Background and survey of the evidence relied upon in support of the application
The Defendant was born on 7 November 1977 in Penrith and was raised in the Campbelltown and Mt Druitt areas. He is now 40 years old. He lives with his partner and children near Wyong.
The Defendant has three younger brothers and a younger sister. His father died of a heart attack in 1995. There are contradictory descriptions in the past as to his family life. In early Probation and Parole and other reports, a close and loving family relationship is described but in later reports, his father is described by him as an alcoholic who was very violent to the Defendant's mother. The Defendant started having problems with the law and authorities at about age 14 and left school aged 15 without completing his school certificate. There are accounts of use of alcohol and cannabis from early to mid-teens.
At the age of 17, in May 1995, the Defendant entered a plea of guilty to manslaughter. He was sentenced to a minimum term of 3 years and 6 months with an additional term of 4 years. The remarks on sentence by Dunford J, referencing the agreed facts, indicate that the deceased had allegedly stolen some items from a residence and the Defendant and other young persons went to recover the items and exact retribution from him. They punched him, dragged him to a nearby house and kicked him. There was a continuing assault including a punch to the deceased's head by the Defendant. The expert evidence concluded that the cause of death was the Defendant's punch to the head. There was no element of drug or alcohol intoxication involved on the Defendant's part.
In March 1996, a successful application was made to the Minister to remove the Defendant from a juvenile detention centre to serve his sentence in an adult correctional facility (the Defendant had turned 18 in November 1995). This application took into account the serious sexual assault on the inmate at Mount Penang that had taken place on 29 December 1995, and other incidents including assaults on staff at two correctional centres and threats and abuse towards staff and other detainees.
In November 1996, the Defendant was found guilty by a jury and was convicted and sentenced to 5 years imprisonment (with 2 years and 6 months non-parole) by Judge Luland for the aggravated sexual intercourse without consent committed in December 1995. The remarks on sentence described that the offence was committed on another inmate by the Defendant and three co-offenders whilst in Mount Penang Detention Centre. The Defendant sat on the chest of the victim. The victim was kicked and punched by others, the Defendant threatened to rape the victim and asked someone to get a broom, a co-offender attempted to insert the broom into the victim's anus but the victim's pants were still on so he was unable to do so, the victim's pants were removed and the Defendant inserted the broom into the victim's anus forcing it back and forth about 5 times to a depth of 8-10 inches. The sentencing Judge observed that the Defendant "engaged in the cruel act of inserting the broom into the victim's anus and somewhat gloated about it to a witness later on". The victim suffered post-traumatic stress disorder and suicidal ideation, as well as physical injuries. This is an extremely serious offence. There is no evidence that it involved the use of drugs or alcohol.
In 1998, there is record of the Defendant assaulting staff (spitting on a correctional officer whilst on segregation). The Defendant was also sentenced for 2 months for malicious damage for his part in a prison rampage.
There are positive comments, particularly around 2000 as to the Defendant's improvement in behaviour and attitudes, observed by both the District Manager at Goulburn and correctional officers. There were reports of attendance at education courses where efforts were made by the Defendant to improve basic literacy. The Defendant was also studying art, IT and conflict resolution. He received certificates for Aboriginal Studies, Aboriginal Art, fitness instruction, presentation skills, conflict management and violence prevention.
There was some difficulty with the Defendant's attitude to attendance at the sex offenders program, with the Defendant identifying that he was concerned that he would be stigmatised as a "rock spider" if he attended.
The Defendant was released on parole on 23 October 2000. A parole report prepared at that time described the offending in December 1995 as "more a demonstration of power and control than of sexual desire".
There were instances of non-compliance with requirements of probation and parole, and a number of non-attendances for drug and alcohol counselling, but also some positive reports about attitude and efforts to seek employment through a culturally appropriate agency.
In May 2001, the Defendant was returned to custody having pleaded guilty to possess car breaking implements, take and drive conveyance without consent, and drive recklessly. He served 6 months and was released on 30 January 2002.
In a Probation and Parole Report dated 26 November 2001, it was observed by the author that after hearing of the revocation of his parole, the Defendant had "gone downhill as if all was lost", and returned to the use of amphetamines and upon entering gaol was going through withdrawals and a drug detoxification regimen was commenced. There was also reference to the Defendant's father having had an alcohol problem and that he was extremely violent towards the Defendant's mother, but that the Defendant did not want to betray his deceased father before by revealing those matters.
