State of New South Wales v G

Issues

1. There was no issue that the application satisfied the applicable statutory procedural requirements. Nor that the Court could exercise its discretion to make the orders sought if satisfied to the "high degree of probability" required, that if the unchallenged evidence relied on were proven at final hearing, that an order would be justified. There was no factual dispute about the relevant matters.
2. In issue was: "6. To what extent the prospect that the defendant may remain in custody due to his arrest, extradition, custody and possible re-determination of his supervision under the Dangerous Prisoner (Sex Offenders) Act 2003 (Qld), or otherwise arrested and extradited to Queensland to face further charges, if a detention or supervision order is not made bears on the Court's assessment and application of the tests in ss. 5B(d) and 5C(d), in the context of its consideration of the preliminary hearing test in s. 10A(b) and s. 18A(b), namely whether the Supreme Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention under the order (s. 5C(d)), or, alternatively, whether the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order (s. 5B(d)). 7. If the Court is satisfied that the test set out in s 18A(b), or alternatively, s. 10A(b) is made out on the evidence, then whether the Court should exercise its discretionary power pursuant to either s. 18A(b) or s. 10A(b) of the Act to make an IDO or ISO, having regard to the prospect of his arrest, extradition custody and possible re-determination of supervision referred to in paragraph 6 above."
3. These issues had to be resolved in circumstances where no application for extradition has yet been made. On 23 November advice was received from the High Risk Offender Management Unit of Queensland Corrective Services that extradition in respect of G's outstanding warrant would be sought and that: "This extradition would be coordinated should G be released from custody, including if released to an Extended Supervision Order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW). The timing of the extradition could occur at any point whilst G is under supervision in New South Wales, including potentially towards the end of the period of supervision. Prior to any extradition occurring, relevant authorities in New South Wales will be contacted so that liaison could occur."

The parties' cases

1. The Crown case was that on the undisputed evidence the Court had power to make the orders sought and would exercise its discretion to make those orders, the terms of which were not in dispute, given what the evidence established; that no application for extradition has been made; and there was uncertainty as to when one might be made.
2. The defence case was that the situation into which the approach of Queensland authorities had placed G was effectively at risk of being kept in indefinite detention in NSW and Queensland. That was not what the statutory scheme envisages and the orders sought thus do not pay necessary regard to the statutory object of his rehabilitation, which the Court also had to take into account on this application.
3. In those circumstances, while the threshold requirements of ss 5B(a) to (c) and 5C(a) to (c) of the Crimes (High Risk Offenders) Act were satisfied, the requirements of ss 5B(d) and 5C(d) were not. The result was that the application should be dismissed. Even if that was not accepted, given the intended extradition, the Court would exercise its discretion to refuse the order, even though it was accepted that requires exceptional circumstances: State of New South Wales v Sturgeon [2019] NSWSC 559 at [7].
4. G also contended that on release from NSW custody he will be subject to arrest and extradition, and will go into custody while his outstanding Queensland offence, which carries a mandatory term of imprisonment, is dealt with. He will later also face redetermination of his supervision under the Queensland legislative scheme.
5. In the result it should either be concluded that he does not pose an unacceptable risk of committing another serious offence if not kept under supervision or detention in NSW, or the Court's discretion to refuse the order should be exercised.
6. Examples of other comparable situations were submitted to be: 1. State of New South Wales v Delaporte [2014] NSWSC 1395 where a short continuing detention order was imposed where it was likely that Mr Delaporte would be bail refused until sentenced for other offending; 2. State of NSW v Mathers [2019] NSWSC 7, where interim supervision orders were made in respect of a high risk terrorism offender bail refused on other charges against the possibility that he was granted bail; 3. State of New South Wales v Vincent (Preliminary) [2020] NSWSC 1269 where the only interim order made was for appointment of medical professionals, because Mr Vincent was soon to be sentenced for further offences and the application lacked practical utility: at [101]-[103]; and 4. State of New South Wales v Stewart (No 2) [2016] NSWSC 981, where the sentence was about to expire but Mr Stewart was bail refused on other historical NSW sex offences and was set to be extradited to Queensland to face further child sex offences on release. But in that case a continuing detention order was made.
7. If his case was not accepted, however, G did not otherwise resist the orders sought, which require his assessment and further detention, for that purpose.

