State of New South Wales v Donovan

1. [1]

   THE COURT: The State has appealed, as of right, pursuant to s 22 of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), from a reserved decision of the primary judge delivered eight days before the appeal was heard. The primary judge, McCallum J, refused an application for a continuing detention order pursuant to s 5G of the Act, but made an extended supervision order pursuant to s 5F of the Act: State of New South Wales v Donovan [2015] NSWSC 1254; [2015] NSWSC 1288.

2. [2]

   The respondent, Mr Brian James Donovan, has been in prison since his arrest on 26 October 2011 when he was charged with an offence of recklessly inflicting grievous bodily harm upon his former de facto partner, contrary to s 35(2) of the Crimes Act 1900 (NSW). He pleaded guilty to that offence and was sentenced to a term of imprisonment for 3 years and 9 months (reflecting a discount of 25% for his plea). A non-parole period of 2 years and 9 months was fixed, but Mr Donovan was not granted parole. The entirety of Mr Donovan’s sentence expired on 25 July 2015.

3. [3]

   The State sought orders detaining Mr Donovan in prison for a further 2 years, not for any crime committed by him, but because the Act authorises, in certain circumstances, the making of “continuing detention orders” to a class of offenders who have served their sentences of imprisonment in full. The Act also authorises the making of “extended supervision orders” which also curtail, but less drastically, the liberty of an offender in the community after he or she has served the entirety of a term of imprisonment.

4. [4]

   Since 25 July 2015, Mr Donovan has continued to be held in custody pursuant to a series of interim detention orders made under s 18B of the Act. An interim detention order must not exceed 28 days in duration, but may be renewed, so long as the total period of detention does not exceed 3 months: s 18C. There have been three interim detention orders made pursuant to s 18B. The first was made by Schmidt J, on 3 July 2015, for a period of 28 days commencing on the expiry of Mr Donovan’s sentence: State of New South Wales v Donovan [2015] NSWSC 877. The second was made by the primary judge on 19 August when judgment was reserved. It expired when her Honour’s judgment was given or on 17 September 2015, whichever was earlier (this order was made necessary by reason of the fact that the hearing before her Honour over two days took place only a week before the first interim detention order was to expire).

5. [5]

   The primary judge was not persuaded that the power to make a continuing detention order against Mr Donovan was enlivened. Instead, her Honour made an extended supervision order for a period of 5 years, which, in large measure, was not opposed. When judgment was delivered, very promptly, on 1 September, the primary judge renewed the interim detention order, pursuant to s 18C, for one further day in order to allow an orderly transition from custody to accommodation pursuant to the extended supervision order: State of New South Wales v Donovan (No 2) [2015] NSWSC 1288 at [14].

6. [6]

   The third interim detention order was made on 2 September 2015 by the President following the commencement of the State’s appeal: State of New South Wales v Donovan [2015] NSWCA 273. That order expired at noon on 9 September 2015. The President also stayed the operation of the extended supervision order made by the primary judge.

7. [7]

   This Court renewed the interim detention order, on the State’s application, when the appeal was heard. We were satisfied that there was power to make that order, because in circumstances where the same Act confers both a right of appeal and the power to make interim orders, that power must extend to making interim orders pending the determination of an appeal. We were satisfied that the exercise of the power was appropriate, in circumstances where (a) counsel for the State had forcefully challenged the conclusion of the primary judge that “there [was] no suggestion that [Mr Donovan] is likely to reoffend suddenly and catastrophically” but had not been fully heard prior to the expiry of the existing interim order, and (b) it was apparent that there should be an orderly transition from custody to supervised release, which would not be achieved by releasing Mr Donovan on the afternoon the appeal was heard, with the prospect of his being returned to custody if the State’s appeal succeeded.

8. [8]

   The Court has afforded the parties an extreme degree of expedition having regard to the importance of the issues at stake, namely, Mr Donovan’s liberty and the safety and protection of the community. We acknowledge at the outset the assistance by way of written submissions provided, with the materials, shortly prior to the hearing of the appeal, in circumstances which reflect a significant amount of urgent work by Ms Sharp and Ms Avery-Williams, who appeared for the State, and Mr Johnston, who appeared for Mr Donovan, and those in the Crown Solicitor’s Office and in the Legal Aid Commission who instructed them.

Legislative regime

1. [9]

   The Act as originally enacted was confined to “serious sex offenders”. The Minister told the Legislative Assembly that it related “to a handful of high-risk, hard-core offenders who have not made any attempt to rehabilitate whilst in prison”. The Minister added:

2. [10]

   The operation of the Act was broadened in 2013 by the Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW). The Act now also applies to “violent offenders” who are “high risk violent offenders”. Division 2 of Pt 1A of the Act deals with such offenders. It is in the following terms:

3. [11]

   It was common ground that Mr Donovan is a “violent offender”, by reason of his conviction for inflicting grievous bodily harm. Mr Donovan has a lengthy history of violence. He has a conviction for rape in 1994. But it was not contended that he would have fallen within the very limited category of serious sex offenders to whom the Act originally applied. The primary judge found, without strenuous opposition from Mr Donovan, that he fell within the relatively new category of “high risk violent offender”. (Although the amendments extending the operation of the Act were made after Mr Donovan’s conviction for inflicting grievous bodily harm, they apply to offences committed before the Act was amended: Sch 2 cl 11.)

4. [12]

   The finding that Mr Donovan was a “high risk violent offender” turned upon her Honour being satisfied to a high degree of probability that he would pose an “unacceptable risk” of committing a serious violence offence if, at the completion of his total term of sentence, he were not kept under supervision. Her Honour was so satisfied, and there is no appeal from that aspect of her decision. The manner in which the proceeding was conducted meant that it was not necessary for her Honour’s decision to address the different approaches which have been adopted to the meaning of “unacceptable risk”: cf Attorney General of New South Wales v McGuire [2015] NSWSC 152 at [41]-[44]. However, as will be seen below, both at first instance and on appeal the State relied on those approaches in support of its preferred construction of “adequate supervision” in s 5G(1).

5. [13]

   It is clear that the power to make an order under s 5F or s 5G is conditioned upon an offender being a high risk violent offender. That is to say, the power to make an extended supervision order – “extended” in the sense of extending beyond the term of imprisonment ordered in punishment of the crime – is premised upon the court being satisfied of an unacceptable risk of the offender committing a serious violence offence in the event that the offender is not kept under some degree of supervision. Section 11 authorises the court to attach conditions to an extended supervision order or interim supervision order, and sets out a wide range of possible conditions, including conditions as to reporting, residence, wearing electronic monitoring equipment, and not engaging in specified forms of conduct nor associating with particular people. The width of the power is well illustrated by the order made by the primary judge, to which reference is made later in these reasons.

