State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 (24 February 2011)

Last Updated: 14 April 2011

Supreme Court New South Wales

Case Title:	State of New South Wales v Thomas (Preliminary)
Medium Neutral Citation:	[2011] NSWSC 118
Hearing Date(s):	24 February 2011
Decision Date:	24 February 2011
Jurisdiction:
Before:	R A Hulme J
Decision:	Two qualified psychiatrists appointed to conduct separate psychiatric examinations of the defendant and reports to be furnished to the Court
Catchwords:	CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offender - preliminary hearing - application for extended supervision order to replace existing continuing detention order - consideration of "unacceptable risk" test - objects of the Act - relevance of offender's participation in rehabilitation program
Legislation Cited:	Crimes Act 1900 Crimes (Serious Sex Offenders) Act 2006 Crimes (Serious Sex Offenders) Amendment Act 2010
Cases Cited:	Attorney General (NSW) v Hayter [2007] NSWSC 983 Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 Attorney General (New South Wales) v Tillman [2007] NSWCA 119 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 State of New South Wales v Manners [2008] NSWSC 1242 State of New South Wales v Thomas [2008] NSWSC 1340 State of New South Wales v Thomas (Final) [2009] NSWSC 1410
Texts Cited:
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Bruce Malcolm Thomas (Defendant)
Representation
- Counsel:	Counsel: Mr D Staehli SC with Mr D Kell (Plaintiff)
- Solicitors:	Solicitors: Mr P Murphy (Defendant)
File number(s):	2011/41563
Publication Restriction:

Judgment

1. HIS HONOUR: The State of New South Wales (the State), by summons filed on 8 February 2011, applies for an extended supervision order in respect of the defendant pursuant to Part 2 of the Crimes (Serious Sex Offenders) Act 2006 (the Act). On 24 February 2011 there was a preliminary hearing pursuant to s 7(3) of the Act. At the conclusion of the hearing, I made orders appointing two qualified psychiatrists to conduct examinations of the defendant and to furnish reports to the Court. The following are my reasons for making those orders.
   
2. There have been previous proceedings concerning the defendant. On 8 October 2008 Adams J ordered that the defendant be the subject of an extended supervision order for a period of 12 months: State of New South Wales v Thomas [2008] NSWSC 1340.
   
3. The defendant subsequently breached that order on a number of occasions. On 17 December 2009 I made an order pursuant to s 17(1)(b) that the defendant be subject to a continuing detention order for 18 months from that date: State of New South Wales v Thomas (Final) [2009] NSWSC 1410.
   
4. Since the making of that order the defendant has completed the Custodial-Based Intensive Treatment (CUBIT) program for high risk sex offenders. This has prompted the State to take the view that rather than having the defendant serve the period that remains under the continuing detention order, it would be more appropriate that he be the subject of an extended supervision order for a period of five years. Given that there is no provision in the Act for the replacement of one type of order with another, it has been necessary for the State to include a prayer for relief in its summons that an order be made revoking the continuing detention order pursuant to s 19(1) of the Act.
   
5. There are some threshold statutory criteria for the making of the current application. Each of these matters is satisfied in the present case.
   
6. Mr Thomas is a sex offender within the meaning of s 4 as he has in the past been sentenced to imprisonment following conviction for a "serious sex offence" as defined in s 5(1)(a), being aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act 1900.
   
7. When the application was made the defendant was in custody pursuant to an existing continuing detention order: s 6(1)(b).
   
8. The application has been made within the last six months of the defendant's current custody: s 6(2).
   

Issues for determination

9. The first question is whether the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order: s 7(4). If so, the Court must make orders appointing two qualified psychiatrists or psychologists to conduct separate examinations of the defendant and to furnish reports to the Court. If not, the Court must dismiss the application: s 7(5).
   
10. On behalf of the defendant it was conceded that I would be so satisfied. However, whether or not the defendant opposes the orders sought at the preliminary hearing, it remains a matter for the Court to determine whether the statutory criteria have been satisfied: Attorney General (NSW) v Hayter [2007] NSWSC 983 at [4]; New South Wales v Manners [2008] NSWSC 1242 at [4].
    
11. The task of the Court at the preliminary hearing stage is not to weigh up the documentation, or predict the ultimate result, or to consider what evidence the defendant might call at the final hearing: Attorney General (New South Wales) v Tillman [2007] NSWCA 119. The test is one that is similar to the prima facie case test applied by magistrates in committal proceedings: Attorney General (NSW) v Hayter , above, at [6]: State of New South Wales v Manners , above, at [8].
    
12. The question of whether the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (s 7(4)) requires consideration of the provisions of s 9. That section provides for the determination of applications for an extended supervision order. The Court may determine such an application by making an extended supervision order or by dismissing the application: s 9(1). An extended supervision order may be made if and only if the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision: s 9(2).
    