The requirements of the statutory scheme

1. I was satisfied that the parties' common position that the procedural requirements of the statutory scheme had been satisfied by the State's application had to be accepted.
2. G is an offender as defined in s 4A of the Crimes (High Risk Offenders) Act, being aged above 18 years sentenced to full time imprisonment and there is no issue that he is in custody for serious sex offences as defined in s 5(1) of the Act. The evidence also established that G is also a detained offender within the meaning of s 13B, given the offences for which he is serving his sentence: s 5C(a) and (b) of the Crimes (High Risk Offenders) Act.
3. The Crown's application was made in accordance with s 13B, having been made not more than 9 months before the end of G's total sentence: ss 5C(c) and 13B(5) of the Crimes (High Risk Offenders) Act.
4. There was no issue that G is now being held in custody after having been refused parole for the offences committed in this State while he and his victims were children, with his sentence finally due to end on 18 December. That is why a pseudonym order was made by consent: s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). He will then be released into the community here, unless the interim detention order sought by the Crown is made, or an application for an extradition order is made and granted. On the evidence the latter is unlikely.
5. The evidence includes documentation specified in s 14 of the Crimes (High Risk Offenders) Act, which must accompany the application and addresses the matters specified in s 17(4). That includes a report of a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of G committing a further serious offence.
6. Section 5C empowers the Court to make a continuing detention order if specified criteria are satisfied. At this preliminary stage the Court had to be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order: s 15(4). In that event it has to make the orders there specified and if it appears that G's custody will expire before the proceedings are determined and the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order or continuing detention order, it may make an interim detention order: s 18A of the Crimes (High Risk Offenders) Act.
7. Such an order expires at the end of a period not exceeding 28 days, specified in the order, but it may be extended for a period totalling no more than 3 months: s 18C of the Crimes (High Risk Offenders) Act.
8. The Crown's case turned on the central issue of whether the Court could be satisfied to a high degree of probability that G poses an unacceptable risk of committing another serious offence if not kept in custody: s 5C(d). It relied particularly on the December 2021 report of Ms Pateman, a senior psychologist, to advance its case. The defence case rested on the prospect of extradition.
9. Whether a risk is unacceptable requires an evaluative exercise to be undertaken in this particular statutory context, having regard to the legislative objects: State of NSW v Lynn (2016) 91 NSWLR 636; [2016] NSWCA 57 at [51] discussed in State of New South Wales v Davis (Preliminary) [2020] NSWSC 754 at [28]. The statutory objects include providing for extended supervision and continuing detention of high risk sex offenders to ensure the safety and protection of the community and to encourage them to undertake rehabilitation: s 3 of the Crimes (High Risk Offenders) Act. The evidence establishes that both objects are important in G's case.
10. The need for satisfaction to a "high degree of probability" requires the Court to be satisfied of the existence of the relevant risk to a higher degree than the normal civil standard of proof requires, although not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for NSW [2007] NSWCA 374 at [21].
11. In arriving at a conclusion about the probability that G poses an unacceptable risk of committing another serious offence if not kept in detention, the matters specified in s 17(4) of the Crimes (High Risk Offenders) Act must be taken into account, together with other relevant matters: (a) (Repealed) (b) the reports received from the persons appointed under section 15 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) 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, (d) 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, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) 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, (e1) if the offender is kept in custody or is in the community (whether or not under supervision) - any options available that might reduce the likelihood of the offender re-offending over time, (e2) whether it is satisfied that the offender is likely to comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), 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 interim supervision order or an extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender'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, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence, (j) in the case of an application made on the basis that the offender has been found guilty of an offence of failing to comply with the requirements of an extended supervision order or interim supervision order - the nature of the failure to comply with those requirements and the likelihood of further failures to comply, (k) in the case of an application made on the basis that circumstances have altered since the making of an extended supervision order or interim supervision order against the offender - whether circumstances have altered since the making of the order and whether those altered circumstances mean that the risk of the offender committing a serious offence would be unacceptable unless a continuing detention order were made.
12. The Court had to approach its task at this interim stage on the assumption that the facts alleged in the supporting documentation are proven. In this case they were not challenged. But it is not required to predict the ultimate result: State of NSW v Clarke [2019] NSWSC 411 at [7].
13. The Court's paramount consideration must be the safety of the community: s 17(2) of the Crimes (High Risk Offenders) Act. It was that requirement, I was satisfied, which precluded the acceptance of the case advanced for G, no extradition application having been made.