6. [14]

   Section 5G goes further. Whereas the power to make an extended supervision order under s 5F is premised upon the court’s satisfaction of an unacceptable risk unless the offender is supervised in some way, the power to make a continuing detention order under s 5G requires the court to be satisfied that “adequate supervision will not be provided by an extended supervision order”. Even if so satisfied, s 5G(1) confers a discretionary power upon the Supreme Court to make a continuing detention order (“may, on application under this Act, make an order…”). It is convenient immediately to analyse some aspects of these provisions.

7. [15]

   First, it was common ground that s 5G(1) conferred a separate discretion upon the court to decline to make a continuing detention order, even if the court were satisfied that adequate supervision will not be provided by an extended supervision order. That distinction may be important for the purpose of an appeal. Appellate review of a decision not to make an order because of a failure to be satisfied that adequate supervision will not be provided by an extended supervision order is different from review of a discretionary decision not to make an order even though the court is satisfied of that fact. One is discretionary in the ordinary sense of the word; the other well answers the description given in Norbis v Norbis (1986) 161 CLR 513 at 518 by Mason and Deane JJ of the application of “a very general standard” which calls for “an overall assessment” in the light of a range of factors. The primary judge squarely rested her decision on not being satisfied that adequate supervision will not be provided by an extended supervision order: see at [112].

8. [16]

   The State submitted, without reference to authority, that appellate review was to be conducted in accordance with Warren v Coombes (1979) 142 CLR 531. Mr Donovan helpfully directed the Court to the statement by Keane and Holmes JJA (as their Honours formerly were) and Dutney J in Attorney-General (Qld) v Francis [2006] QCA 324; [2007] 1 Qd R 396 at [34] in respect of cognate legislation:

9. [17]

   That approach was followed at the appellate level in Attorney-General (Qld) v Lawrence [2014] QCA 220 at [25] and Attorney-General for the State of Queensland v Yeo [2010] QCA 69 at [42]. Those decisions are consistent with Nigro v Secretary to the Department of Justice [2013] VSCA 213; 304 ALR 535 and with the “substantial discretion” to which Gleeson CJ referred in Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575 at [19]. The same approach should apply here. Its principal significance in this appeal is that the primary judge saw the cross-examination of the State’s witnesses, especially Ms McCarroll, who favoured making a continuing detention order, and the independent experts, who did not.

10. [18]

    Secondly, the Act provides a lengthy list of mandatory relevant considerations in determining whether or not to make either form of order: ss 9(3) and 17(4). It will be necessary to return to these provisions in light of submissions made within ground 7 of the State’s appeal. The open-ended nature of the court’s assessment is confirmed by the fact that those sections also authorise the court to have regard “to any other matter it considers relevant”.

11. [19]

    Thirdly, the Act requires there to be a “preliminary hearing” on an application for a continuing detention order and obliges the court to make orders appointing at least two qualified psychologists or psychiatrists to conduct examinations of the offender for the purpose of furnishing reports to the court, and directing the offender to attend those examinations: s 15(4). That occurred in this case, and reports (and supplementary reports) were obtained from two forensic psychiatrists, Dr Samson Roberts and Dr Jeremy O’Dea. It was common ground that both men were well qualified to assess the central questions arising on the State’s application. Both men gave evidence before the primary judge.

12. [20]

    Fourthly, Div 2 of Pt 1A impinges upon the liberty to which an offender who has served his or her term of imprisonment is entitled. It does so in circumstances where “the Supreme Court is satisfied to a high degree of probability” that “the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision”. The premise of the power to curtail the liberty of an offender who has served the whole of the term of imprisonment is presupposed upon a court being very comfortably satisfied that supervision is required to prevent an unacceptable risk of committing a serious violence offence.

13. [21]

    Fifthly, s 5E(3) makes it clear that an unacceptable risk of committing a serious violence offence can be a risk which is less than 50%.

14. [22]

    Sixthly, there is an important textual distinction between s 5E and s 5G. Section 5E requires the satisfaction of an unacceptable risk of committing a serious violence offence. The state of satisfaction required by s 5G(1) is not that there is a risk that adequate supervision will not be provided by an extended supervision order but rather that adequate supervision will not be provided by an extended supervision order. That is to say, the power in s 5G presupposes an actual state of satisfaction by the Supreme Court not of the risk of something occurring in the uncertain future, but that something (namely, adequate supervision) will not be provided by an extended supervision order in the uncertain future.

15. [23]

    Seventhly, the onus lies on the State to prove that adequate supervision will not be provided by an extended supervision order.

16. [24]

    Eighthly, it is important to appreciate the different ways in which s 5E and s 5G operate. The state of satisfaction in s 5E(2) is the gateway to the power to make an order under s 5F or s 5G. That state of satisfaction is at a special level (“to a high degree of probability”), and applies to an assessment of likelihood (“unacceptable risk”) in the absence of any supervision. In contrast, the state of satisfaction in s 5G is at a lower level, and it applies not to any level of supervision, but to the level of supervision provided by the particular extended supervision order the court has in mind. To anticipate what follows, in those circumstances, there is real difficulty in “anchoring” the open-textured language of “adequate supervision” in s 5G(1) with the open-textured language of “unacceptable risk” in s 5E(2).

Mr Donovan’s background and offending

1. [25]

   Mr Donovan had pleaded guilty to recklessly inflicting grievous bodily harm. The element of recklessness was attributable to the fact that he had been drinking alcohol, heavily, prior to attacking his former partner in his mother’s house. Mr Donovan threatened to kill his former partner, kicked her repeatedly in the jaw, fracturing it, punched her in the eye and stabbed her in the chest with scissors. The appalling nature of Mr Donovan’s behaviour emerges from a statement of agreed facts, which was tendered before the sentencing judge and reproduced in full by the primary judge at [15]:

2. [26]

   Mr Donovan said that he could not remember what he had done because of his state of intoxication. The offence took place when Mr Donovan had been released from prison on parole under a program of home monitoring. At the time of his crime, he was some 10 weeks into that program.

3. [27]

   It was for that offence that Mr Donovan was sentenced to a period of imprisonment for 3 years and 9 months (reflecting a starting point of 5 years). The maximum sentence was 10 years’ imprisonment. There appears to have been no Crown appeal.

4. [28]

   Mr Donovan is now 45 years old, and has been in gaol for most of his adult life. The primary judge recorded that he had been born in Kempsey, and had lived as a child in Grafton in social housing. He had a supportive family. His father, who died in 2013, was a drug and alcohol counsellor within the local Aboriginal community. His mother gave evidence that she would like to have Mr Donovan live with her. Mr Donovan has two adult children with whom he has had little involvement.

