This article was written by Trudie Cameron - Practice Director – Sydney
Trudie Cameron is the Practice Director of Criminal Law and is responsible for supervising and managing the New South Wales Criminal Law team in addition to her own caseload. Trudie is an accredited specialist in criminal law, practising exclusively in criminal and traffic law. Trudie defends clients charged with both state and commonwealth offences and appears on their behalf in...
Extended Supervision Orders
In NSW, the Crimes (High Risk Offenders) Act 2006 creates provision for the state to apply to the Supreme Court for an extended supervision order, or continuing detention order for certain offenders. When a person has been sentenced to jail for a serious sex offence or a serious violence offence and they are nearing the end of the sentence, the state can apply to the court to have them made subject to a continuing detention order. Such an order may require them to remain in custody beyond the end of their sentence or to be subject to further supervision by the Parole Board, beyond the end of their sentence. This order will only be made if the person poses an unacceptable risk if not kept in detention.
When can such an application be made?
An application for a continuing detention order must be made at least nine months before the end of the offender’s sentence. The application cannot be made after this.
When will the court grant an application?
The court will not necessarily make a continuing detention order just because an application has been made.
The Supreme Court will only make an extended supervision order if 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’.
The court will only make a continuing detention order if 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.
In determining whether it is satisfied with the above, there are certain things the court must consider. The community’s safety is the paramount consideration. There are a number of other considerations that the court must also have regard to, including:
• any reports or assessments that have been prepared in relation to the offender;
• any treatment or rehabilitation programs in which the offender had an opportunity to participate; and
• the offender’s criminal history.
Courts are generally more inclined to make an order where the offender:
• is a repeat offender;
• has previously re-offended soon after being released from custody;
• has committed a particularly heinous violence or a sexual offence;
• has refused to engage in any treatment for underlying conditions that relate to their offending.
What happens if the application is granted?
If the Supreme Court grants an application to make a continuing detention order, the offender will remain in custody until the end of that order, or until they are released on parole in accordance with that order.
If the Supreme Court grants an extended Supervision order, the person will be subject to supervision by the authorities for the period of the order. This may include particular requirements such as wearing an ankle bracelet, residing at a specified address, not going within a certain distance of a school or park, engaging in rehabilitation or not using illicit drugs.
Revocation Or Variation Of An Extended Detention Order
An application may be made to the Supreme Court to have an order varied or revoked. This application can be made by the state or by the person who is subject to the order.
The Supreme Court will review the grounds of the application and any evidence relied on. It will hear submissions from each party before deciding the application and determining whether to vary or revoke the extended detention order.
Appeals
When an order is made, a party can appeal against the decision to make the order to the Court of Appeal. An appeal can be filed either by the person who is subject to the Extended Detention Order, or by the state.
There is an automatic right of appeal against any determination of the Supreme Court to make, or refuse to make, a continuing detention order (or an emergency detention order). The appeal can be based on a question of law, a question of fact or both.
If you require any information on extended supervision orders or any other legal matter call us on 1300 038 223 or send us an email.