The Defendant's record was far from clean between release in early 2002 and the index offence in March 2016. There were a number of offences that led to arrest and imprisonment. None qualifies as a "serious violence offence" although two are of particular concern. In May 2002, there was an assault police officer and cause actual bodily harm when the Defendant was found to have a swung a knife at police when trying to break free from their grip, wounding both officers, and an assault and contravention of an AVO in August 2013 which involved the same victims as the index offence in March 2016.
Other offences, which number 16 in total, include shoplifting, resist arrest, assault, failure to appear in accordance with bail undertaking, larceny, and fail to comply with reporting obligations. There is no reliable evidence that any of the violence offences during this period - May 2002 to March 2016 - involved intoxication with drugs or alcohol.
In a Probation and Parole pre-assessment report dated January 2010, the Defendant admitted to smoking cannabis from approximately 11 years of age, and that abuse of illicit substances had been problematic after that. He stated he had been prescribed methadone by the Kullaroo Clinic for the past 12 months, and had ceased heroin, but was resistant to attending the cannabis clinic to address ongoing cannabis dependency.
In 2012, a breach of parole report identified that in July 2012, on random urinalysis, there was a positive response to cannabis. He had also moved from his approved address without permission although this seems to be related to an argument with his partner.
A pre-sentence report dated 6 December 2012 referred to some insight into the problematic nature of his drug dependency, but that treatment commenced at the Central Coast Area Health Cannabis Clinic did not continue.
In a pre-sentence report dated 11 December 2013, Ms Dewberry took a comprehensive history of substance abuse in which the Defendant acknowledged ongoing struggles with heroin, amphetamine and methamphetamine addiction and reflected on the negative impact these issues have had on most aspects of his life. The report also refers to participation on the methadone program for about 7 years, that there had been lapses into illicit drug abuse and that in September 2013, he had tested positive for morphine and methamphetamine.
He is reported to have acknowledged anger management issues and that he had difficulty controlling his emotions when the 2013 offences occurred, which Ms Dewberry observed to be "a recurring theme evident in his criminal history". Ms Dewberry made this observation regarding attitude to offending. The absence of alcohol and drugs as a factor in offending is of note:
"In regard to the common assault and contravene AVO convictions, Mr Hampton disputed the police facts, demonstrated no insight into his offending behaviour. He attempted to apportion blame to the victim and stated 'he was lucky I didn't punch him in the face'. In regards to the conviction of resist officer in execution of duty, Mr Hampton attributed blame to the arresting officer who he identified as the aggressor and continually referred to the New South Wales Police in a derogatory manner. Furthermore, Mr Hampton disputed the police facts and claimed he was not under the influence of drugs or alcohol when then current offences occurred." (p 3 pre-sentence report)
The offence relied upon by the Plaintiff as the index offence for this application occurred on 29 March 2016. The victims went to premises to buy drugs. The Defendant happened to be there. There is no reliable evidence that he in fact had taken or smoked drugs, purchased drugs, or was under the influence of drugs or alcohol at the time. The Defendant threatened and abused the female victim (she is the sister of the Defendant's de facto partner) who feared for her safety (the ADVO offence). It was said that in the police facts that he "appeared to be under the influence of a drug" but the basis or source for this observation is not stated. He had a bladed metal object under his sleeve. He then, unprovoked, struck the male victim in the jaw, breaking it (the GBH offence). The Defendant pleaded guilty and was sentenced to 2 years imprisonment for the GBH offence with a non-parole period of 20 months. This was reduced by Bozic J to 14 months. He received a s 9 (Crimes (Sentencing Procedure) Act 1999 (NSW)) bond of three years for the ADVO offence. In an explanation given to Dr Parker when assessed in September 2017, the Defendant said that the couple had lived with him for a period when they were homeless and that a dispute broke out over how they were treating his children.
Selected case notes of Corrective Services have been included in the material tendered in support of the application. Why particular pages were selected as opposed to others has not been made clear. The selected documents are simply referred to as part of a "core tender bundle" of material extracted from documents produced in answer to s 25 orders and requests under the Act.
Whilst I appreciate supporting material in applications such as these can run the risk of being too voluminous when a Defendant has been in custody for long periods, I find extracting select pages from more recent periods of supervision can provide an unbalanced picture of matters relevant to my assessment of current and future risk, particularly in cases like this where the offending of most concern occurred over 20 years ago.