The impact of the Dangerous Prisoners (Sex Offenders) Act 2003 (Qld) and possible extradition to Queensland on the s 5C(d) test

1. It is s 5C(d) of the Crimes (High Risk Offenders) Act which permits a continuing detention order to be made if the Court "is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order."
2. G's history of offending in Queensland; the supervision order imposed upon him by the Queensland Supreme Court; the offence he committed there when he absconded to NSW; the warrant issued for his arrest as a result; and his likely extradition to Queensland were all relevant to the resolution of what is in issue. I was satisfied that the likelihood of extradition at some time in the future, did not preclude satisfaction, to the required degree, that his release into the community after his sentence ends on 18 December will pose the required unacceptable risk that he will then commit another serious offence, to a high degree of probability.

The Queensland position

1. The result of having absconded from Queensland as he did is that G undertook only some 2 years, 2 months and 7 days of the 5-year supervision period imposed upon him by the Queensland Supreme Court and also committed an offence which attracts a mandatory sentence of imprisonment.
2. The Queensland legislation contemplates that such supervision is suspended, while G is in custody: s 24 of the Dangerous Prisoners (Sex Offenders) Act 2003 (Qld). It also empowers the Queensland Supreme Court, on satisfaction that G breached his supervision order, to rescind the order and make a continuing detention order, unless satisfied that the existing order can be amended in a way considered appropriate, to ensure adequate protection for the community or for G's rehabilitation, care or treatment: s 22(2)(a) and s 22(7) of the Dangerous Prisoners (Sex Offenders) Act.
3. There is no issue that G's extradition to Queensland can thus be sought; that Queensland authorities have repeatedly foreshadowed the making of such an application; nor that none has yet been made.

The parties' cases

1. G contended that despite this the Court should accept that he will remain in custody, irrespective of the orders it is asked to make on this application, with the result that it could not be satisfied to a high degree of probability that he poses the necessary unacceptable risk.
2. It was submitted that the possibility of his release into the community without supervision, even if not bound by this Court's order was in reality non-existent and the utility of making the order nil. Also necessary to take into account was the potential result of the making of the orders sought. Further detention in NSW and even on release here, even further detention or supervision in Queensland, resulting in potentially unlimited detention.
3. These consequences were disputed by the Crown, which submitted that the present approach of Queensland appeared to be to "wait and see" as to what happens with these proceedings. The result was that the Court could not be confident as to the inevitability of G's apprehension and return to Queensland on expiry of his sentence, even though there was obvious force in his contention that he apparently faced a further period in custody in Queensland if extradited.

The possible extradition application does not establish that G does not pose the requisite risk

1. While there is undoubtedly a likelihood that G's extradition will be pursued, the Court has to deal with the circumstances which presently exist in arriving at its conclusions about the risk which he poses.
2. These proceedings were brought on 6 July 2022. The evidence establishes that Queensland authorities have long been aware of them and that G's NSW sentence is shortly due to expire. But still there has been no extradition application made. The latest advice is that it will only be made when his supervision here ends.
3. In the absence of an extradition order, unless the interim orders sought are made, G will neither be detained nor supervised here, but released into the community on expiry of his sentence on 18 December.
4. Given the conclusions which I reached on the evidence about G posing an unacceptable risk of committing another serious offence if not kept in detention, to the necessary high degree of probability, I was satisfied that the possibility that an extradition application may at some later time be made, could not establish that he did not pose the risk which the Crown had to establish by the evidence which it led.

Why the Court's discretion to make the proposed orders has to be exercised

1. G contended, alternatively, that given his likely extradition, the Court should exercise its discretion to refuse to make the order: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [32].
2. There the proper construction of ss 8 and 16 of the Crimes (Serious Sex Offenders) Act 2006 (NSW) arose for consideration. The Court concluded that those powers entail a discretion, enabling it to refuse to make an order in a proper case, even if conditions (a) and (b) of the two sections are satisfied. There circumstances were submitted to be exceptional, that warranting the exercise of the discretion, albeit it was acknowledged that orders of limited duration, or on terms directed to the possibility of release could be made.
3. G's position was also submitted to permit the exercise of that discretion, because of the operation of the Queensland legislative scheme and the practical position that on release he was likely to be immediately arrested and extradited there, to be dealt with for his breach of his supervision order and the separate offence he thereby committed.
4. I was also satisfied that this could not be accepted, given the other evidence which had to be considered. It established that G did pose the unacceptable risk for which the Crown contended, namely a high risk of committing another impulsive serious sexual assault. The result was that the Court's discretion to make the orders pressed had to be exercised, despite the likelihood of an application for G's extradition being made in future.