5. [29]

   The State was critical of the lack of attention given by the primary judge to Mr Donovan’s past offending, and its seriousness. As noted above, her Honour reproduced the entirety of the agreed facts relating to his most recent offence. In light of the State’s criticism, it is appropriate to reproduce what her Honour said of Mr Donovan’s criminal history at [20]-[23]:

6. [30]

   The State advanced very detailed submissions as to Mr Donovan’s criminal background (some 14 pages of written submissions at first instance), and submitted on appeal that aspects of his criminality had been insufficiently recognised by the primary judge. It will be necessary to return to this below.

7. [31]

   The primary judge summarised the links between Mr Donovan’s criminality and alcohol and drugs as follows at [24]-[26]:

Evidence before the primary judge

1. [32]

   The primary judge addressed the construction of the Act at [37]-[56], to which it will be necessary to return having regard to some of the State’s grounds of appeal. It is sufficient here to note that the primary judge rejected the State’s submission to read additional elements into the statutory language of “adequate supervision”, such that a continuing detention order must be made unless extended supervision would “eliminate or substantially reduce the unacceptable risk of committing a serious violence offence”.

2. [33]

   Her Honour then summarised a great deal of the evidence under the heading “Evaluation of the risk posed by Mr Donovan” at [57]-[89]. Most of those paragraphs were directed to the State’s evidence to the effect that an extended supervision order would not provide adequate supervision. It is not necessary to summarise their detail. Her Honour then turned to the evidence given by Drs Roberts and O’Dea. Both dealt squarely with the need for Mr Donovan to remain abstinent from alcohol if he were released. Both accepted that Mr Donovan would highly likely re-offend if he became intoxicated with alcohol or some other drug. Central to the opinions of both men was the fact that Mr Donovan could be prescribed medication to facilitate abstinence. Both addressed the difficulty that Mr Donovan was contraindicated for Antabuse, because of a heart condition. They gave evidence about alternative prescriptions, and about managing the risk posed by the contraindication.

3. [34]

   The substance of her Honour’s summary of the expert evidence provided pursuant to the Act was as follows (at [92]-[101]):

4. [35]

   The State was critical of the focus given in these paragraphs to the poor prospects of rehabilitation of Mr Donovan in prison. The State submitted that the primary object of the Act was the safety and protection of the community, not the rehabilitation of the offender. However, the summary given by the primary judge in these paragraphs reflected the fact that both independent experts focussed on rehabilitation.

The dispositive reasoning of the primary judge

1. [36]

   Her Honour gave careful consideration to whether the State had established that an extended supervision order would not provide adequate supervision at [102]-[112]. Most of the grounds of appeal challenge aspects of that reasoning, which in its entirety was as follows:

The extended supervision order made by the primary judge

1. [37]

   The primary judge imposed an extended supervision order for a period of 5 years commencing 2 September 2015. The order involved some 49 numbered obligations, many of which turned upon the discretion of a Departmental Supervising Officer or “DSO”. These conditions are annexed to these reasons. The obligations imposed included the following.

2. [38]

   Electronic monitoring: Mr Donovan must wear electronic monitoring equipment as directed by his DSO. This equipment consists of a securely fitted anklet, known as a “Tracker”, which identifies its wearer’s location using radiofrequency global positioning system and global system for mobile technologies. The system is programed to send an alert to the “external and electronic monitoring group within Corrective Services NSW in the event that an offender leaves the designated premises during a period of curfew or otherwise than in accordance with a nominated scheduled movement”. There was evidence that if Mr Donovan attempted to remove the anklet, it would be detected.

3. [39]

   Schedule of movements: Mr Donovan must provide if asked a weekly plan of his movements three days before it is due to start, must give 24 hours’ notice of any change in the schedule of movements and must not deviate from that schedule except in an emergency.

4. [40]

   Accommodation: Mr Donovan must live at an approved address and must be at that approved address between 9 pm and 6 am each day unless some other arrangement is approved by his DSO. Mr Donovan must not permit any other person to enter and remain, or stay overnight, at that address without the DSO’s prior approval.

5. [41]

   Drugs and alcohol: Mr Donovan must not possess or use alcohol or illegal drugs or prescription medication other than as prescribed, must submit to drug and alcohol testing as directed by the DSO, must not enter any licensed premises without the DSO’s approval, and must attend and participate in programs and courses for drug and alcohol rehabilitation as directed by the DSO. He must not discharge himself from such programs and courses without the prior approval of the DSO. He must not associate with people who are consuming or are under the influence of illegal drugs or alcohol. If Mr Donovan starts a relationship, he is required to tell his DSO, who in turn may wish to tell that person about Mr Donovan’s criminal history.

6. [42]

   Weapons: Mr Donovan must not possess or use any firearm, and must not carry on his person at any time after leaving his residence any knife, scissors or stabbing instrument without reasonable excuse.

7. [43]

   Communications: Mr Donovan must give his DSO a list of all communication devices, including phones, tablets, and computers, must obey any reasonable directions about the use of that equipment, and must authorise his telephone and internet service providers to share information with his DSO about his accounts.

8. [44]

   Search and seizure: Mr Donovan must submit to a wide range of searches and inspections of his body and premises by his DSO and must allow his DSO to seize anything which, inter alia, the DSO reasonably expects will compromise his compliance with the extended supervision orders or which his DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of committing a serious offence.

9. [45]

   Appearance: Mr Donovan must not change his name, or use any other name, must not change his appearance without the approval of his DSO, and must let Corrective Services photograph him.

10. [46]

    Medical intervention: Mr Donovan must advise his DSO of any healthcare practitioners that he consults and agree to those practitioners sharing information, including reports on his progress and information he has told them, with each other and with his DSO. That information is to be shared between all agencies involved in his supervision. If Mr Donovan ceases to take medication he is to notify the DSO within 24 hours.

11. [47]

    Obviously enough, the regime imposed by the primary judge over the next five years very considerably curtails Mr Donovan’s liberty and privacy. In large measure, the extent to which his liberty and privacy will be curtailed will depend upon decisions made by the DSO. Given the lengthy term of the order, it is appropriate that there be a measure of discretion.

12. [48]

    The regime has three other important features. Section 12 of the Act provides that a person who fails to comply with the requirements of an extended supervision order is guilty of an offence, whose maximum penalty is imprisonment for 5 years or 500 penalty units, or both. Moreover, a person who is found guilty of an offence under s 12 becomes a “supervised violent offender” and may be made subject to a further application for a continuing detention order pursuant to s 13C. Finally, Div 3A confers power upon the court to make “emergency detention orders” for the detention of an offender who is the subject of an extended supervision order, or an interim supervision order, who, because of altered circumstances, cannot be provided with adequate supervision, and who, without adequate supervision, poses an imminent risk of committing a serious offence.

13. [49]

    We turn to the grounds of the State’s appeal.

