that the material tendered or read this morning would (if proved) justify the making of the order.
It is unnecessary to go into the detail of Mr Fernando's past offending. It is set out in some detail in the judgment of Adamson J in State of New South Wales v Fernando [2016] NSWSC 1665, which is exhibited to the affidavit, in Tab 10 in exhibit JM-1. I draw particular attention to her Honour's summary of the offences committed in 1993 and 1999: at [27],[32]-[33],[35].
Also exhibited to the affidavit is Mr Fernando's criminal history, a number of fact sheets and Court Attendance Notices relating to that history, and the comments made by Williams DCJ in sentencing Mr Fernando on 25 October 2000. That material is capable of establishing a significant history of violent sexual offending. The facts of some of the offences are disturbing
In addition to the material relating to his past offending, there are a number of documents concerning Mr Fernando's performance whilst on conditional liberty, including while subject to the current ESO. There are also psychological reports and risk assessment reports going back many years and, more recently, some reports prepared towards the end of the period of the existing ESO.
A risk assessment report dated 14 October 2022 by the psychologist Sarah Wright says Mr Fernando has an "Above Average risk" of sexual offending relative to other men who have committed sexual offences. The report suggests he has demonstrated some insight into his offending and has not committed any sexual offences while on the current ESO.
An ESO completion report dated 30 June 2022 provides a similar evaluation of Mr Fernando's level of risk. A similarly styled report dated 14 July 2022 makes the same findings.
The reports also refer to a decline in Mr Fernando's cognitive functioning which may impact on his capacity to express his insight into the offending and may bear upon the appropriateness of some of the conditions that will be ultimately sought.
There are a number of positive aspects to the reports that I have not detailed here. While there have been some breaches and his engagement with services might be considered patchy, the most significant fact is that he has not sexually offended for a period of something like 20 years. Having said that, a substantial part of that period was spent in custody and, since his release, he has been subject to the strictures of an ESO imposed by Adamson J.
Mr Fernando's deprived background and early life experience also place his criminal history in some context.
Even allowing for the various positive signs, taking the past criminal record into account - particularly the awful facts of some of the offending - along with the most recent assessments of risk, there is little or no doubt that if the matters asserted in the documentation before the Court on the preliminary hearing are proved, those matters would justify the making of an ESO.
Accordingly, I must make the order appointing the experts and it is also appropriate to make the order restricting access to the Court's file.
The orders I make are these:
1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW):
1. Appointing either two qualified psychiatrists or two registered psychologists, or a combination of one of each, to conduct separate psychiatric and/or 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 by the Court; and
2. Directing the defendant 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 of access.
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Decision last updated: 17 April 2023