Published by Geoff Harrison | 5 October 2023
Under the Crimes (High Risk Offenders) Act 2006 the Supreme Court can extend an offender's custodial sentence or supervision 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 or under supervision. The applications for any such order must not be made until the offender's last 9 months of custody or supervision and if made, it can be in place for up to 5 years from the date of commencement.
The court is also able to impose further restrictions upon offenders through the Crimes (Serious Crimes Prevention Orders) Act 2016. The court can make such orders to protect the public even if a person has been acquitted of a serious crime. The orders that can be imposed are extremely wide and may include prohibitions, restrictions, requirements and other provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities. The order can be put in place for a period of up to 5 years. There are limitations or prohibitions on the orders that can be made, such as a requirement to answer questions etc. as per s6 below.
Second Reading Speeches:
Cases:
NSW Police Force v Alameddine [2023] NSWSC 577 (re Serious Crimes Prevention Orders)
Commissioner of Police NSW Police Force v Meehan [2022] NSWSC 1592 (re Serious Crimes Prevention Orders)
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Extracted Legislation Crimes (High Risk Offenders) Act 2006:
CRIMES (HIGH RISK OFFENDERS) ACT 2006 - SECT 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.
CRIMES (HIGH RISK OFFENDERS) ACT 2006 - SECT 5C
Making of continuing detention orders--unacceptable risk
The Supreme Court may make an order for the continued detention of a person (a
"continuing detention 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 detained offender or supervised offender (within the meaning of section 13B), and
(c) an application for the order is made in accordance with section 13B, and
(d) the Supreme 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.
CRIMES (HIGH RISK OFFENDERS) ACT 2006 - SECT 5I
Application for extended supervision order
(1) An application for an extended supervision order may be made only in respect of a supervised offender.
(2) A
"supervised offender" is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's
"current custody or supervision" )--
(a) while serving a sentence of imprisonment--
(i) for a serious offence, or
(ii) for an offence of a sexual nature, or
(iii) for an offence under section 12, or
(iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or
(b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.
(3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole.
CRIMES (HIGH RISK OFFENDERS) ACT 2006 - SECT 6
Requirements with respect to application
(1) An application for an extended supervision order against an offender may not be made until the last 9 months of the offender's current custody or supervision.
(3) An application must be supported by documentation--
(a) that addresses each of the matters referred to in section 9 (3), and
(b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a serious offence.
(4) An application may indicate the kinds of conditions (in addition to the condition referred to in section 11 (2)) that are considered to be appropriate for inclusion under section 11 in the event that an extended supervision order is made.
CRIMES (HIGH RISK OFFENDERS) ACT 2006 - SECT 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.
(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--
(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) In determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily).
CRIMES (HIGH RISK OFFENDERS) ACT 2006 - SECT 10
Term of extended supervision order
(1) An extended supervision order commences when it is made, or when the offender's current custody or supervision expires, whichever is the later.
(1AA) However the Supreme Court may, if an extended supervision order is made in proceedings on an application for a continuing detention order, defer the operation of an extended supervision order for a period of up to 7 days (the
"deferral period" ) if--
(a) the Court considers that it is necessary to detain the offender for the deferral period to enable arrangements to be made for supervision of the offender in the community, and
(b) it does not appear to the Court that an interim detention order can be made for the interim detention of the offender.
(1AB) On the deferral of the operation of an extended supervision order, the Supreme Court may order that the offender concerned be detained for a specified period (not exceeding the deferral period) after the offender's current custody expires.
(1AC) As soon as practicable after making an order under subsection (1AB) the Supreme Court must issue a warrant for the committal of the offender for the specified period after the offender's current custody expires.
(1AD) A warrant under subsection (1AC) is sufficient authority for the offender to be kept in custody in accordance with the terms of the warrant.
(1A) An extended supervision order expires at the end of--
(a) such period (not exceeding 5 years from the day on which it commences) as is specified in the order, or
(b) if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended.
(2) An offender's obligations under an extended supervision order are suspended while the offender is in lawful custody, whether under this or any other Act or law.
(3) Nothing in this section prevents the Supreme Court from making a second or subsequent extended supervision order against the same offender.
CRIMES (HIGH RISK OFFENDERS) ACT 2006 - SECT 13B
Application for continuing detention order
(1) An application for a continuing detention order may be made only in respect of--
(a) a detained offender, or
(b) a supervised offender.
(2) A
"detained offender" is an offender who, when the application for a continuing detention order is made, is in custody (referred to in this Part as the offender's
"current custody" )--
(a) while serving a sentence of imprisonment--
(i) for a serious offence, or
(ii) for an offence of a sexual nature, or
(iii) for an offence under section 12, or
(iv) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment (whether under a law of this State or another Australian jurisdiction) referred to in subparagraph (i), (ii) or (iii), or
(b) under an existing continuing detention order, emergency detention order or interim detention order.