Ground 1 – construction of “adequate supervision”

1. [50]

   We address the three aspects of this ground of appeal in the order they were advanced by the State. The first was that her Honour had misapprehended the State’s submissions, the second was that her Honour erred in relying on the principle of legality in construing the Act, and the third (and most important) was that her Honour erred in failing to adopt the State’s construction of “adequate supervision”.

2. [51]

   The first aspect was that the primary judge misapprehended the submissions made on the construction of s 5G(1). The State claimed that this was apparent from the fact that her Honour, after dealing with (and rejecting) one formulation advanced by the State, turned, at [56], to what was described as “another formulation” contended for by the State. The criticism is unfounded.

3. [52]

   In writing, the State criticised her Honour’s identification of the State’s submission at [41] which was as follows:

4. [53]

   However, that paragraph was an accurate (indeed near verbatim) synopsis of paragraph 38 of the State’s written submissions at first instance dated 30 July 2015, which was as follows:

5. [54]

   It became obvious that the State has varied its approach to construction. This was most obvious in respect of the submissions advanced on the meaning of “unacceptable risk”. At first instance, the State’s submission was that “[t]he approach by Hoeben J [sic] [in Attorney General of New South Wales v McGuire [2015] NSWSC 152] (adopting R A Hulme J in Thomas) accords with the State’s submission as to the correct construction of the phrase” (Black 11T). The State added that “[a] balancing exercise of the sort contemplated by Davies J [in Attorney General of New South Wales v McGuire [2013] NSWSC 1862] is accordingly not within the intendment of the Act” (Black 12E). Mr Donovan at first instance accepted that it was likely that the Court would find that he was a “high risk violent offender” and noted that accordingly it would not be necessary for the court to resolve the differences recorded by Hoeben CJ at CL in McGuire, although it was “conceded that the approach of R A Hulme J in State of NSW v Thomas, preferred by Hoeben J [sic], is more consistent with the scheme of the Act” (Black 73F).

6. [55]

   Unsurprisingly, given the absence of any issue, her Honour did not analyse the competing constructions of “unacceptable risk” in s 5E(2).

7. [56]

   On appeal, the State adopted a different stance. The State contended that “a balancing exercise should be conducted, but not quite the one identified by Davies J” (transcript, 9 September 2015, p 25). It brought to the Court’s attention the most recent decision on “unacceptable risk”, State of New South Wales v Mackey (No 2) [2015] NSWSC 1153, where (different) counsel appearing for the State had submitted that the approach adopted by RA Hulme J and Hoeben CJ at CL be followed. There followed this exchange:

8. [57]

   The foregoing is relevant not merely to demonstrate that at different times in this litigation the State has advanced differently formulated constructions, and that the criticism made of the primary judge’s reasons at [41], which after all merely identified one way in which the State advanced its case – in a way that was scrupulously accurate – was unfounded. It also bears upon whether this Court should attempt to resolve the divergent decisions at first instance in circumstances where the issue arises at best peripherally.

9. [58]

   The second aspect of this ground was the State’s criticism of reliance by the primary judge on the (so-called) principle of legality (at [52]-[55]). There is no occasion in this urgently expedited judgment to explore the limitations of some uses of this “principle”; cf Independent Commission Against Corruption v Cunneen [2015] HCA 14; 89 ALJR 475 at [88]. It is sufficient to proceed on the basis that an offender’s right to personal liberty after completing the term of imprisonment for which he or she has been sentenced was accurately described as “the most elementary and important of all common law rights”, which “cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes”: Williams v The Queen (1986) 161 CLR 278 at 292, a passage cited by the primary judge.

10. [59]

    Against this, it was submitted that her Honour failed to have regard to what had been said in Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [44], where this Court said that the “presumption is weakened in the present context and would not prevail over the clear and explicit language of the statute with its clearly stated protective and rehabilitating objects”. There are at least four difficulties with this submission.

11. [60]

    The first is that the passage in Tillman has been taken out of context. The question considered in Tillman was whether interim relief should be ordered. The Court expressly referred to the limitations in the Act confining interim orders to a 28 day maximum with no more than 3 months in total: at [44]. The succeeding paragraphs likewise referred to interim applications in terms (see [45] and [46]). Tillman is not to be read as saying that the principle of legality has no operation when a power to detain a person for a period of two years is being construed.

12. [61]

    The second is that it is one thing for the clearly worded statements of protection of the community on an interim basis to override a fundamental right such as the liberty of a subject. But the ultimate question in this appeal is whether the primary judge erred in failing to be satisfied that adequate supervision would not be provided by the 5 year extended supervision order in fact imposed. The open-textured word “adequate” is an unlikely candidate for the requisite “clear and explicit language”. Although the context was very different, in Goodman v Windeyer (1980) 144 CLR 490 at 502, Gibbs J said that “the words ‘adequate’ and ‘proper’ are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards”. That passage was repeated in Singer v Berghouse (1994) 181 CLR 201 at 211 and in Vigolo v Bostin [2005] HCA 11; 221 CLR 191 at [74].

13. [62]

    The third is that the State’s submission is contrary to appellate authority on cognate legislation, including Nigro v Secretary to the Department of Justice [2013] VSCA 213; 304 ALR 535 at [68].

14. [63]

    The fourth is that in any event the primary judge addressed the State’s submission squarely, and rejected it. Her Honour said at [56]:

15. [64]

    That paragraph is to be read with what her Honour said at [63]:

16. [65]

    The State accepted that the second passage at [63] accurately encapsulated the statutory test (its complaint was that “her Honour didn’t go on to evaluate the kind and degree of risk”: transcript, 9 September 2015, p 18, and see ground 2), but maintained that the first passage at [56] did not.

17. [66]

    We turn now to the State’s principal submission within this ground of appeal. It had two strands. It was put that “supervision can only be regarded as ‘adequate’ if it is effective to reduce the risk of serious violent offending such that the offender no longer poses an unacceptable risk” (emphasis in original). The State added “[i]n other words, the supervisory framework must bring the risk within an acceptable level in order to tolerate the offender being in the community”.

18. [67]

    It was also repeatedly said that the State’s construction “anchored” “adequate supervision” with “unacceptable risk”, which was the occasion for this Court to resolve the conflicting decisions on “unacceptable risk”. Hence the following exchange:

19. [68]

    Both strands of the State’s principal submission on construction should be rejected. We deal with them in reverse order.

20. [69]

    Ordinary principles of construction confirm that “adequate supervision” is not “anchored” to “unacceptable risk” in the way submitted. Both terms entail evaluative judgments, but they serve different purposes and operate in different ways.

