Unjust Outcomes: Extended Supervision Orders in New South Wales

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NSW Supreme Court Justice Peter Hamill recently had to decide on whether an extended supervision order (ESO) should be revoked. The five year long order had been imposed upon Darryl Carr in 2009, but due to the way the supervision regime operates, it was still in force eleven years later.

His Honour noted Mr Carr had been sent to prison in 2001 for a number of “terrible crimes” he committed at the age of 16. However, since he’d finished serving the non-parole period of his sentence, he’d been in custody for around 10 to 11 years.

Last week was not the first time that Justice Hamill had been called upon to consider Carr’s ESO. Back in 2014, he was asked to make some variations to its conditions, and he remarked at the time that the operation of the ESO had been “punitive” in Carr’s case.

The justice said that the Wiradjuri man with a mild intellectual disability had now spent most of his adult life in prison, not for the “heinous” sexual crimes he committed in his teens, but due to multiple breaches of the order, which had no relation to his original offences.

The matter of Carr’s ESO returned to Justice Hamill on 26 May this year, as the state of NSW was now seeking to revoke it on the ground that he “no longer presents an unacceptable risk to the community”.

And at the time the justice released his findings, Carr was in gaol for an ESO breach, and he was about to be released in three days’ time.

The high risk regime

Under section 5B of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), the NSW Supreme Court may impose an ESO on an offender who has been sentenced over a serious crime if the court is “satisfied to a high degree of probability” that they pose “an unacceptable risk” of committing a similar crime.

The ESO regime allows high risk offenders that have either served time or been put on a noncustodial supervision order to then be placed under extended supervision and monitoring within the community.

The maximum time that an ESO can be applied is 5 years, however it can be renewed by the court on expiry. The reason Darryl Carr’s lasted 11 years is that every time the subject of an ESO is incarcerated the order is suspended and the remaining time starts ticking over again on release.

Section 11 of the Act lists a number of conditions that can be applied to an ESO. These include visits by Corrective Services officers at home and permitting them to access any computers, the wearing of an electronic monitoring device and living within a state-approved residence.

If the subject of an order breaches any of the conditions the NSW Supreme Court sees fit to impose, then they’re guilty of an offence under section 12 of the Act, which carries a maximum penalty of 5 years imprisonment and/or a fine of $55,000.

“Heinous crimes”

Mr Carr committed “three very serious sexual offences” at the age of 16 that saw him classed as a high risk offender. Two of these involved a 13-year-old girl that he and a co-offender sexually assaulted, while the third crime “involved aggravated sexual offending against his uncle”.

In February 2002, NSW District Court Judge Gregory Woods sentenced Carr to 8 years imprisonment, with a non-parole period of 4 years. And while he was eligible to be released at the end of the non-parole period, the offender was kept inside for the duration of his entire sentence.

This was despite the sentencing judge having found special circumstances, which meant that instead of his non-parole period being the statutorily required 75 percent of the overall head sentence, this was reduced due to the particulars surrounding his life.

Section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) stipulates that a parole period must not exceed a third of the time an offender has to remain in prison. However, if a judge finds special circumstances more time can be spent in the community under supervision.

The decision to keep Carr incarcerated after the non-parole period was, according to Justice Hammill, “the first of many administrative decisions that have meant that there appears to have been sparse focus on the rehabilitation of this man”.

Judicial deliberations

“Mr Carr has committed no serious offence or serious indictable offence since he was 16 years old,” his Honour found. “That is a period of 19 years.” And a number of risk assessment reports found that he “does not now present a high risk of sexual offending”.

The justice outlined that the breaches that have seen the man incarcerated for most of his adult life have nothing to do with his original offences, but rather concern “using illegal drugs”, along with “breaches of curfews, schedules of movements and accommodation conditions”.

A February 2020 assessment of Carr’s circumstances found that over the 11 years that the five year long ESO has applied, the First Nations man had been returned to custody 16 times, without having committed any further serious offences.

And a June 2019 report concluded that Carr’s situation was quite unique as he was classed as a high risk offender without having “committed any form of sexual assault as an adult”. And it further set out that he no longer posed a significant threat.

“A truly free man”

“Some of the reports suggest that the impact of the order and the way it is being enforced may be counterproductive to Mr Carr’s rehabilitation,” Justice Hamill remarked. “I am quite sure that it has been.”

And he added that section 13 of the Act allows the court to revoke the order at any time.

His Honour said that it could no longer be established that “Carr represents a high risk of offending”. And almost 20 years of not having done so was “a good indicator”.

Plus, the justice found that sending Carr back to prison on numerous occasions is “adversely impacting on his prospects of rehabilitation”.

It was for these reasons that his Honour ordered that pursuant to section 13 of the Act the extended supervision order made by Justice Hall on 14 August 2009 be revoked.

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About Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He has a focus on civil rights, drug law reform, gender and Indigenous issues. Along with Sydney Criminal Lawyers®, he writes for VICE and is the former news editor at Sydney’s City Hub.

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