Continuing Detention Orders NSW: The Law

The Crimes High Risk Offenders Act, enacted in 2006, was a response to the need for a more robust system to manage offenders who present an ongoing danger to society, even after serving their custodial sentences. The legislation aimed to strike a balance between protecting public safety and upholding the civil liberties of individuals who have been subject to criminal convictions.

In addition to the above, the Crimes (Serious Sex Offenders) Act 2006, referred to as “the Act,” contains provisions allowing the State of NSW to seek the extension of confinement for specific individuals beyond their prescribed term of imprisonment, as well as to prolong their period of community supervision.

Within the Act, Section 14 grants the State the authority to petition the Supreme Court for a continuing detention order against a sex offender who, at the time of application, is serving a sentence of imprisonment in a correctional facility:

While serving a full-term detention sentence for:

(i) A serious sex offence, or

(ii) An offence of a sexual nature, or

(iii) Another offence being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment as mentioned above, or

Pursuant to an existing continuing detention order.

Section 5 of the Act defines a ‘serious sex offence’ to encompass a wide range of sexual offences, including those carrying a maximum penalty of at least seven years of imprisonment. These offences include:

• Engaging in a sexual act with a child under 10,
• Aggravated sexual touching,
• All forms of sexual assault,
• Persistent sexual abuse of a child,
• Procuring or grooming a child under 16,
• Involvement in sexual servitude, and
• Producing, disseminating, or possessing child abuse material.

Section 17 of the Act empowers the court to issue a continuing detention order only when it is “convinced to a high degree of certainty that the offender presents an unacceptable risk of committing a serious sex offence if not kept under supervision, and that adequate supervision cannot be ensured through an extended supervision order.

Furthermore, Section 18 stipulates that a continuing detention order becomes effective upon its issuance or the offender’s release, whichever comes later, and remains in effect for the duration specified in the order, which may not exceed five years.

The section also allows for subsequent applications for such orders at any time, theoretically enabling an offender to remain incarcerated until their passing, irrespective of the penalty initially imposed by the sentencing court.

The duration of orders issued under the ‘Crimes (High Risk Offenders) Act’ and ‘Crimes (Serious Sex Offenders) Act’ is capped at five years, while orders under the ‘Terrorism (High Risk Offenders) Act’ are restricted to a maximum of three years.

It is worth noting that additional applications for such orders can be submitted at any point in time.