13. The formulation, "poses an unacceptable risk of committing a serious sex offence" is a new one introduced into the Act by the Crimes (Serious Sex Offenders) Amendment Act 2010 which took effect from 7 December 2010. The previous formulation which has been considered in a number of decisions of this Court both in the Common Law Division and the Court of Appeal was "is likely to commit a further serious sex offence".
    
14. The first part of the test in s 9(2), that is the need for satisfaction "to a high degree of probability", remains unchanged and has been the subject of previous consideration, both as to its appearance in s 9(2) and in the use of the same expression of the level of satisfaction in s 17(2) (which relates to the determination of applications for continuing detentions orders). It has been held that it constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard: see, for example, Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 per Bell J at [27]; Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
    
15. A seemingly important matter in considering the new "unacceptable risk" test is the simultaneous insertion in s 9 of sub-s 2A. It is in the following terms:
    

(2A) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence.

16. That provision, to my mind, is an indication by the legislature that the risk of the person committing a serious sex offence does not need to be more likely than not before it can be regarded as an unacceptable risk. Put another way, the risk may be less likely than not but still be an unacceptable risk.
    
17. Counsel for the State informed me in the course of submissions that they were unaware of any consideration that had been given by this Court to the new formulation in s 9(2) and its equivalent in s 17(2).
    
18. It was submitted that an "unacceptable risk" is a risk which does not ensure adequate protection of the community. That is, the Court must consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that it is necessary in the interests of the community to ensure that the person is subject to further control or detention.
    
19. One matter that should be borne in mind in considering the new "unacceptable risk" test is the objects of the Act set out in s 3 of the Act. That section is in the following terms:
    

(1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community.

(2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation.

20. Whilst bearing in mind the second of those two objects, I would regard the test in s 9(2) as being satisfied if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made.
    
21. This conclusion which I reached on the preliminary hearing is a provisional one. I will hear further submissions on the issue at the final hearing. The new "unacceptable risk" formulation is one that has been used in similar legislation in other jurisdictions, namely Queensland and Western Australia. It was also recently introduced in Victoria. Counsel undertook to provide further assistance in relation to how the Act compares with the legislation in the other jurisdictions and how the test has been construed there.
    
22. For the purpose of my determining the issue at the preliminary hearing there was consensus in the view that the new formulation does not pose a test more stringent than that which it replaces.
    
23. In my previous judgments relating to Mr Thomas I set out at some length his offending history; the circumstances that led to the making of the extended supervision order by Adam J in 2008; the events which occurred following the defendant's release on that order; and the history of the defendant's participation in treatment or rehabilitation programs. I also summarised a number of reports which were before me, including by Mr Patrick Sheehan, senior specialist psychologist in the Serious Sex Offenders Review Group of Corrective Services NSW, Professor Greenberg, psychiatrist, Dr Jeremy O'Dea, psychiatrist and others. I also dealt at some length with a variety of other matters that were in evidence before me and included a discussion of matters relevant to the safety of the community. A summary of the findings that I made in State of New South Wales v Thomas (Final) was as follows:
    

[79] The defendant's history shows that he has been a dangerous and violent sex offender. [80] He is now aged 62 and his physical health is not the best. However, the degree to which these factors might attenuate the risk of reoffending is relatively minimal. [81] The defendant has not completed any significant rehabilitation programs. He has persistently avoided doing so. There is the barest glimmer of hope that he may be willing to undertake the CUBIT program but this is with stated reluctance. If he were to undertake that program, there is little cause for optimism that he would successfully complete it. He has thus far unremittingly refused to make an appropriate acknowledgement of his past offending behaviour. [82] The defendant has not expressed any real insight into the causes of his offending behaviour and there is no evidence of him having a genuine desire to explore and confront the underlying issues. [83] The defendant is an unreliable historian. This is apparent from the judgment of Adams J and I have referred to some examples of his inconsistent responses in the course of this judgment. As a consequence, assurances that he has given about no longer being a risk, no longer having a sex drive, and the like, must be assessed with considerable scepticism. [84] Expert appraisals by Professor Greenberg and Mr Sheehan have led to opinions being expressed that the defendant remains in the high risk category for committing a further serious sex offence if released into the community relative to other sex offenders. Dr O'Dea was less precise in his assessment of the risk of reoffending, although it can at least be said that he acknowledged that there was a risk. [85] The stringent conditions of the extended supervision order made by Adams J did not have the effect of enforcing the defendant's compliance through the risk of being returned to custody. His breaches of that order were so many, so frequent, and so soon after being released, that one can have no confidence that he would be completely compliant with the terms of any future order.