What the evidence established

1. G has, it had to be accepted, a sad history since childhood, when he did not receive the care, protection and support which all our children require, to protect them from outcomes of the kind here established on the evidence. He is now aged 37 years and effectively institutionalised after many years spent in custody, where his offending has persisted. His relevant history includes: 1. a childhood reportedly marred by physical and sexual abuse and inappropriate supervision after the death of his father and the commencement of his mother's relationship with a member of an outlaw motorcycle gang; 2. minimal formal schooling due to his problematic behaviour and later, minimal employment history; 3. placement by DOCS into care, where he committed the offences, including sexual offences, some violent, for which he was convicted in 2014 and is still serving his sentence. They were committed between 2000 and 2003, when he was aged 15 to 18 years, against young family members; 4. conviction in Queensland of a considerable range of offending between 2003 and 2005, before his arrest and charge for a violent rape committed while on parole in July 2005 and conviction in September 2005 of assault with intent to commit rape, rape and stealing, to which he pleaded guilty and for which he was sentenced to 7 years imprisonment with a non-parole period of 3 years. The sexual offences involved attacks on backpackers at Airlie Beach; 5. a history of self-harming behaviours which commenced in 2007, after his mother's cancer diagnosis and a history of continuing offending while in custody, including for fighting, weapons possession, intimidation and drug use; 6. completion in custody of programs for substance abuse and sexual offending between 2007 and 2012; 7. diagnosis in June 2012 of possible dependency on alcohol, cannabis and amphetamines and satisfying the criteria for antisocial personality disorder; 8. June 2012 becoming the subject of the 5-year supervision order made by the Queensland Supreme Court, having been deemed to be a serious danger to the community, which contained similar conditions to these now sought on this application, including that he not leave the State without prior permission; 9. April 2013 Queensland conviction for indecent act; 10. his unauthorised departure from Queensland in September 2014 after disabling his tracking device, which involved a Queensland offence which attracts imprisonment; 11. September 2014 arrest in NSW and conviction for attempt to escape Police custody; 12. his 2017 conviction and sentence for his NSW offences, found by Ellis DCJ to have ranged from below mid-range to serious mid-range or higher, to 8 years imprisonment with a 5-year non-parole period. They involved: 1. aggravated sexual assault in circumstances of aggravation of a 9-year-old contrary to s 61J(1) of the Crimes Act 1900 (NSW); 2. aggravated sexual assault in circumstances of aggravation of a 9- or 10-year-old contrary to s 61J(1) of the Crimes Act; 3. sexual intercourse with a child under 10-years of age contrary to s 66A of the Crimes Act; and 4. aggravated indecent assault contrary to s 61M(2) of the Crimes Act in circumstances of aggravation, this victim being aged 5 or 6 years of age; 1. June 2019 charged while in custody with reckless wounding contrary to s 35(4) of the Crimes Act involving use of a gaol made shiv and committing a sexual act with or towards another without consent contrary to s 61KE(a) of the Crimes Act, for which he was convicted in May 2020 and sentenced to 3 years imprisonment with a 22-month non-parole period, with parole being refused in February 2021; 2. being the subject of numerous misconduct reports in custody as well as warnings for the extreme threats he was identified as posing for the good order and security of the correctional centre at which he was kept; 3. being refused parole by the State Parole Authority because he posed an unacceptable risk to community safety; 4. a history of drug and alcohol use from age 10 and ongoing methadone treatment; and 5. outstanding warrants for G's arrest in Queensland, his solicitor having contacted Queensland Police and being advised on 17 November 2022 by Detective Sergeant Carr, the Extradition Manager Queensland Police Service, that relevant agencies were still considering whether he should be extradited and were monitoring the NSW situation.
2. The evidence as to G's medical history and risk assessments included: 1. a 2011 report of the psychiatrist Dr Sundin, to whom G had been referred by the Queensland Sex Offenders and Dangerous Offenders Assessment Committee, who examined his then extensive record; sentencing remarks; his history of repeated exposure in public places; his offending behaviour and training in custody, which included a sexual offenders program in which he was assessed as posing a high risk of further sexual recidivism; his personal and psychiatric history; the results of risk assessments placing him at moderate to high risk of sexual re-offending, with the result being a recommendation that he be placed under a supervision order requiring him to be under the care of a psychiatrist; 2. a 2012 high intensity sexual offending program completion report, which assessed G as still presenting a high risk and having outstanding treatment needs and after release needing to engage in ongoing intervention to mitigate his risks; 3. a May 2012 report of the forensic psychiatrist Dr Grant, appointed by the Queensland Supreme Court, who considered G's personal history, offending, medical history and progress in prison. He then displayed no signs of mental illness and evinced an intention not to offend further, but he again was assessed as falling into a high risk category. While not being identified as having psychopathic personality disorder, he then posed a moderate to high risk of future violence offending and sexual violence offending, with the result that imposition of a supervision order was recommended; 4. a June 2012 report from the psychiatrist Dr McVie, who considered similar matters and noted significant discrepancies in G's self-reporting, concluding that he fell into a high risk category for sexual re-offending. He considered that given G's history, he was likely to present problems with supervision and likely had antisocial personality disorder; 5. a September 2012 report from the psychologist Dr Oertel, who also considered relevant background matters and G's history and conducted psychometric assessments. She concluded that his risk of sexual re-offending