For reasons that are not revealed, despite the State Parole Authority being identified in para 6 of Mr Ng's affidavit as an organisation that produced materials in response to orders made under s 25, there is no documentary information at all included that deals with the Defendant's circumstances, cooperation and supervision after 8 August 2017.
The last entry available is an interaction with Wyong Community Corrections of that date which states as follows:
The offender attempted to participate well in the exercise and was able to identify strengths such as honesty and love for his family. He indicated that he was practical rather than a thinker. He added that he was less likely to be social but he enjoyed time playing with his children and helping them and doing Aboriginal art with them. Anthony engaged in the activities, but seems to struggle sometimes with coming up with answers. He advised that if he was able to do anything in life, it would be a builder, he reported that his job network provider is Olympus Solutions and signed a ROI for us to be able to contact them. He also signed ROIs for Elanora Duncan and claims he has had contact with them to find a psychologist as they provided him with details for the Aboriginal MH team and he contacted them yesterday. He also signed ROI for me to be able to confirm he took his son to the GP for a broken toe last week. No changes noted, no police contact, the offender presented well, alert and in good spirits.
Current Parole Reporting Arrangements were tendered. These include a number of standard conditions but do not include a curfew, electronic monitoring or a requirement for there to be direct supervision or reporting of his movements. There is no first hand material before me from Probation and Parole that indicates that the Defendant presents as non-compliant with current parole conditions or is or has been taking drugs or abusing alcohol in the last 6 months.
[2]
Expert reports and risk assessments
A report of Dr Parker, senior psychologist from the Serious Offenders Assessment Unit of Corrective Services New South Wales dated 30 May 2017 was tendered. Dr Parker states that his report preparation involved a 30 minute interview with the Defendant on 28 September 2017 and review of various documents. He concluded that the Defendant is "estimated to be at high risk of further violent offending" because of "static unchangeable factors and backed up by the identification of a number of criminogenic needs" and noting that the VPP and EQUIPS addiction programs "do not appear to have resulted in any substantial changes in his pro-criminal thinking".
Whilst it is not my task to predict decision-making at final hearing or to weigh in detail the evidence and make formal findings about that evidence, I consider it necessary to provide some analysis of what seems to be conclusions by Dr Parker that are contradicted or not supported by other material tendered in support of the application.
First, Dr Parker has extracted in paragraph 18 of his report snippets of negative observations of the Defendant's behaviour after release and not a single positive one, although there are many positive and encouraging comments in the materials tendered from DCS.
An analysis carried out under the heading "Criminogenic needs" makes a number of generalised statements with little, if any, reference to the basis of assumptions made. Examples include "it is likely that Mr Hampton's criminogenic attitudes are reinforced or at best not effectively discouraged by his peers", and "alcohol abuse appears to be linked to Mr Hampton's criminality..." despite there being no identification of who the peers are or when or how they were a factor and no evidence that alcohol was involved in any of the index offences, any of the offences that qualify as serious violence offences or indeed much, if any, of the more minor offending between May 2002 and now.
Dr Parker applies "criminal thinking" as a negative factor stating that "the lack of provocation required and his violence within the custodial environment suggest that the idea that violence is a normal (acceptable) means of solving problems is probably endorsed by Mr Hampton". There is no explanation or elaboration as to how this conclusion is reached and what particular events are referred to, whether they are recent or historical.
The basis Dr Parker cited to support a conclusion that the Defendant "rejects society's role in setting laws" was that the Defendant expressed the view that Probation and Parole was "stressing him out" and "messing with his life". These comments are an inadequate basis upon which to reach such a conclusion. Other conclusions reached in para 42 of the report of Dr Parker are similarly inadequately supported and are largely based on inaccurate perceptions of the role of alcohol or drugs in the serious violent offending in the past.
Dr Parker concluded that the relationship with his de facto of over 10 years is a protective factor for the Defendant - although the relationship has its ups and downs. He also notes that at 39 years, Mr Hampton is past the peak age for violent offending and cites literature that men's propensity for violence peaks between the ages of 20 and 30 and then declines precipitously, although other researchers describe the drop off less dramatically.
