State of New South Wales v Thomas - [2008] NSWSC 1340

No judgment structure available for this case.

CITATION: STATE OF NEW SOUTH WALES v THOMAS [2008] NSWSC 1340

HEARING DATE(S): 29/07/08, 30/07/08, 29/08/08, 03/10/08

JUDGMENT DATE :
12 December 2008

JUDGMENT OF: Adams J at 1

DECISION: Pursuant to s 17(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 (NSW), order that the defendant be subject to an extended supervision order to operate on and from 8 October 2008 for a period of 12 months expiring on 7 October 2009 and pursuant to sections 17(5) and 11 of the Act, direct compliance with the conditions set out in the Schedule.
Grant liberty to the parties to apply on 3 days' notice

CATCHWORDS: Extended detention and supervision orders - effects of orders - standard of proof of risk of re-offending - use of research and statistics - provisional nature of statistical conclusions

LEGISLATION CITED: Crimes (Serious Sex Offenders) Act 2006
Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Attorney General for the State of New South Wales v Gallagher [2006] NSWSC
Attorney General for the state of New South Wales v Winters [2007] NSWSC
TSL v The Secretary of the Department of Justice (2006) 14 VR 109
Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605
Cornwall v Attorney General for New South Wales [2007] NSWCA 374

PARTIES: State of New South Wales (Plaintiff)
Bruce Malcolm Thomas (Defendant)

FILE NUMBER(S): SC 2008/12385

COUNSEL: D Staehli SC/ N Sharp (Plaintiff)
M Johnson (Defendant)

SOLICITORS: I V Knight (Crown Solicitor) (Plaintiff)
Peter Murphy (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

12 December 2008

2008/12385 STATE OF NEW SOUTH WALES v Bruce Malcolm THOMAS
`

JUDGMENT

HIS HONOUR:
Introduction

1 Mr Bruce Malcolm Thomas, the defendant, was sentenced in the District Court on 25 October 1996 to imprisonment for 12 years commencing on 12 July 1996 with a 9-year non-parole period. He was not released on parole. In light of the defendant’s impending release on the expiration of his sentence on 11 July 2008, the State of New South Wales commenced proceedings in this Court on 20 May 2008 for a continuing detention order or, in the alternative, an extended supervision order under the Crimes (Serious Sex Offenders) Act 2006 (the Act) in respect of him. On 11 June 2008 Johnson J made an interim detention order which has been successively renewed with the final period of 28 days expiring on 3 October 2008. On 8 October 2008 I ordered that the defendant be subject to an extended supervision order to operate from that date for a period of 12 months expiring on 7 October 2009 and directed compliance with certain conditions. I stated that I would later publish my reasons for this order. These are those reasons.

The statutory objects

2 The Act was first enacted in April 2006 and has been amended since. The primary object of the Act is stated as providing for extended supervision and continuing detention of serious sex offenders “to ensure the safety and protection of the community”. Another object of the Act is said to be to encourage such offenders “to undertake rehabilitation”. The mode of “encouragement” is, as a matter of reality, that the offender runs the risk of staying in prison for up to a further period of five years after his sentence has fully expired unless he undertakes the intense group therapy programme known as CUBIT (which is discussed below).

3 It has been said that it follows from the objects of the Act that detention orders have a protective (that is, protective of the public), rather than a punitive purpose. Since the effect of a continuing detention order is that the person is kept in a prison with other criminals and is treated as an ordinary prisoner, with all the humiliation, confinement and discipline which that entails, the inevitable effect of a detention order is punitive. Accordingly, it must be seen as one of the purposes of the legislation albeit as secondary to the overriding purpose.

4 It is only very recently that modes of arguably appropriate supervision have been provided by the Department of Corrective Services (COSP, which I discuss later). Until that was done, the possibility of legislatively permitted supervision was not as a practical matter available and as a consequence even if such supervisory orders were in theory available, they could not be made: in short the alternative was realistically available. Even now, the kind of therapy said by the State to be appropriate for persons such as the defendant is not available outside prison. In cases where such therapy is necessary to permit a supervision order as distinct from a detention order, only the latter can as a matter of reality be made. This practical limitation on the ability of the Court to make supervision orders highlights the punitive purpose of the legislation.

5 In making these observations, of course I am not seeking to criticise the legislation. It has been passed by the Parliament. It is lawful. It must be complied with. And I propose to do so. Nevertheless, a Court cannot disregard the reality of that which it is required to do.