was high and that his alcohol and illicit substance abuse were associated with his offending. She recommended various treatments; 6. a July 2013 report from the forensic psychiatrist Dr Grant, who had also considered G's background and history at a time when he had completed a 7-year sentence. He did not repeat risk assessments using tools which had already been applied in earlier assessments, but agreed that G had antisocial personality disorder, assessing him to have a moderate to high risk of re-offending; 7. a March 2014 report from Dr Oertel, at a time when G was living supervised in the community. He was then assessed to be at high risk of sexual recidivism and ongoing treatment proposed was explained; 8. a June 2014 report from Dr Oertel who assessed G as still posing a high risk of sexual recidivism and explained the focus of his ongoing treatment; 9. a February 2015 report from the psychologist Ms Brooks after G had separated from his partner, which had led to him absconding and overdosing on medication. She considered that intervention was required and proposed further treatment; 10. a December 2017 psychiatric report prepared for the 2017 hearing in this State, where Dr Elliot explained the history G had then given and concluded that he did not suffer any major mental illness, but had a history of significant substance abuse problems; behaviour consistent with conduct disorder and maladaptive personality traits, resulting in relationships of conflict and aggression; that he did not require psychiatric care, but would benefit from programs for sexual offenders and substance abuse; 11. a 2019 NSW Justice pre-release report prepared by the Director - Community Corrections Hunter District, who explained that G had been unable to commence the EQUIPS Addiction program because of misconduct charges which had resulted in him being placed in segregation and that he had not participated in other educational programs in custody. He was then assessed to be at a high risk of re-offending and requiring a high level of supervision. A proposed supervision plan was explained, if he were released on parole, which was not recommended; 12. the November 2019 decision of the State Parole Authority to refuse G parole because it was not satisfied that the risks G posed were adequately mitigated; concluding that G's release was not in the interest of the safety of the community and that he needed to complete an appropriate program to address his offending behaviour; 13. a 2020 sentencing assessment report which assessed G of being at high risk and well above average risk of re-offending, he having expressed no regret for his offending; 14. a January 2021 pre-release report, which referred to G's refusal to participate in sex offender programs, despite committing further offences of a sexual nature. G then expected to be extradited to Queensland on release, but a parole order was not recommended, given his ongoing denial of offending, refusal to participate in treatment programs, further sexual offending in custody and violent and disruptive behaviour, which led to the view that he posed too high a risk to the community to be released; 15. the Parole Authority's March 2021 decision to refuse G parole again, given the need for him to complete an appropriate program to address his sex offending, his poor prison performance and his unacceptable risk to the community; 16. a December 2021 risk assessment by the psychologist Ms Pateman, supported by the Chief Psychologist NSW Risk Management Programs Ms Cieplucha, prepared in anticipation of this application. It noted G's long history of general, violent and sexual offending against stranger adult women and children; that while he had undertaken custody-based sex offender programs in Queensland, he had refused to do so in NSW; and while offered addiction programs, had not yet had an opportunity to participate. G had earlier been assessed using tools, the limitations of which were explained, as falling in the medium-high risk for general and violent offending; high risk compared to other male sexual offenders and well above average risk; and having high density crimogenic needs. He was then assessed as still having such needs and posing well above average risks. Impulsive sexual assaults on stranger adult females were his most likely risk scenario, as well as impulsively exposing himself and masturbating at stranger females and possibly children. He was, however, identified to be suitable for an ESO; 17. a further December 2021 Corrective Services Risk management report which found G posed a medium to high risk of general re-offending and a well above average risk of sexual offending; 18. a January 2022 pre-release report that noted the various levels of risk he had been assessed to pose; a high risk of re-offending, a well above average risk of further sex offences using one tool and of high risk using another, with his need for supervision at a high level also explained. While there had been some improvement in his conduct the risk he posed was considered to have increased since 2019. He had been in custody for the majority of the preceding 18 years, indicating a high level of institutionalisation and ongoing problems which had resulted in further criminal charges, as well as numerous internal misconducts. It was recommended that he not be released on parole; and 19. the Parole Authority's March 2022 decision not to release G because he posed an unacceptable risk to the community.
3. These and other documents shed a disturbing light on G's attitude to his sexual offending including still, at times, an absence of remorse consistent with his limited engagement with programs in custody which might have assisted him. The repeated assessments of the serious risks of further sexual offending which he continues to pose had to be considered in light of his history of failure to comply with the terms of the supervision imposed upon him by the Queensland Supreme Court and his ongoing offending in custody. That involved not only violence, but substance abuse and poor response to supervision, which all established a basis for the conclusion that G presently poses an unacceptable risk of committing another serious offence, if not kept in detention under the proposed order.
4. Also relevant is that G has been refused accommodation in various support programs after release because of his risk profile. While he has evinced an interest in living in the north of NSW, he considers that he will not require such accommodation, because of his expected extradition.