21. [70]

    It has already been observed that a different level of satisfaction is required by s 5E than is required by s 5G, that s 5E refers to the absence of any extended supervision while s 5G refers to the particular extended supervision order, that s 5G requires the State to establish the absence of a particular state of affairs (“adequate supervision”) while s 5E requires the State to establish merely a risk of a particular state of affairs. Those are strong textual indications that the words are not “anchored” together in the way submitted by the State.

22. [71]

    Further, the State’s submission is inconsistent with the discretionary aspect flowing from the opening words of s 5G (“The Supreme Court may, on application under this Act, make an order ...”). The substance of the State’s submission was that a continuing detention order must be made unless there ceased to be an unacceptable risk, because that risk had been eliminated or substantially reduced by reason of the adequate supervision afforded by the extended supervision order. That submission cannot stand with the undoubted discretion to make an order. (The likelihood or unlikelihood of the discretion being exercised matters not for present purposes; the point is that its presence undercuts the State’s submission.)

23. [72]

    We turn to the challenge to the rejection by the primary judge of the State’s submissions which were directed to imposing a gloss on open-textured statutory language, to the effect that “adequate supervision” would eliminate or substantially reduce the risk of serious violent offending.

24. [73]

    Asking whether an extended supervision order eliminates or substantially reduces an unacceptable risk provides limited assistance in answering the question whether such an order affords “adequate supervision”. It does not assist to replace one open-textured term “adequate supervision” by two (“substantial” and “unacceptable”). There is no textual basis for doing so, once it is appreciated that the “unacceptable risk” in s 5E is the risk of a serious violence offence were there no supervision at all, while the “adequate supervision” in s 5G turns on an assessment of the particular extended supervision order which is proposed.

25. [74]

    Another way of refuting the State’s submission is to observe that it sought to give legal meaning to “adequate supervision” by reference to other open-textured terms: “substantially reduce” what would otherwise have been an “unacceptable risk”. This Act is replete with definitions which interact with each other (notably, the definitions of “violent offender”, “high risk violent offender” and “extended supervision order”). However, the Act has also introduced two important undefined concepts, “unacceptable risk” and “adequate supervision”, into the key provisions. They are concepts which are apt to involve a wide-ranging evaluative assessment. It is unlikely in the extreme that there is the neat relationship between those two concepts posited by the State’s construction. If there were, why did not this carefully drafted Act simply say so?

26. [75]

    Her Honour was, with respect, correct to reject the State’s submissions on construction. The Act takes the intractable problem of an offender who has served his or her term of imprisonment but of whom there are fears of re-offending, and casts responsibility on the courts to determine whether supervision extending into his or her period of liberty will provide “adequate supervision”. By using such language in the context of this Act, the Legislature is to be taken to be leaving it to the courts to make an evaluative assessment. It should be applied in its terms.

27. [76]

    That said, the question of adequate supervision will involve a consideration of the likelihood of any offending conduct during the period of supervision, and, if so, its likely gravity. So to do is, as the primary judge recognised, in accordance with the primary purpose of the Act, being the safety and protection of the community.

28. [77]

    In short, we agree with the statement of principle by the primary judge at [56]:

29. [78]

    Finally, once it is appreciated that “adequate supervision” is not “anchored” to “unacceptable risk” in the way in which the State contended, there is no occasion in this appeal, given its urgency, and the different approaches adopted by the State at first instance and on appeal, to express any views on the divergence of approach as to “unacceptable risk” in s 5E.

Ground 3 – failure to give primacy to the legislative object

1. [79]

   The State submits, by ground 3 of its appeal, that the primary judge failed to give primacy to the legislative object in s 3(1). Section 3 of the Act provides:

2. [80]

   The Act is to be construed in accordance with its text and so as to promote its purpose or objects. That said, the State, properly, conceded that s 3(1) cannot mean literally what it says, for there will always be some level of risk to the safety and protection of the community.

3. [81]

   There is no basis for construing the general object expressed in s 3(1) to impact upon the finely calibrated language in Div 2 of Pt 1A. The position resembles that to which Gleeson CJ referred in Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [6]:

4. [82]

   In Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; 248 CLR 619 at [40] it was said, by reference to Carr, that:

5. [83]

   The expressed primary purpose of the Act is amply fulfilled by the fact that it confers power to curtail, and in relatively extreme circumstances deny, liberty to an offender who has served the entirety of his or her sentence. The precise circumstances when the powers to make an extended supervision order or a continuing detention order may be exercised, and the terms of those orders, are governed by the particular provisions conferring such power and the interrelationship between them. As already noted, the operative provisions are nuanced, including by expressly referring to different levels of satisfaction.

6. [84]

   That said, as noted above, and as recognised by the primary judge, the evaluative judgment as to whether an extended supervision order will provide adequate supervision will have regard to the safety and protection of the community, and therefore necessarily involve an assessment of the likelihood of re-offending and the consequences of any re-offending.

7. [85]

   As articulated in the State’s submissions, this ground was directed at least predominantly to the way the primary judge approached the exercise of power under the Act, as opposed to its construction. The State, properly, acknowledged that the primary judge recognised s 3(1) (at [49] and [56]). Insofar as the State’s submission was that her Honour did not apply the test formulated by her, it is addressed in ground 2 below.

Ground 2 – failure to conduct an evaluative judgment of unacceptable risk

1. [86]

   The State complained that although in [56] (and elsewhere in her reasons) the primary judge correctly formulated the test, her Honour failed to apply the approach there identified. The State contended that her Honour failed to conduct “an evaluative judgment” of unacceptable risk, because (a) she did not “quantify” the probability of re-offending, (b) she did not identify the gravity of the consequences of any potential re-offending, (c) she did not consider the circumstances in which the risk of re-offending may occur, and (d) she did not consider whether the supervisory framework was appropriate and adapted to the circumstances in which re-offending may occur and the gravity of the consequences of any such re-offending.

2. [87]

   During oral submissions, the State confirmed that what was said to be absent was not some (numerical) quantification of the possibility of re-offending, but a qualitative assessment. However, such an assessment is disclosed by her Honour’s reasons. Her Honour acknowledged at the outset that if Mr Donovan were to return to his former drinking habits and lifestyle he would probably pose an unacceptable risk of committing a serious violence offence. Her Honour used the adjective “dire”. The essence of her Honour’s reasons was that the extensive supervisory regime proposed by the extended supervision order would detect any lapse in a timely way and react appropriately. That may or may not prove to be the case, but it was a conclusion which was open to her Honour to reach. The same reasoning undermines the remaining aspects of this ground. As seemingly they did at trial, the State’s submissions proceeded on the premise that the risk of a lapse in rehabilitation equated with a risk of serious violence. The primary judge addressed this squarely at [102]:

3. [88]

   The State submitted that “[h]er Honour should have had regard to the evidence of the two independent experts” in undertaking a qualitative assessment of the probability of Mr Donovan re-offending, and pointed to the extremely pessimistic opinions both doctors expressed if Mr Donovan ceased to be abstinent. But it is quite plain that her Honour had regard, expressly, to those opinions. Indeed, they were central to her reasoning. The difference was that the State’s submissions focussed upon the high (indeed, near certain) risk of re-offending if Mr Donovan becomes intoxicated, and put to one side the “low to moderate” risk of an offence of serious violence if he does not.