24. In the judgment I concluded that there was a high degree of probability that the defendant was likely to commit a further serious sex offence if he was not kept under supervision. I was also satisfied that adequate supervision would not be provided by an extended supervision order. It was those conclusions which led me to make the continuing detention order.
    

Events which have occurred since the making of the continuing detention order

25. As will be seen from paragraph 81 of my previous judgment, I was not at all confident that the defendant would willingly undertake the CUBIT program, or that if he did he would successfully complete it. Upon the material that was before me at that time, and upon further consideration of it now, I remain of the view that such scepticism was well founded. I am pleased to say, however, that the defendant did in fact enrol in, and successfully complete, the CUBIT program.
    
26. I have before me reports by Mr Michael McElhone, specialist psychologist, CUBIT, Metropolitan Special Programs Centre and Mr Patrick Sheehan, senior specialist psychologist, Serious Sex Offender Review Group, both of Corrective Services NSW.
    
27. Mr McElhone's report is primarily concerned with the defendant's participation in the CUBIT program. The defendant was a participant from 20 January 2010 until 8 November 2010. Mr McElhone reports that the defendant's "general approach to treatment was positive". Initially his acceptance of responsibility for his offences was very limited but in progressing through the program he came to accept a greater level of responsibility. When first discussing the processes that motivated his decisions to sexually offend, his narrative is said to have been quite simplistic. However, later in treatment he came to elaborate on the "contextual factors that he identified as being associated with his sexual offences".
    
28. Mr McElhone carried out a risk assessment process with a view to assisting in the prediction of sexual recidivism for the defendant. Mr McElhone used the Static-99R instrument and in a range of scores from minus 3 to plus 12 rated the defendant with a score of 5. Such a score is said to have placed the defendant in the "medium-high risk category relative to other male sexual offenders". Mr McElhone reports that the rates of sexual recidivism for sexual offenders who had the same score as the defendant were between 11.4 per cent and 25.2 per cent over 5 years, and between 22.6 per cent and 35.5 per cent over 10 years. Individuals with such a score have an expected recidivism rate which is 2.23 times higher than the "typical" sexual offender. Mr McElhone noted, however, that an instrument such as Static-99R has certain limitations. It does not necessarily directly reflect the recidivism risk of an individual offender.
    
29. Mr McElhone also assessed certain "dynamic risk factors" that were present in the defendant's case. The first factor, intimacy deficits, is said to refer to the general capacity to make friends and feel close to others. Mr McElhone reported that there were noticeable changes in the defendant's ability to interact in a positive manner with others through his participation in CUBIT. The next factor, significant social influences, is said to be regarded as one of the most well-established predictors of criminal behaviour. It is reported that the defendant's social support network is currently limited to professional supports, such as those provided through Corrective Services. Through treatment, however, he did work on developing a more adaptable orientation to potential social support.
    
30. In terms of general self-regulation, that is an individual's ability to self-monitor and inhibit antisocial thoughts and behaviour, Mr McElhone reported that the defendant's history reflects significant problems in this area. However, there were reported changes in his thinking and emotional responses which seem to be associated with more adaptive reactions to interpersonal problems with people in authority.
    
31. Sexual self-regulation is a reference to an individual's ability to control their expressions of sexual impulses. Mr McElhone reported that the defendant's work in CUBIT had been important in the context of him learning to better control his sexual impulses. Mr McElhone wrote, "this has been reflected in his reported ability to challenge and reframe unhelpful thinking, his apparent ability to better manage emotional distress, and his reported ability to incorporate thinking about long-term consequences into his decision-making processes".
    
32. The next dynamic risk factor upon which Mr McElhone reported was cooperation with supervision, said to be whether or not the offender appears to be working with supervision or against it. Mr McElhone noted that the defendant had a long history of failing to comply with supervisory conditions. I referred to a number of examples of this in my earlier judgments. Mr McElhone reported that cooperation with supervision was focused on during the defendant's treatment. He reports that the defendant will need to continue to carefully monitor his thinking and his responses to staff supervising him in the community. He will need to communicate openly with support staff, such as his community based maintenance psychologist, to ensure that he is able to reflect on his attitudes and respond appropriately to the expectations of supervision.
    
33. In the next section of his report Mr McElhone addressed issues relating to the defendant's future management. In relation to "risk factors and warning signs", he reported that the defendant was able to identify a number of risk factors, internal warning signs, and external warning signs. It is said that the defendant demonstrated that he was able to recognise and effectively intervene to manage manifestations of these factors and warnings.
    
34. In terms of self-management, Mr McElhone reported that the defendant will need to continue to pay attention to his reactions to problematic situations, to challenge negative, unhelpful and unrealistic thinking, and to implement adaptive responses to these situations.
    
