Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (High Risk Offenders) Act 2006 No 7 An Act to provide for the supervision and detention of high risk sex offenders and high risk violent offenders; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Crimes (High Risk Offenders) Act 2006. 2 Commencement This Act commences on the date of assent. 3 Objects of Act (1) The primary object of this 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. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. 4 Definitions (1) In this Act— adult means a person who is not a child. aggregate sentence of imprisonment has the same meaning as in the Crimes (Sentencing Procedure) Act 1999. Assessment Committee means the High Risk Offenders Assessment Committee established by section 24AB. business day means any day that is not a Saturday, Sunday or public holiday. child means a person who is under the age of 16 years. continuing detention order means an order for the detention of an offender made under section 5C. correctional centre has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. Corrective Services NSW has the same meaning it has in the Crimes (Administration of Sentences) Act 1999. corrective services officer means a correctional officer or community corrections officer within the meaning of the Crimes (Administration of Sentences) Act 1999. cumulative sentence of imprisonment means 2 or more sentences of imprisonment in which each sentence of imprisonment is served concurrently or consecutively, or partly concurrently and partly consecutively, with 1 or more of the other sentences of imprisonment. emergency detention order means an emergency order for the detention of an offender made under section 18CB. extended supervision order means an order for the supervision of an offender made under section 5B. interim detention order means an interim order for the detention of an offender made under section 18A. interim supervision order means an interim order for the supervision of an offender made under section 10A. Justice Health and Forensic Mental Health Network means the statutory health corporation of that name specified in Schedule 2 to the Health Services Act 1997. offence of a sexual nature—see section 5 (2). offender—see section 4A. qualified psychiatrist means a registered medical practitioner who is a fellow of the Royal Australian and New Zealand College of Psychiatrists. sentencing court, in relation to an offender serving a sentence of imprisonment, means— (a) the court by which the sentence was imposed, and (b) any court that heard an appeal in respect of that sentence. serious offence means— (a) a serious sex offence, or (b) a serious violence offence. serious sex offence—see section 5 (1). serious violence offence—see section 5A. supporting documentation, in relation to proceedings under Part 2 or 3, means the documentation referred to in section 6 (3) or 14 (3), as the case requires. (2) A reference in this Act to an offender in lawful custody includes, where used in relation to an offender who is subject to an extended supervision order or interim supervision order, a reference to the offender being in lawful custody during a period for which the offender is on remand for any offence. 4A Meaning of "offender" For the purposes of this Act, an offender is a person who— (a) is of or above 18 years of age, and (b) has at any time been sentenced to imprisonment (not including a suspended or quashed sentence) to be served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) following the person's conviction for a serious offence. 5 Definitions of "serious sex offence" and "offence of a sexual nature" (1) For the purposes of this Act, a serious sex offence means any of the following offences— (a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where— (i) in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and (ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises), (a1) an offence under section 61K or 66EA of the Crimes Act 1900, (b) an offence under section 37(2), 38, 86 (1) (a1), 111, 112, 113 or 114 (1) (a), (c) or (d) of the Crimes Act 1900 that has been committed with intent to commit an offence under Division 10 of Part 3 of the Crimes Act 1900, where the offence intended to be committed is punishable by imprisonment for 7 years or more, (b1) an offence against section 50BA of the Crimes Act 1914 of the Commonwealth, (b2) an offence against section 71.8 of the Commonwealth Criminal Code, (b3) an offence against section 271.4 or 271.7 of the Commonwealth Criminal Code, (b4) an offence against the Commonwealth Criminal Code, section 272.8, 272.10, 272.11, 272.12, 272.13, 272.14, 272.15, 272.15A, 272.19 or 273.7, (b5) an offence against the Commonwealth Criminal Code, section 471.22, 471.24, 471.25, 471.25A, 474.23A, 474.24A, 474.25B, 474.26, 474.27 or 474.27AA, and includes— (c) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious sex offence for the purposes of this Act, and (c1) an offence by a person that, at the time it was committed, was not a serious sex offence for the purposes of this Act but which was committed in circumstances that would make the offence a serious sex offence if it were committed at the time an application for an order against the person is made under this Act, and (d) any other offence that, at the time it was committed, was a serious sex offence for the purposes of this Act. (2) For the purposes of this