4. [89]

   The State submitted that “[a]side from a very brief overview of Mr Donovan’s criminal antecedents at [21] and [22], there is an almost complete lack of consideration of the nature and circumstances of Mr Donovan’s past violent offending.” The submission should be rejected. It ignores what the primary judge said about his history, to which reference has been made above, including, especially, the reproduction of the entirety of the agreed statement of facts as to the appalling violence of the 2011 offence.

5. [90]

   The State submitted that the primary judge failed to consider the circumstances in which the re-offending may occur. Again, there is nothing in this. The primary judge formed the view, well open to her on the evidence, that re-offending was likely to be associated with abuse of alcohol or unlawful drugs. This was central to her Honour’s reasoning. Her Honour also referred to the fact that Mr Donovan told Dr Roberts that he had been involved in incidents of violence on around 20 occasions when unaffected by alcohol, although Mr Donovan maintained that he had not instigated any of those incidents, which had not led to criminal consequences.

6. [91]

   The State submitted that the primary judge failed to consider whether the supervisory framework was appropriate. This was developed in a number of ways. In oral submissions, the State emphasised the considerable discretion inherent in the extended supervisory order which it had proposed (“These conditions do give a large measure of discretion to the departmental supervising officer”). The submission might be thought to imply that because one could not be certain how the order would be administered by officers of the State, the State should succeed in discharging the onus it bears that the supervision would not be adequate. If indeed that was what was sought to be conveyed, then we do not agree. The Court should proceed on the basis that officers of the State whose function is to administer the order will do so efficiently and effectively, and in light of all of the evidence which the State has marshalled in support of this application (including, of course, the evidence that aspects of the supervision might not be water-tight). That was at least implicit in the reasons of the primary judge.

7. [92]

   The State submitted that the primary judge “apparently placed no weight on the detailed evidence of Ms McCarroll, the Manager of the ESO Team, who has vast experience in the efficacy of supervision orders, and who pointed to multiple shortcomings with the proposed supervisory framework.” The State emphasised her concerns about electronic monitoring, where Mr Donovan would live after 3 months at a Community Offender Support Program (COSP) at Malabar, and concerns about Mr Donovan’s ability to refrain from using alcohol and drugs if he were released. The State added that “[n]one of the concerns raised by Ms McCarroll in her affidavit were the subject of cross-examination” (Orange 27L).

8. [93]

   Neither submission is correct. First, the primary judge summarised the evidence of Ms McCarroll at [84]-[89], in a way that did not shrink from recounting her serious reservations. Her Honour also identified the limitations of Ms McCarroll’s views, which included that they were based on a report by the proposed DSO (Ms McCarroll, who was the most sceptical of the witnesses who gave evidence, had never met Mr Donovan). Her Honour referred in terms to the limitations of the supervision plan as perceived by Ms McCarroll (at [84]) and the limitations of electronic monitoring (at [87]), and observed at [88] that “[a] principal factor in Ms McCarroll’s concerns as to the likely efficacy of an extended supervision order was her opinion that ‘Mr Donovan does not currently have the level of motivation or commitment required to adhere to a schedule of movements’.”

9. [94]

   Further, contrary to the State’s submission, Ms McCarroll was cross-examined on those opinions. She agreed in cross-examination that there were supervising staff at the COSP 24 hours a day, that there was a curfew from 6 pm to 6 am, and that any movement from COSP would need to be approved. She agreed that she had no evidence to suggest Mr Donovan had rejected the notion of complying with a schedule of movement or electronic monitoring, and that her opinion was based on what had occurred in the past when Mr Donovan had been subject to less stringent supervision. She gave this evidence:

10. [95]

    She also agreed that her team had the training to undertake drug testing or breath testing, and that there was the capacity for random room searches at the COSP.

11. [96]

    In terms of accommodation, Ms McCarroll confirmed in cross-examination that there were at least two centres (Namatjira Haven and Benelong’s Haven) which had undertaken to assess Mr Donovan after he had been released from custody.

12. [97]

    Mr Johnston submitted of this evidence that:

13. [98]

    That submission should be accepted. To be clear, we would attribute the factually erroneous submission advanced by the State as an accident attributable to the extreme expedition with which this appeal was prepared for hearing.

14. [99]

    There is a more general answer to this ground. One cannot read the reasons of the primary judge as a whole without concluding that her Honour gave anxious consideration to the likely effectiveness of the extended supervision order and whether, if Mr Donovan failed to adhere to all aspects of it, the regime would be likely to prevent further offending conduct. This is explicit in respect of the finding which is challenged by ground 4 of the State’s appeal.

Ground 4 – challenge to finding that Mr Donovan unlikely to re-offend suddenly/catastrophically within days of release

1. [100]

   Essential to the conclusion that the State had failed to show that an extended supervision order would not provide adequate supervision was the primary judge’s finding at [102]:

2. [101]

   The State submitted on appeal that there was no basis for that finding. In oral submissions, counsel for the State conceded that the submission had not been put in those terms at trial. Nevertheless, she referred to what she described as a pattern of “spontaneous and opportunistic” offending by Mr Donovan, especially when he was affected by alcohol or illegal drugs. As put orally:

3. [102]

   Counsel emphasised that even while in prison, Mr Donovan had, repeatedly, obtained access to unlawful drugs, and observed that it would be all the easier for him to obtain access to alcohol if released from prison, even with the most stringent extended supervision orders in place. Finally, she observed that it mattered little that Mr Donovan would be subject to random testing and searching because the nature of his offending was such that by the time of a test or seizure, there was a real risk that he would have already consumed the alcohol and engaged in a further serious violence offence.

4. [103]

   Mr Donovan has an appalling history of violence, especially towards women, which is more extensive than appears from these reasons. Although there is no inaccuracy in counsel’s summary reproduced above, it is as well to give some context. Punching the taxi driver in his jaw and stomach took place in 1987, without serious injury. Punching a person in the pub took place in 1989, again without serious injury. The attack in the hotel took place in 2010, and caused injury to a woman’s mouth and throat. The attack in the petrol station took place in 2009, and involved damage to property but no physical injury to the woman. The attack with scissors was the reckless infliction of grievous bodily harm in 2011 which gave rise to his being a “high risk violent offender”, the facts of which are reproduced above, and amounted to violence of a completely different quality. The attack with the screwdriver took place in August 2001 although the victim did not report it until December that year.