On that evidence the discretion had to be exercised

1. I was well satisfied on all of this evidence, no extradition application having been made, nor being likely to be made or granted before G's sentence expires and he is released into the community, that all of the unchallenged evidence I have discussed established to the necessary high degree of probability, the nature of the unacceptable risk which G would then pose if not kept in detention. Namely, of committing further serious sex offences.
2. I was also satisfied that the Crown having met the onus which fell upon it, to establish the existence of that risk, to the required high degree of probability, the Court's discretion had to be exercised.
3. The likelihood of a later extradition application could not ensure that G was not released unsupervised into the community when his sentence expires in December. That result was not one which a proper exercise of the Court's discretion could permit, given the risk which G clearly poses to the safety of the community, that being the paramount consideration on an application such as this.

The final hearing

1. It may be that the position at final hearing is different.
2. It is difficult to understand, given the respective objects of the Queensland and NSW legislative schemes, G's offending history and the Queensland warrant for his arrest in respect of the offence involved when he absconded to NSW, in breach of the Queensland Supreme Court's order, why an extradition application has not yet been made. Especially given his known impending release date.
3. In the circumstances, a timely extradition application would seem to be a matter of obvious public interest in Queensland, as well as of relevance in these proceedings. But on the evidence even the making of an extradition application before the conclusion of G's sentence is unlikely.
4. The making of such an application is not within the control of the Court. Extradition begins with the exercise of a discretion which Queensland authorities have. Whatever they decide, the Court in these proceedings has to have regard to the paramount consideration, the safety of the community, when dealing with this application.
5. On the making of an extradition application, the Court could undoubtedly take it into account in fashioning the appropriate orders. For example, an order could provide for continuing detention or supervision until an order for extradition is made and given effect. Or on the making of an extradition order, the Court's detention or supervision order could be revoked, so that the extradition could proceed.
6. Such an orderly course appears to be obviously preferable to that presently being pursued in respect of G's extradition. But that, of course, is also not within the control of the State or G. Both the parties and the Court can only deal with the consequences of decisions which Queensland authorities make about an extradition application. Preferably they will now be revisited.

Orders

1. For the reasons given I ordered that: 1. Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): 1. Two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) are appointed 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. The defendant is directed to attend those examinations. 1. Pursuant to ss 18A and 18C of the Crimes (High Risk Offenders) Act the defendant is subject to an interim detention order for a period of 28 days from 18 December 2022. 2. Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act that the Court issues a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in paragraph 2 above.

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: 25 November 2022