Act, an offence of a sexual nature means any of the following offences— (a) an offence under Division 10 of Part 3 of the Crimes Act 1900, (a1) an offence under the Crimes Act 1900, Part 3, Division 10A, (b) an offence under section 37(2), 38, 111, 112 or 113 of the Crimes Act 1900 that has been committed with intent to commit an offence referred to in paragraph (a), (c) an offence under Division 15 or 15A of Part 3 of the Crimes Act 1900, (d) an offence under section 11G of the Summary Offences Act 1988, (e) an offence under section 91J, 91K, 91L or 91M of the Crimes Act 1900 in relation to the observing or filming of a child, (f) an offence under section 17 or 18 of the Child Protection (Offenders Registration) Act 2000, (g) an offence under section 13 of the Child Protection (Offenders Prohibition Orders) Act 2004, (h) an offence under section 12 of this Act, (h1) an offence against section 50BB, 50BC, 50BD, 50DA or 50DB of the Crimes Act 1914 of the Commonwealth, (h2) an offence against section 71.12 of the Commonwealth Criminal Code, (h3) an offence against the Commonwealth Criminal Code, section 272.9, 272.18, 272.20, 273.6 or 273A.1, (h4) an offence against the Commonwealth Criminal Code, section 471.19, 471.20, 471.26, 474.22, 474.22A, 474.23, 474.25A or 474.27A, (h5) an offence against section 233BAB of the Customs Act 1901 of the Commonwealth involving items of child pornography or child abuse material, and includes— (i) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence of a sexual nature for the purposes of this Act, and (j) any other offence that, at the time it was committed, was an offence of a sexual nature for the purposes of this Act. (3) In this section— Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth. 5A Definition of "serious violence offence" (1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person— (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (a1) an offence under the Crimes Act 1900, section 37(1) or (2), or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a) or (a1). (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. (2A) A reference in subsection (1) (a) to— (a) conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and (b) conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and (c) conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person. (3) A serious indictable offence is— (a) an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900) at the time that it was committed, or (b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious indictable offence within the meaning of the Crimes Act 1900 at the time that it was committed, or (c) an offence that, at the time that it was committed, was not a serious indictable offence but which was committed in circumstances that would make the offence a serious indictable offence if it were committed at the time an application for an order against the person is made under this Act. 5AA Relationship of Act with Terrorism (High Risk Offenders) Act 2017 (1) This Act does not limit the circumstances in which an order can be made in respect of an eligible offender under the Terrorism (High Risk Offenders) Act 2017. (2) In applying for a supervision or detention order under this Act or determining an application for the order— (a) supervision under an extended supervision order made under the Terrorism (High Risk Offenders) Act 2017 may be treated for the purposes of this Act as equivalent to supervision under an extended supervision order made under this Act, and (b) detention or custody under a continuing detention order made under the Terrorism (High Risk Offenders) Act 2017 may be treated for the purposes of this Act as equivalent to detention or custody under a continuing detention order made under this Act. Note— For example, a person may be treated for the purposes of this Act as being in custody or under supervision in the community if the person is being supervised or detained under an extended supervision order or continuing detention order made under the Terrorism (High Risk Offenders) Act 2017. (3) Accordingly, the Supreme Court may make a supervision or detention order under this Act by reference to supervision, detention or custody under an extended supervision order or continuing detention order made under the Terrorism (High Risk Offenders) Act 2017 if it could have made the order under this Act had the supervision, detention or custody been instead under an extended supervision order or continuing detention order made under this Act. (4) Subsections (2) and (3) extend to an extended supervision order or continuing detention order made under the Terrorism (High Risk Offenders) Act 2017 before the commencement of this section. (5) In this section— supervision or detention order under this Act means any of the following orders under this Act— (a) an extended supervision order, (b) an interim supervision order, (c) a continuing detention order, (d) an interim detention order, (e) an emergency detention order. Part 1A Supervision and detention of high risk offenders 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. 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. 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. 5E–5G (Repealed) Part 2 Extended supervision orders Division 1 Application for extended supervision order 5H State may apply for order The State may apply to the Supreme Court for an extended supervision order against an offender. 