Background
The State sought a further two-year extended supervision order (ESO) for KW under the Crimes (High Risk Offenders) Act 2006 (NSW), following the expiry of his previous three-year ESO in July 2026. KW had been convicted of serious sexual offences, including index offences involving a 14-year-old girl. He had remained in the community without a further sexual-offence charge or reported predatory conduct during the prior ESO.
Two court-appointed experts assessed KW. Both considered his risk of a further serious sexual offence to be above average, although they differed on its management. The forensic psychiatrist considered continued supervision necessary; the neuropsychologist considered a less restrictive, supported step-down period appropriate. Relevant concerns included KW’s lack of targeted sexual-offending treatment, limited insight into child consent, mild intellectual disability, personality disorder and past substance-use disorder. Employment and a relationship with an adult partner were protective factors.
The Court’s Holding
Richardson J held, to the requisite high degree of probability, that KW posed an unacceptable risk of committing a further serious sexual offence if not kept under supervision. The Court placed particular weight on his absence of targeted sexual intervention, his continuing description to one expert of sexual activity involving a 13- or 14-year-old as a “grey” area, and evidence that abrupt withdrawal of ESO support would be destabilising.
The Court nevertheless rejected the State’s proposed two-year term. It made a one-year ESO under ss 5B and 9(1)(a), with conditions under s 11, as a supported step-down period. It declined to impose proposed conditions requiring broad notification of health practitioners, medication compliance notifications, and extensive information-sharing between treatment providers and supervising agencies. Those conditions were not appropriately tailored to KW’s current risk and could undermine therapeutic relationships, autonomy and the progress that reduced risk.
Key Takeaways
- An offender may present an unacceptable risk even where the risk of reoffending is not more likely than not.
- Three years without further sexual offending was an important protective consideration, but did not displace concerns about insight, treatment and destabilisation if supervision ended abruptly.
- ESO conditions must be tailored to present risk; unnecessarily intrusive treatment and information-sharing conditions may be counterproductive.
Why It Matters
The decision illustrates the Supreme Court’s discretionary, evidence-based approach to renewed high-risk offender supervision. Community safety remains paramount, but the duration and conditions of an ESO must reflect the particular offender’s current risk, treatment needs and demonstrated progress.
It also shows that expert agreement on the level of risk does not dictate identical supervision measures. A court may impose a shorter, less restrictive ESO where continued support is needed but more onerous controls would hinder rehabilitation or increase risk.