35. In concluding his report, Mr McElhone said that he had taken into consideration both static and dynamic risk factors and that he considered that the risk rating of "medium-high" on the Static-99R instrument accurately estimated the defendant's risk at this time. He recommended that the defendant participate in a community based maintenance program, and that he participate in Alcoholics Anonymous or similar alcohol and other drug programs to assist him with his goal to maintain abstinence from alcohol and illegal drugs.
    
36. Mr Sheehan noted that, at the time of his previous assessment of the defendant in September 2009, it was difficult to accurately gauge his true attitude towards his risk of sexual recidivism. This was contrasted with an interview with the defendant in November 2010 in which it appeared that the defendant had developed a greater understanding of his offending and the features that contributed to it. The defendant was able to identify that the main issues that he needed to be mindful of were his attitude towards women and his anger. He explained to Mr Sheehan that by maintaining a positive attitude towards women, self-monitoring his thoughts and behaviour, and practising consequential thinking, he could manage his risk and generally live a more adaptive life.
    
37. Similarly to Mr McElhone, Mr Sheehan reported that the notes and assessments of the defendant's participation in CUBIT indicated that the experience of treatment was positive for him. Mr Sheehan's review of the material indicated to him that the defendant attended treatment sessions as required, participated when expected, and completed treatment exercises when requested. He provided a written and verbal disclosure of his sexual offences which represented a significant departure from his previous inability to directly and openly discuss his offences. Significantly, however, Mr Sheehan reported:
    

"Although it is important to draw attention to the positive behaviour exhibited by Mr Thomas during his participation in CUBIT, there is much work to be done in building on the successes made in CUBIT and transferring them to the context of community life".

38. Mr Sheehan reported that to best take advantage of the gains that the defendant had made in treatment, he should participate in a post-treatment maintenance program, such as the Community Based Maintenance Programme offered by Corrective Services NSW.
    
39. Mr Sheehan also used the Static-99R instrument in assessing the defendant's static risk factors and scored him at 4. Although this was slightly less than the scoring by Mr McElhone, it still placed the defendant in the "moderate-high" risk category relative to other male sexual offenders.
    
40. Mr Sheehan assessed the dynamic risk factors in the defendant's case in a similar manner to Mr McElhone. His conclusions were similar. In short they may be summarised by saying that whilst improvements through participation in CUBIT had been noted, there remains work to be done in a number of areas. Gains thought to be made in a custodial based therapeutic program might be regarded as promising. However whether the gains are real and can be further developed will not be known until Mr Thomas is tested by being back within the community.
    
41. Mr Sheehan concluded on the question of overall risk with the statement:
    

"At this point, the overall totality of evidence suggests that Mr Thomas remains in the high risk category of sexual offending relative to other adult male sexual offenders".

42. In his conclusions and recommendations Mr Sheehan reported that the defendant's ability to manage himself and his interactions with those around him may indicate that he has an increased chance of responding positively to supervision in the community. He reported, "from a therapeutic and risk management prospective, now would be the optimal time to take the opportunity to transition Mr Thomas into the community".
    

Factors listed in s 9(3)

43. In considering whether the matters alleged in the supporting documentation relied upon by the State "would, if proved, justify the making of an extended supervision order" (s 7(4)), it is necessary to have regard to the matters that the Court is required to have regard to by s 9(3). It is unnecessary in this judgment to review those matters as I have done so previously in earlier judgments and have updated the consideration of some of those factors in my review of the recent reports of Mr McElhone and Mr Sheehan.
    

Conclusion

44. I have regard to the primary object of the Act, that being the safety and protection of the community. I also have regard to the secondary object of encouraging serious sex offenders to undertake rehabilitation.
    
45. Counsel for the State emphasised in written submissions the following factors:
    

(i) the defendant has a chronic history of sexual offending. He has convictions for sexual offences that spans over four decades. The offences were typically accompanied by threatened and actual acts of physical violence;

(ii) the defendant has a severe Anti-social Personality Disorder;

(iii) the defendant is assessed as presenting a high risk of sexually re-offending;

(iv) the defendant has a poor history of complying with parole and supervision requirements, and has been convicted of three charges of failing to comply with an ESO;

(v) the defendant has a high need for continuing supervision, monitoring and psychological treatment in order to assist him in managing his high risk of sexual recidivism.

46. Those matters are clearly made out in the supporting documentation and I was satisfied of them in my previous judgment. The subsequent reports of Mr McElhone and Mr Sheehan do not warrant any change at this stage of my conclusions as to those matters.
    
47. I am satisfied that the matters alleged in the supporting documentation would, if proved, establish a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. For these reasons I made the orders which I announced at the conclusion of the preliminary hearing before me on 24 February 2011.
    

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