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) that is an aggregate sentence of imprisonment in relation to which at least 1 of the offences to which the aggregate sentence relates is an offence referred to in subparagraph (i), (ii) or (iii), or (v) for an offence, whether under a law of this State or another Australian jurisdiction, that is part of a cumulative sentence of imprisonment in relation to which at least 1 of the sentences of imprisonment comprising the cumulative sentence of imprisonment is a sentence of imprisonment referred to in subparagraph (i), (ii), (iii) or (iv), 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. (4) For the purposes of this section, if a court makes a federal recognizance release order in relation to a person in respect of a federal sentence imposed on the person by the court— (a) the order is taken to be part of the person's federal sentence, and (b) the person is taken to be serving a sentence of imprisonment for the period the order is in force. (5) In this section— Crimes Act 1914 means the Crimes Act 1914 of the Commonwealth. federal recognizance release order means an order under the Crimes Act 1914, section 20(1)(b). federal sentence has the same meaning as in the Crimes Act 1914. 5J (Repealed) 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. (2) (Repealed) (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. 7 Pre-trial procedures (1) An application for an extended supervision order must be served on the offender concerned within 2 business days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (2) The State must disclose to the offender such documents, reports and other information as are relevant to the proceedings on the application (whether or not intended to be tendered in evidence)— (a) in the case of anything that is available when the application is made, as soon as practicable after the application is made, and (b) in the case of anything that subsequently becomes available, as soon as practicable after it becomes available. Note— Section 21A (6) provides that the State must not disclose a victim statement to the offender unless the person who made the statement consents to the disclosure. (3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (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. 8 (Repealed) Division 2 Determination of application 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) 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). 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. Division 3 Interim supervision orders 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. 10B (Repealed) 10C Term of interim supervision order (1) An interim supervision order commences on the day fixed in the order for its commencement (or if no such day is fixed, as soon as it is made) and expires at the end of— (a) such period (not exceeding 28 days 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. (1AA) However, the Supreme Court may defer the operation of an interim supervision order in relation to an offender who is in current custody 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 interim 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 interim supervision order, and the offender's obligations under that interim supervision order, are suspended during any period the offender is in lawful custody, whether under this or any other Act or law. (2) An interim supervision order may be renewed from time to time, but not so as to provide for the supervision of the offender under such an order for periods totalling more than 3 months. (3) Any day or part of a day on which an interim supervision order is suspended does not count towards the 3-month limit referred to in subsection (2). Division 4 General 11 Conditions that may be imposed on supervision order (1) An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender— (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name, or (k) to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender's residential address, or (l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or (m) to comply with specified requirements in connection with the offender's access to and use of the internet, or (n) to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender. (2) An extended supervision order or interim supervision order must include a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services. 12 Breach of supervision order A person who fails to comply with the requirements of an extended supervision order or interim supervision order is guilty of an offence. Maximum penalty—500 penalty units or imprisonment for 5 years, or both. 13 Supervision order may be varied or revoked (1) The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State or the offender. (1A) The period of an order must not be varied so that the period is greater than that otherwise permitted under this Part. (1B) Without limiting the grounds for revoking an extended supervision order or interim supervision order, the Supreme Court may revoke an extended supervision order or interim supervision order if satisfied that circumstances have changed sufficiently to render the order unnecessary. (2) For the purpose of ascertaining whether to make such an application in relation to an extended supervision order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months. (3) The report must indicate whether the Commissioner considers the