(3) An application for a continuing detention order in respect of a detained offender may not be made more than 9 months before--
(a) the end of the offender's total sentence, or
(b) the expiry of the existing continuing detention order,
as appropriate.
(4) A
"supervised offender" is an offender who, when the application for a continuing detention order is made, is an offender in lawful custody or under supervision--
(a) under an extended supervision order or an interim supervision order who--
(i) has been found guilty of an offence under section 12 in respect of that order, or
(ii) because of altered circumstances, poses an unacceptable risk of committing a serious offence if the continuing detention order is not made, or
(b) whose obligations under an extended supervision order or an interim supervision order have been suspended, or
(c) under an interim detention order.
(5) An application in respect of a supervised offender who is serving a sentence of imprisonment may not be made more than 9 months before the end of the person's total sentence.
(6) The Supreme Court must not make a continuing detention order on an application referred to in subsection (4) (a) (ii) unless it is satisfied that circumstances have altered since the making of the extended supervision order or interim supervision order and those altered circumstances mean that there is an unacceptable risk of the offender committing a serious offence if the continuing detention order is not made.
(7) Without limiting the matters that the Supreme Court may take into account for the purposes of subsection (6), it may take into account the failure to comply, or an allegation that the supervised offender has failed to comply, with any requirement of an extended supervision order or interim supervision order.
CRIMES (HIGH RISK OFFENDERS) ACT 2006 - SECT 14
Requirements with respect to application
(3) An application for a continuing detention order must be supported by documentation--
(a) that addresses each of the matters referred to in section 17 (4), and
(b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious offence.
(4) An application may indicate the kinds of conditions that are considered to be appropriate for inclusion under section 11 in the event that an extended supervision order is made.
CRIMES (HIGH RISK OFFENDERS) ACT 2006 - SECT 17
Determination of application for continuing detention order
(1) The Supreme Court may determine an application under this Part for a continuing detention order--
(a) by making an extended supervision order, or
(b) by making a continuing detention order, or
(c) by dismissing the application.
(2) In determining whether or not to make a continuing detention order or extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.
(4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant--
(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.
(4A) To avoid doubt, section 11 (2) applies to an extended supervision order made under this section.
(5) In determining whether or not to make a continuing detention order, the Supreme Court is not to consider the ability to take action for a breach of the order in relation to whether there is an unacceptable risk of the offender committing further serious offences.
CRIMES (HIGH RISK OFFENDERS) ACT 2006 - SECT 18
Term of continuing detention order
(1) A continuing detention order--
(a) commences when it is made, or when the offender's current custody expires, whichever is the later, and
(b) expires at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order.
(1A) Despite subsection (1), a continuing detention order made on application under this Part in respect of a supervised offender (within the meaning of section 13B (4)) who is not in custody commences when it is made and expires at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order.
(2) An offender's custody under a continuing detention order is suspended while the offender is in lawful custody under any other Act or law, but that suspension does not affect the expiry date of the order.
(3) Nothing in this section prevents the Supreme Court from making a second or subsequent continuing detention order against the same offender.
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CRIMES (SERIOUS CRIME PREVENTION ORDERS) ACT 2016 - SECT 5
Making of serious crime prevention orders
(1) An appropriate court may, on the application of an eligible applicant, make an order (a
"serious crime prevention order" ) against a specified person if--
(a) in the case of a natural person--the person is 18 years old or older, and
(b) the court is satisfied that--
(i) the person has been convicted of a serious criminal offence, or
(ii) the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence (including by reason of being acquitted of, or not being charged with, such an offence), and
(c) the court is satisfied that there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.
(2) If the ground relied on for an application for a serious crime prevention order against a person is that the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence by reason of an acquittal, the application must include the following information--
(a) the serious criminal offence of which the person was acquitted,
(b) the court in which the offence was tried,
(c) the date on which the person was acquitted.
(3) Unless the appropriate court orders otherwise, the applicant must serve a copy of the application on the person against whom the serious crime prevention order is sought at least 14 days before the hearing date for the application.
(4) The person against whom a serious crime prevention order is sought and any other person whose interests may be affected by the making of the order may appear at the hearing of the application and make submissions in relation to the application.
(5) In determining an application for a serious crime prevention order, the court may admit and take into account hearsay evidence despite any rule relating to the admission of hearsay evidence (whether under the Evidence Act 1995 or otherwise) if--
(a) the court is satisfied that the evidence is from a reliable source and is otherwise relevant and of probative value, and
(b) the person against whom the order is sought to be made has been notified of, and served with a copy of, the evidence before its admission.
(6) The applicant must ensure that a serious crime prevention order is served (whether by the applicant or another person) on the person against whom it is made. The order must be served by means of personal service.
CRIMES (SERIOUS CRIME PREVENTION ORDERS) ACT 2016 - SECT 6
Content of serious crime prevention order
(1) A serious crime prevention order may contain such prohibitions, restrictions, requirements and other provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.