5. [104]

   Most, if not all, of the attacks occurred when Mr Donovan was affected by alcohol or drugs (it is probable that it was all, but in some cases the materials do not disclose whether Mr Donovan was affected by alcohol at the time). Accordingly, while Mr Donovan’s individual offences may be characterised as “spontaneous and opportunistic” as submitted by the State, such a description is simply a reflection of the fact that his offending tends to have occurred when Mr Donovan was intoxicated. As set out above, this feature or “pattern” of Mr Donovan’s offending was dealt with at length by the primary judge.

6. [105]

   Mr Johnston pointed to a deal of evidence supporting a conclusion that Mr Donovan, upon being released from custody under less stringent supervisory conditions in the past, only relatively gradually relapsed into abuse of alcohol and re-offending. He pointed to the detailed risk assessment report prepared by Mr Ardasinski (a forensic psychologist employed by Corrective Services) following four 90 minute sessions over a week-long period in January 2015. Under the heading “Supervision Response”, Mr Ardasinski described a “cycle” of conduct which was a “pattern [which] ultimately results in new offending whilst under the influence”. Further, Mr Ardasinski referred, in the executive summary of his report, to the fact that Mr Donovan “has never before been adequately supervised in a community setting to monitor his transition to community-based responsibilities and restrict his alcohol and drug use”. He also referred to the absence of programs of “sufficient intensity” in the Grafton area where Mr Donovan’s family and other supports exist, and where Mr Donovan has previously been released. He acknowledged the possibility that a community-based treatment plan could be devised to address his risk. He confirmed that in cross-examination. He also confirmed that although it would be unsafe for Mr Donovan to be released into the Grafton area, resources were accessible within the city of Sydney, if he were released to the Malabar COSP, including access to psychological interventions.

7. [106]

   Take the most recent, and serious, example of Mr Donovan’s offending, on 24 October 2011. He had been released from custody on 15 August 2011, on parole. The terms of his parole were far less stringent than those contained in the extended supervision order made by the primary judge. Some five weeks later, Mr Donovan recommenced using alcohol and unlawful drugs. On 12 October 2011 he failed a urine analysis requested by his parole officer. On 14 October 2011 he told an officer supervising his parole that he had commenced drinking and using cannabis three weeks previously, and had failed to obtain a second script for Avanza (an anti-depressant). The following week he failed to report in accordance with his parole. That sorry account reflects the “cycle” to which Mr Ardasinski referred.

8. [107]

   Mr Johnston put the position as follows:

9. [108]

   Further, the other experts who actually interviewed Mr Donovan (Ms Jeffress, and the two independent experts) did not express the view that supervised release was unachievable. Ms McCarroll’s concerns may well prove to be well-founded, but on this critical issue the primary judge was in a substantially advantageous position compared to this Court, in seeing the competing views being tested in cross-examination.

10. [109]

    Mr Donovan’s history of re-offending, saddening as it is, supports the conclusion drawn by Mr Ardasinski that not only is the overwhelming majority of Mr Donovan’s serious criminality associated with misuse of alcohol or cannabis, but also that even in circumstances where the terms of his release into the community have been far less stringent than those ordered by the primary judge, some months have elapsed before Mr Donovan has become affected by alcohol and re-offended. The finding that Mr Donovan is unlikely to re-offend “suddenly and catastrophically within days of his release” is sustained by the evidence.

Ground 5 – failure to give reasons

1. [110]

   As the State advanced this ground orally:

2. [111]

   In [102] her Honour had referred to the proposed extended supervision order affording “ample opportunity and occasion for appropriate reaction and intervention”. At [109] her Honour was satisfied that if rehabilitation failed, there would be “adequate supervision to detect the lapse in a timely way and react appropriately”.

3. [112]

   As was submitted on behalf of Mr Donovan, caution should be exercised when assessing the adequacy of reasons, given the pressures placed upon the court by the timing and nature of the State’s application. The primary judge gave careful reasons, in a very short timeframe, dealing with thousands of pages of evidence, tendered in a hearing over two days, addressing the State’s submissions which occupied 71 single-spaced pages with 182 paragraphs and 241 footnotes. One reason for reproducing verbatim much of her Honour’s reasons, delivered within a fortnight of the hearing, is to illustrate how carefully they grapple with the essential evidence before her.

4. [113]

   The concessions obtained from Ms McCarroll in cross-examination, referred to above, are important. Ms Jeffress’ risk management report said that there would be the “most intensive supervision level” applied to Mr Donovan in the first instance and that the frequency of meetings, field visits, third party contacts and case plan reviews “will be adjusted in response to changing circumstances based on ongoing assessment of the offender’s risk”. Her Honour also referred, in [110], to the willingness of a non-government organisation, Tribal Dreaming, to provide an “important complement” to the supervision provided by Corrective Services.

5. [114]

   It is also to be recalled that the question as to which it is said that inadequate reasons have been provided is the likely ability of a supervisory regime to detect any lapse by Mr Donovan and respond promptly. That is precisely what is to be expected would occur through the large discretion reposed in the DSO and the adjusting responses to level of risk to which Ms Jeffress referred. There is little more than can be said by way of reasons. We do not regard it as necessary for her Honour to have explained in detail matters that are, with respect, perfectly obvious, such as that Mr Donovan would not be living at home, or indeed in Grafton, but in a COSP, or a residential rehabilitation centre, that he would be monitored electronically, that there would be restrictions upon his associates and movements, or that he would be subject to random testing for alcohol and drugs. We do not regard there to have been any failure on the part of the primary judge in failing to explain those self-evident matters.

Ground 6 – failure by Mr Donovan to give evidence

1. [115]

   This ground focussed on the question whether Mr Donovan was “motivated” to rehabilitate himself, as to which there was conflicting evidence from the experts called by both sides. The State submitted that the litigation was civil, that the ordinary rules of evidence applied, and that an adverse inference should be drawn because Mr Donovan did not give evidence about his level of motivation.

2. [116]

   There are two reasons, each sufficient of itself, why this ground must be rejected. The first is that no submission was made to undercut the self-evident force of her Honour’s observation at [107] that Mr Donovan’s evidence as to his future conduct would be self-serving. The Act anticipates the difficulties with the partisan evidence from both sides by requiring the appointment of independent experts to examine the offender.

3. [117]

   The second is that there is nothing in the Act to displace the privilege against exposure to a penalty, save for the obligation upon an offender to be examined by the two independent experts. No inference adverse to an offender can be drawn in circumstances where the offender’s giving evidence would lead to him or her being cross-examined by the State with a view to eliciting evidence to support a continuing detention order.

