The Extended Supervision Order (ESO) is a legal mechanism utilised in New South Wales to manage individuals who pose a high risk to the community due to their history of serious criminal offences and ongoing risk of reoffending. An ESO or continuing detention order (CDO) is usually sought and made against sex offenders and terrorism offenders.
An ESO is a legal order issued by the Supreme Court of NSW under the Crimes (Administration of Sentences) Act 1999. It is designed to provide continued supervision and management of offenders who have completed their prison sentence but are considered to pose a significant risk to the community due to their criminal history and potential for reoffending. For an ESO order to be made, the court must be satisfied to a high degree that the offender poses a risk to the community if they are not placed on an ESO.
The primary objective of an ESO is to protect the community by ensuring that individuals with a high risk of reoffending are subject to ongoing supervision and monitoring after being released from prison. By placing conditions on the individual, the ESO aims to prevent them from engaging in activities that may lead to harm or further criminal behaviour. ESO orders are extremely onerous, and orders can have up to 56 conditions attached to it.
Section 3(1) of the Act states the main purpose, which, for the relevant proceedings, is to “facilitate the extended supervision and ongoing detention of high-risk violent offenders, thereby ensuring the safety and protection of the community.” Additionally, Section 3(2) highlights that another objective of the Act is to encourage rehabilitation among such offenders.
In the context of the Act, the term “ensure” as mentioned in the objective is focused on evaluating the level of risk to safeguard the community from harm, rather than providing an absolute guarantee of safety and protection.
An ESO is covered by the High Risk Offenders Act 2006. Section 6 of the legislation grants the State the authority to request the Supreme Court for an extended supervision order against a sex offender who, at the time of the application, is either in custody or being supervised. This applies in the following circumstances:
The offender is serving a sentence with a term of imprisonment in custody:
(i) for a serious sex offence,
(ii) for an offence of a sexual nature, or
(iii) for another offence that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more of the aforementioned prison sentences. This applies regardless of whether the sentence is being served through full-time detention, intensive correction in the community, or home detention. It also applies whether the offender is in custody or on parole.
The application for an extended supervision order cannot be made earlier than six months prior to the expiration of the offender’s sentence.
According to Section 5 of the legislation, a “serious sex offence” is defined as a wide range of sexual offences, including those that carry a maximum penalty of at least 7 years in prison. Examples of such offences include engaging in a sexual act with a child under 10, committing aggravated sexual touching, all forms of sexual assault, persistently abusing a child sexually, procuring or grooming a child under 16, engaging in sexual servitude, and producing, disseminating, or possessing child abuse material.
Section 9 of the legislation specifies that an extended supervision order may only be granted if the Supreme Court is convinced to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if not kept under supervision.
Section 10 establishes that an extended supervision order takes effect either upon its issuance or upon the offender’s release, whichever occurs later. The order remains in effect for the duration stated in the order, but cannot exceed five years.
Additionally, the section states that subsequent applications for such orders can be made within six months of the expiration of an existing order.
To assess the risk posed by an offender, several factors come into play, including their past behaviour, the seriousness of potential future actions, and the timeframe in which the risk may materialise. This assessment should be based on the absence of protective measures. The notion of “unacceptability” relies on these considerations, along with a comparison, to the extent supported by evidence, of the baseline level of risk posed to the community by violent offenders.
While the concept of “risk” clearly involves a risk to the community, the qualifier “unacceptable” can be interpreted as referring to a risk deemed unacceptable by the Court. However, it is crucial to understand the composite phrase as referring to a risk to the community as a whole.
The precise parameters, standards, or norms against which the determination under Section 5E(2) should be made are not immediately apparent from the provision’s text. Evaluating whether something is unacceptable involves a subjective judgment, and such determinations require a contextual framework within which they are made.
The state of satisfaction required in Section 5E(2) necessitates the exercise of discretionary judgment.
When assessing unacceptable risk, the impact of an order on the offender is not a relevant factor. The focus is on evaluating factors directly related to the content of the risk itself.
Section 11 sets forth that the conditions of an extended supervision order may encompass various directives, which may include, but are not restricted to, mandating the offender. Accordingly, when an ESO is granted, the court may impose various conditions on the individual. These conditions are tailored to address the specific risks posed by the individual and are aimed at reducing the likelihood of reoffending. Some common conditions that may be imposed include:
The court may require the individual to reside at a specified address or in an approved accommodation. This helps in monitoring their whereabouts and ensuring they are not in close proximity to potential victims or areas of risk.
Regular reporting to an assigned supervisor or case manager is often a condition of an ESO. This allows for close monitoring of the individual’s activities and facilitates ongoing risk assessment.
Treatment and Programs
Participation in specified treatment programs, such as counselling, therapy, or rehabilitation programs, may be a condition to address underlying issues that contribute to the risk of reoffending.
Restrictions on activities, such as alcohol or drug use, associating with certain individuals, or accessing the internet, may be imposed to mitigate potential triggers or situations that could lead to criminal behaviour.
In most cases, electronic monitoring devices, such as GPS tracking, will be required to monitor an individual’s movements and ensure compliance with the imposed conditions. Most offenders subject to an ESO will be required to provide a timetable for their movements for the week, one week in advance for approval by their case officer.
Section 13 of the Act governs the power of the Court to vary conditions of an ESO. The relevant parts are as follows:
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.
If an individual subject to an ESO fails to comply with the conditions imposed, it constitutes a breach. Breaches can include a wide range of non-compliant behaviours, such as failure to report, violating residence restrictions, or engaging in prohibited activities.
When a breach occurs, the assigned supervisor or case manager notifies the relevant authorities, and the matter is brought before the court. The court will then assess the breach and determine the appropriate course of action. The consequences for breaching an ESO can vary and may include warnings, increased supervision, modification of conditions, or, in serious cases, imprisonment.
The Extended Supervision Order (ESO) plays a crucial role in managing high-risk individuals who have completed their prison sentences in NSW. By imposing tailored conditions and maintaining ongoing supervision, the ESO aims to protect the community and prevent further offences. Breaches of ESO conditions are taken seriously, and the courts have the authority to impose penalties and modify conditions as necessary to maintain public safety.
If you or a loved one have received a letter from the Crown solicitors officer and are being considered for an ESO, you should contact a sexual assault lawyer in Sydney immediately.