(2) However, a serious crime prevention order cannot contain provisions that require a person--
(a) to answer questions or provide information orally, or
(b) to answer questions, or to provide documents or other information, that are subject to client legal privilege (legal professional privilege), or
(c) to disclose protected confidences (within the meaning of Division 1A of Part 3.10 of the Evidence Act 1995 ), or
(d) to provide documents or other information that is held by the person in confidence as part of a banking business unless--
(i) the person to whom the confidence is owed has consented, or
(ii) the order specifically requires the provision or production of the documents or other information concerned (or documents or other information of the kind concerned), or
(e) to answer questions, or to provide documents or other information, that would result in a disclosure prohibited by a provision of another Act (other than the Evidence Act 1995 ).
(3) Without limiting subsection (2), an answer given, or document or other information provided, by a person in compliance with a requirement of a serious crime prevention order (the
"compelled evidence" ) is not admissible as evidence against that person in civil or criminal proceedings other than--
(a) proceedings for an offence against section 8, or
(b) proceedings in which the person has adduced the compelled evidence.
CRIMES (SERIOUS CRIME PREVENTION ORDERS) ACT 2016 - SECT 7
Duration of serious crime prevention order
(1) A serious crime prevention order--
(a) takes effect when it is served on the person against whom it is made or on such later date as may be specified in the order, and
(b) once it takes effect, has effect for the period specified in the order.
(2) The period specified in a serious crime prevention order for its duration must not exceed a period of 5 years.
CRIMES (SERIOUS CRIME PREVENTION ORDERS) ACT 2016 - SECT 8
Offence: contravention of serious crime prevention order
A person against whom a serious crime prevention order is in effect must not contravene the order.
Maximum penalty--
(a) in the case of a corporation--1,500 penalty units, or
(b) in the case of a natural person--300 penalty units or imprisonment for 5 years, or both.
"serious crime related activity" means anything done by a person that is or was at the time a serious criminal offence, whether or not--
(a) the person has been charged with the offence, or
(b) if charged, the person--
(i) has been tried, or
(ii) has been tried and acquitted, or
(iii) has been convicted (even if the conviction has been quashed or set aside).
"serious criminal offence" has the same meaning as in the Criminal Assets Recovery Act 1990 .
CRIMINAL ASSETS RECOVERY ACT 1990 - SECT 6
Meaning of "serious crime related activity"
(1) In this Act, a reference to a serious crime related activity of a person is a reference to anything done by the person that was at the time a serious criminal offence, whether or not the person has been charged with the offence or, if charged--
(a) has been tried, or
(b) has been tried and acquitted, or
(c) has been convicted (even if the conviction has been quashed or set aside).
(2) In this section--
"drug trafficking offence" means an offence under the following provisions of the Drug Misuse and Trafficking Act 1985 --
(a) section 23--offences relating to prohibited plants,
(b) section 23A--offences relating to enhanced indoor cultivation of prohibited plants in the presence of children,
(c) section 24--offences relating to the manufacture and production of prohibited drugs,
(d) section 24A--offences relating to the possession of precursors for the manufacture or production of prohibited drugs,
(e) section 25--offences relating to the supply of prohibited drugs,
(f) section 25A--offence of supplying prohibited drugs on an ongoing basis.
"serious criminal offence" means the following offences--
(a) the following offences referred to in the Poisons and Therapeutic Goods Act 1966 , section 45A, immediately before its repeal--
(i) the offence of supplying a drug of addiction or prohibited drug,
(ii) the offence of cultivating, supplying or possessing a prohibited plant,
(iii) the offence of permitting premises, as owner, occupier or lessee of the premises, to be used for the purpose of the cultivation or supply of a prohibited plant or of being concerned in the management of the premises,
(b) a drug trafficking offence,
(c) a prescribed indictable offence, or an indictable offence of a prescribed kind, that is of a similar nature to a drug trafficking offence, including in either case an offence under a law of the Commonwealth, another State or a Territory,
(d) an offence punishable by imprisonment for 5 years or more involving theft, fraud, obtaining financial benefit from the crime of another person, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery or homicide,
(e) an offence under the Firearms Act 1996 , section 50A, 51, 51B, 51BA or 51BB,
(f) a second or subsequent offence under the Drug Misuse and Trafficking Act 1985 , section 36Y,
(g) an offence under the following provisions of the Crimes Act 1900 --
(i) section 80D or 80E,
(ii) Part 3, Division 15 or 15A, other than section 91D(1)(b),
(iii) section 93T or 93TA,
(iv) section 197, to the extent the offence involves the destruction of or damage to property having a value of more than $500,
(v) section 308C, to the extent the offence involves the intention of committing an offence referred to in this paragraph or paragraphs (a)-(f),
(vi) section 308D or 308E,
(h) an offence under the law of the Commonwealth or a place outside this State, including outside Australia, that, if the offence had been committed in this State, would be an offence referred to in paragraphs (a)-(g),
(i) an offence of attempting to commit, or of conspiracy or incitement to commit, or of aiding or abetting, an offence referred to in paragraphs (a)-(h).
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