Dr Parker ultimately concludes that the Defendant is at high risk of further violent offending. This conclusion only partially informs the issue of whether the Defendant is a person with a "high degree of probability" that he "poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision".
The Plaintiff also relied upon a report of Ms Flatley who is described as "Senior Community Corrections Officer, ESO Team" dated 23 October 2017. As one of the "sources of information" there is reference to an "interview conducted with Mr Hampton", however I was unable to find in Ms Flatley's report where she deals with the contents of that interview and what she learnt from the Defendant about his attitudes, difficulties, contemporaneous drug or alcohol use if any and the veracity or otherwise of reports by his partner regarding methamphetamine use earlier in 2017. Her report seems to be heavily based on other persons' views and documents, and the report of Dr Parker and his assessment. It includes a number of unattributed generalisations. Rather than providing first hand evidence of asserted "unsatisfactory" response to parole supervision, Ms Flatley cites others unattributed views without context. Inquiries she has made revealed some relationship issues in October which had settled down and one positive swab for cannabis and one negative. Quite unfairly to the Defendant, Ms Flatley made reference to something allegedly said by the Defendant about cannabis use, but without clarifying that the quote attributed to the Defendant was made nearly 9 years ago. Instead, she deployed the comment in a paragraph addressing the evaluation of cannabis use in October 2017. Deploying the comment in this way, without clarifying when it was said, is misleading.
I am unable to tell from Ms Flatley's report what assessment, she made about the proposed "risk management strategies" and whether they are relevant or necessary. Whilst I appreciate the report is directed to s 9(3) factors, the report is suggestive of a focus on collection and collation of negative comments and views with little, if any, context provided rather than a balanced representation of the Defendant's cooperation with Probation and Parole. Whilst the assessment identifies a number of strategies that "could" be provided, and may even be useful to the Defendant to curb anti-social tendencies, that is not the test for the grant of an ISO.
[3]
Submissions made on behalf of the Plaintiff
Three broad bases of support were articulated. The first was the history of offences which was described as "extensive" and involving "a normalisation of violence" dating back to 1991 when the Defendant was 14 years old. The second was a six point analysis of the Defendant's criminal and social history and attitudes that it was said supported that there was a high degree of probability of there being an unacceptable risk of a serious violence offence being committed if not kept under supervision. Third it was said that the Defendant's current attitude indicates, despite good intentions, a failure to successfully overcome all the matters that feed into the unacceptable risk associated with him.
In support of her first ground, counsel for the Plaintiff went through the long history of violent offences committed by the Defendant. It is fair to say that many of these offences were committed when he was a young man but certainly not all of them. The Plaintiff relied upon the opinion of Dr Parker that the Defendant "may not actively seek violence but that a non-violent circumstance can suddenly convert to a violent one" as evidenced by the circumstances of the assault on 29 March 2016 (the index offence).
In addressing the discretionary factors the Court must consider, the submissions were divided into six categories. First is a submission that there was an "ongoing anti-authoritarian attitude evidenced in poor compliance with requirements" and that this feeds into the presence of dynamic risk factors of criminal thinking, citing in particular paragraph 42(c)(2) of the report of Dr Parker.
Second, it was submitted that there was a "real and present concern" regarding drug use and that it was ongoing. In support of this submission it was noted that in March 2017 whilst in custody, there was a refusal of a drug test and the location of a drug implement in cell and that an entry of 7 May 2017 appears to support a conclusion that the Defendant had used heroin in his cell. These events were after the EQUIPS program was completed in December 2016. There was an allegation that in August and September 2017, there was amphetamine use reported by the Defendant's partner. It was submitted that all of this needs to be viewed against a background of reports that suggest that the Defendant has had drug and alcohol issues and use and abuse of them since age 13.
It was argued by counsel for the Plaintiff that there was drug and alcohol use in March 2016 associated with that offending given there is observation that the Defendant was in holding cells at the police station at Wyong on 31 March due to intoxication, and that it was noted in the police facts that the applicant appeared to be under the influence of a drug at the time of the assaults on 29 March.
I pause here to observe that I do not accept the evidence supports that there was in fact drug or alcohol use associated with the index offence. There was an unattributed lay observation that the Defendant "appeared to be drug affected" on 29 March 2016 at the time of the offending. How and when he came to be arrested and placed into police custody for what was observed on 31 March is unclear. If he was arrested and held on 29 March at the time of the index offence, appearing intoxicated 2 days later seems nigh on impossible. If he was subsequently arrested whilst he happened to be intoxicated with alcohol after the offence, the observation is irrelevant.