4. [118]

   Against this, Ms Sharp submitted (it is fair to say, tentatively) that because the purpose of the Act was protective, not penal, the privilege might not be available. We would reject that submission. The focus is not on the purpose of the Act or of an order made under the Act, but on the effect of an order. As the High Court said in Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129 at [34], the question is not why the orders were sought or what purpose might be achieved by their making; “[r]ather, attention must be focused upon the nature of the orders that are sought”. That decision confirmed that an order disqualifying a director on account of his or her wrongdoing was a penalty for the purposes of the privilege. Although we accept that the order for detention for two years sought by the State is sought on account of Mr Donovan’s likely wrongdoing in the future if released, we would still conclude that the privilege applies. That accords with what was held in MH6 v Mental Health Review Board [2009] VSCA 184; 25 VR 382 at [26]. (The position is different in the case of corporations, as appears from Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; 89 ALJR 622 at [1]-[2], to which reference was made in argument.)

5. [119]

   Mr Donovan’s immunity from giving evidence that would expose him to a penalty has, in part, been overridden by s 15(4) of the Act, insofar as he has been required to be examined by court-appointed psychiatrists or psychologists. But a person whom the State wishes to detain for a period extending after the term of his or her sentence is not required to go into evidence lest unfavourable inferences be drawn against him or her.

Ground 7 – failure to be satisfied that supervision would be inadequate

1. [120]

   The State submitted that her Honour’s failure to be satisfied was “against the weight” of the evidence. Although no separate ground of appeal was advanced, the State also submitted that the mandatory relevant considerations in s 17(4)(a), (d), (d)(1), (f) and (h) were not given any “real attention”. This aspect was not elaborated in writing. Orally, attention was confined to s 17(4)(h), which requires regard to be had to the offender’s criminal history and “any pattern of offending behaviour disclosed by that history”. We deal with both aspects below, commencing with the only point developed orally.

2. [121]

   Plainly enough, the primary judge had regard to Mr Donovan’s extensive criminal history. At the forefront of her Honour’s reasons was the self-evident correlation between his criminality and abuse of alcohol and illicit drugs. That was the only “pattern” identified in the State’s written submission to her Honour (“[i]t is clear that the offending involves a pattern of alcohol and drug use”), although orally it had also been said that “if a pattern is to be observed in relation to the violent offending, it may be said that the offending is opportunistic and spontaneous rather than planned”. On appeal, the State submitted that:

3. [122]

   The absence of planning and the breadth of offending conduct lead to a conclusion that there is no “pattern” save for the two matters observed by her Honour – the link between alcohol and drug use with violence, and the fact that “Mr Donovan also has a history of failing to comply with conditions of supervision” (judgement at [23]). The Act presupposes, by the use of the word “any” in s 17(4)(h), that there may be no pattern at all. There is no error in failing to have express regard to the absence of a pattern in the offending conduct.

4. [123]

   No complaint about the remaining paragraphs of s 17(4) was advanced orally, although the submission was not abandoned. It should have been abandoned, in light of the written submissions from Mr Donovan. Her Honour expressly had regard to the consideration in s 17(4)(a), the safety of the community, at [27], [28], [41], [54], [68] (where it was described as the “first mandatory consideration”) and [77]. Her Honour expressly had regard to the consideration in s 17(4)(d), statistical assessment, at [59] and [60] in some detail (referring to the static and dynamic variables, the Violence Risk Scale and the Static-99 scale). Her Honour expressly had regard to the consideration in s 17(4)(d1), reports prepared by Corrective Services NSW, when referring to Ms Jeffress’ report, and the other evidence before the Court. Her Honour expressly had regard to the consideration in s 17(4)(f), the level of compliance with obligations to which he was subject on parole, not least in [23] (“history of failing to comply with conditions of supervision”, “repeated breaches of good behaviour bonds”, “failed to comply with conditions of bail”).

5. [124]

   The State’s final submission, again not advanced orally, was that the finding was against the weight of the evidence, having regard to the past conduct of Mr Donovan, his continued use of drugs while in custody, the pessimism of the independent experts on his remaining abstinent, his ineligibility for all but two community-based residential programs, and his earlier breaches of supervisory regimes.

6. [125]

   However, the primary judge was in a position of considerable advantage to this Court. Her Honour had two days of hearing to see and evaluate the evidence, including cross-examination of the most important witnesses, which extended to concessions made by Ms McCarroll in cross-examination. Her Honour was impressed with the independent experts, who had examined Mr Donovan most recently. Dr O’Dea said that:

7. [126]

   This Court is much less able to evaluate the weight to be given to the competing evidence given under cross-examination. Considerable deference is to be given to the assessment of the primary judge in those circumstances. It was for the State to establish error, in accordance with what was said in Attorney-General (Qld) v Francis referred to above. This it has failed to do.

Conclusion and orders

1. [127]

   The question on appeal is not whether or not a continuing detention order should be made. Given that the law is the same and no fresh evidence has been sought to be adduced, the question is whether the State has shown error in the evaluative judgment exercised by the primary judge. An appeal is not the occasion to rerun the hearing. An appeal by the State under s 22 of the Act might be expected to be reserved for clear cases of error of fact or law. This is not such a case. This is a case where the primary judge, in circumstances of considerable urgency, grappled with the competing evidence and formed an evaluative judgment which was open to her.

2. [128]

   No one who has read the evidence in this litigation could fail to be aware of the real risk that Mr Donovan might fail to adhere to the conditions of his extended supervision order. It is plain that the primary judge was conscious of that possibility. There are cases where the intrusive supervision will enable a seemingly intractably unrehabilitated offender to cease offending. However, if Mr Donovan fails to take advantage of the support which the regime will give to him, he must know that a breach of the extended supervision order is a serious offence, which is highly likely to return him to prison for a lengthy period. In particular, given the evidence about likely offending if Mr Donovan becomes intoxicated, a breach of the prohibitions upon possession of alcohol or illicit drugs is apt to be regarded as a very serious breach of the order.

3. [129]

   The State having failed to demonstrate error, its appeal must be dismissed. In circumstances where the State is paying for both parties’ representation, it is not clear that a costs order is appropriate, but if Mr Donovan has a different view, application may be made in accordance with r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW).

4. [130]

   In terms of an orderly transition from custody to supervision, Mr Donovan pointed to the one day’s delay ordered by the primary judge, and said that he would not be heard against the Court taking that course. To that end, the existing stay, interim order and warrant should be extended until 11 am tomorrow, 17 September 2015. From 11 am, 17 September 2015, the extended supervision order made by the primary judge will resume being in force.

5. [131]

   The formal orders are:

   1. (1)

      Appeal dismissed.

   2. (2)

      Extend the stay of the extended supervision order until 11 am, 17 September 2015.

   3. (3)

      Renew the interim detention order and warrant until 11 am, 17 September 2015.