The third consideration was the absence of a protective factor associated with employment because he is and has remained unemployed.
The fourth factor is that the de facto relationship is not protective given that he has continued to commit offences whilst in the relationship, however this submission is contradicted by Dr Parker's conclusion that "it is likely that his partner acts as a restraint against his offending" (p 8, para 42(a)).
The fifth factor was the actuarial assessment of risk set out in the report of Mr Parker. That report concludes that there is a further risk of violent offending. I was encouraged to consider that given Dr Parker's conclusion that the tool is thought to be a predictive tool for the risk of serious violence offences being committed, this is of sufficient relevance to my discretion.
A sixth matter raised, perhaps faintly, was that there was some evidence of psychopathy and a "tendency to that kind of behaviour" which also feeds into the risk assessment. (I reject that submission as there is no evidence of any relevant present psychopathy.)
The third broad category raised was that of a "poor current attitude". Counsel for the Plaintiff took me to statements of intention by the Defendant as to improving his social conduct and getting a job but that his application to these matters waxed and waned so I could have no confidence that he would ever comply with counselling or other requirements to improve and that all the indications are that "he cannot succeed in the community and needs supervision". Again, this is not salient to the test I need to apply in determining whether an ISO should be made.
[4]
Defendant's submissions
The Defendant's primary submission is that he does not meet the criteria as he is not a person who presents with a high degree of probability that he poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. A number of matters were raised.
The first was that despite the Defendant having been on parole for 10 months, there were no documents regarding how he was managing in the community and nothing at all identified as to what the parole authorities have been doing. If there truly is an unacceptable risk associated with the Defendant, particularly associated with allegations of drug and alcohol abuse - there is no evidence of steps being taken to manage the Defendant's criminogenic needs. This significantly undermines the Crown's case.
There is in place a three-year good behaviour bond and if in truth the Defendant cannot be supervised in the community under such a bond, it is unlikely a court would have chosen such an approach for recent offending.
In respect of the Plaintiff's submissions about the history of past offences, most of them were as a juvenile or young adult, and the more recent offending in 2016, whilst a serious injury was involved, was towards the bottom of the end of a range of offences of that type, involving as it did a one-punch to somebody whom the Defendant knew and with whom the Defendant was in a relationship.
The historical offences are not the relevant issue in terms of the underlying objects of the Act to protect the public and rehabilitate the offender.
The 2016 offences do not amount to a "pattern" of violent offending. The risk associated with the Defendant has and does diminish over time. The frequency and seriousness of offences has clearly de-escalated over time and such de-escalation can be expected to continue as he gets older and more settled. Whilst the low threshold of violence was visible and applicable in younger years, it is not so readily visible now.
In terms of s 5B(d) matters, there is little evidence of non-compliance more recently to support the submission that the Defendant is "anti-authoritarian". Examples of negative behaviour towards police or community corrections are not recent, nor are they regular.
The assertions by Dr Parker that there is criminogenic thinking are not based on any real analysis in the report as to how these matters apply to the Defendant. They are simply blanket statements and how they apply and how they affect the Defendant's behaviour is not specified, and certainly not how those matters are likely to affect his behaviour in future. Dr Parker's report is insufficient in these respects to be able to be taken into account.
In answer to the submissions about drug use, there is no reliable confirmed recent information about drug use or testing. Certainly if he continued to be in the grips of addiction, one would expect there to be evidence from the Parole Authority about the steps they are taking to address that and there was no such evidence. Whilst there is emphasis in the Parole Authority's role on rehabilitation of the offender, both that legislation and the "High Risk Offending" legislation are directed towards reducing reoffending and accordingly if there truly is a high risk of offending because of alcohol or drug use with the Defendant, that should be a feature in the evidence on this application showing what Probation and Parole are doing in relation to addressing those risks. There is no such evidence. The most recent evidence suggests that employment is currently being pursued and there was on last account in the records provided, cooperation with requirements.
In terms of the actuarial evidence, the results are inconsistent. On the LSIR there is medium to high risk of future violent offending, but on the VRS there is high risk. This does not amount to an inevitable conclusion that there is an unacceptable risk of serious violent offending by the Defendant, if he was not subjected to supervision.
In terms of submissions about current attitude, "snapshots" are unhelpful. It is not salient to submit that because good intentions did not result in overall positive outcomes that the Defendant has a negative current attitude. Setbacks regarding employment and social issues that are not the Defendant's fault should not be used in this way, and what can be gleaned from the current situation, to the extent it is in evidence, is that there are some positives, genuine efforts being made, and that the structural management provided by the conditions of his probation and parole have helped address those matters. There is nothing magic in an extended supervision order, interim or otherwise, that will cure the employment and social difficulties the Defendant suffers.
There is absolutely no basis for a schedule of movements and curfew. They are significant changes to what is currently provided on parole and there is no evidence as to how these are either therapeutic or protective of the community.
Decision
I accept each of the Defendant's submissions in full. I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. I am not satisfied that there is a high degree of probability that the Defendant poses an unacceptable risk of committing a serious offence if he is not kept under supervision
Counsel for the Plaintiff placed a great deal of emphasis upon the history of attacks and assaults by this man, particularly in the period when he was a juvenile and young adult. Other than the index offence in 2016, there is no other serious violent offending since the early 2000s. There is no doubt in the 1990s and early 2000s there was what could be said to be a pattern of lack of cooperation with correctional authorities and, on occasion, other inmates. There was the very serious offence involving the aggravated sexual assault on an inmate in a juvenile detention centre in 1996 and of course the manslaughter in 1995. The Defendant has served sentences and parole in relation to those crimes. I accept the Defendant's submission that the "pattern", to the extent one can be gleaned from the material tendered, is of improved general behaviour and cooperation. A feature of the New South Wales Department of Corrective Services Case Notes, although not complete and clearly selectively extracted by the Plaintiff to use in support of its application, indicates a reasonable level of cooperation and openness regarding his circumstances.
The report of Dr Parker and the Risk Management Report of Ms Flatley have been carefully considered and taken into account but have not persuaded me that they, in combination with the other supporting documentation, show the necessary level of risk.
Despite the application being filed in December 2017, there is nothing in the case notes and records that deals with the offender's conduct under parole supervision after August 2017. At that time, what the records indicate is a reasonable level of cooperation and that the Defendant was well integrated into the community including on occasion presenting with his children who were in his care during school holidays.
Having conducted a preliminary hearing, including the benefit of thorough, detailed and intelligent written and oral submissions provided on behalf of both the Plaintiff and the Defendant, I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
Accordingly, I dismiss the application.
[5]
Orders:
1. The summons is dismissed.
2. The Plaintiff is to pay the Defendant's costs.
[6]
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 March 2018
The primary object of the Act is "to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community" (s 3(1)). Another object is to encourage such offenders to undertake rehabilitation. Section 9(2), inserted by the amending legislation, also requires the court to consider the safety of the community as a "paramount consideration" when determining whether an ESO should be granted
Section 10A provides for the discretion to make an ISO if certain pre-requisites are satisfied:
10A Interim supervision order
The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court:
(a) that the offender's current custody or supervision will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
Section 7(4) provides:
7 Pre-trial procedures
……..
(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) 2 registered psychologists, or
(iii) 1 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.
Section 5B provides as follows:
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.
Regard must be had to s 5D when determining the risk
5D Determination of risk
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.
In making the determination of an application for an ESO, section 9 must be considered. It provides:
9 Determination of application for extended supervision order
(1) The Supreme Court may determine an application for an extended supervision order:
(a) by making an extended supervision order, or
(b) by dismissing the application.
(2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.
(2A) (Repealed)
(3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant:
(a) (Repealed)
(b) the reports received from the persons appointed under section 7 (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) 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,
(e2) the likelihood that the offender will 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 earlier 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.
(4) (Repealed)
Obviously, by its terms, the legislation provides a discretion, not an obligation, to make such an order. The decision is an evaluative one to be taken by the Court according to the circumstances of a particular case and having regard to the primary objects of the Act. In State of New South Wales v Anderson [2015] NSWSC 1515 at [30], Hamill J held:
[30] … However, the legislation provides the Court with a "true discretion" (note the use of the word "may") and that discretion must be exercised judicially and in the light of all of the information before the Court. It must be exercised in the light of the primary objective of the Act (to protect the community) and its secondary objective (to promote an offender's rehabilitation).