6 In this case, the State has asked for an order that the defendant be detained for a period of up to five years from the date of the order or, if the Court will not grant such an order, one that he be placed under extended supervision for a period of up to five years. It submitted that only after the defendant’s successful undertaking of CUBIT could the Court properly make a supervision order (or, theoretically, decline to make any order) and, as this cannot be done outside prison, he must stay in prison.

7 For his part, the defendant conceded that some form of extended supervisory order was inevitable and did not oppose such a course.

8 What then are the matters which must be considered and the issue which must be determined before the orders sought by the State against the defendant are made? The first requirement is that the person must be a sex offender within the meaning of s 4 of the Act. He is such an offender if he has at any time been sentenced to imprisonment for a “serious sex offence”, defined by reference to certain enumerated offences in the Crimes Act 1900. There is no doubt that the defendant is such an offender. The orders sought by the State can only be made, as to the extended supervision order, if the Court “is satisfied to a high degree of probability that the defendant is likely to commit a further serious sex offence if he or she is not kept under supervision” and, in respect of a continuing detention order, only if the Court “is satisfied to a high degree of probability that the defendant is likely to commit a further serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order”: sub-ss 9(2) and 17(3) of the Act. A “serious sex offence” is (ignoring those involving children, which do not appear to be relevant in the defendant’s case) one of only three offences under Division 10 of Part 3 of the Crimes Act 1900, namely s 61J (aggravated sexual assault), s 61M (aggravated indecent assault) and 80A(2A) (sexual assault by forced self-manipulation in circumstances of aggravation).

9 It is obvious that, where a continuing detention order is made, the offender’s punishment is to be continued since s 20 of the Act requires the warrant for committal of the offender to specify that he be imprisoned in a “correctional centre” which is an ironic euphemism for prison.

10 Not surprisingly, some difficulty has arisen because of the obscurity of the phrase “a high degree of probability that the offender is likely to commit a further serious sex offence …”. Since the test determines whether a person is to be imprisoned for up to five years, it might be thought that some precision of the requisite level of certainty would be of fundamental importance. The probability of a likelihood – a test nowhere used in the criminal or civil law – does not on the face of it fulfil this requirement.

11 In Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340, McClellan CJ at CL, determining a claim for interim orders at a preliminary hearing, said –

Boughey v The Queen

R v SLD

Teremoana

Dowling v Dalgety Australia Limited

[35] However, it will be necessary to give careful consideration to the context in which the word ‘likely’ is used in the present legislation upon the final determination of this matter.”

12 McClellan CJ at CL revisited the point in Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071, where the Attorney General submitted that “likely” meant “could well happen”. After discussing the decision in the Victorian Court of Appeal of TSL v The Secretary to the Department of Justice (2006) 14 VR 109 (to which I will shortly return), his Honour observed, “Leaving aside matters of comity, I would not favour the construction adopted in TSL”, stating –

“[29] … Although the standard of proof requires a high degree of probability this does not inform that which must be proved. Requiring proof to a high degree of probability that someone actually did a particular act is different from requiring proof to a high degree of probability that it is possible that the person did that act.”

13 His Honour considered the decision of Bell J in Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 as having accepted, though not precisely stated, that “likely” meant “probable” as distinct from “possible”, in this context, meaning “more probable than not”. Following a comprehensive examination of the authorities, McClellan CJ at CL concluded as follows –

Boughey

[49] If the legislation was to be applied in this manner the court would not be called upon to make a decision as to the likelihood of an offender re-offending. Every relevant offender would be likely to re-offend. This could not have been intended by the Parliament.

Gallagher

14 The decision of Bell J to make a continuing detention order was appealed by Mr Tillman. For the purposes of the appeal it was necessary for the Court of Appeal to consider the requirement in s 17(3) so far as the likelihood of committing a further offence was concerned: Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327. Giles and Ipp JJA thought that there was “much to be said” for the view expressed by McClellan CJ at CL in Winters, namely, that “likely” is used in the section as meaning more probable than not and, in view of the ambiguity of the word “likely” they would tend towards that interpretation, were they unconstrained by the view expressed by the Court of Appeal in Victoria in TSL: [2007] NSWCA 327 at [88].

15 In TSL, Callaway AP (with whom the other judges agreed) observed that, because the question concerned a future event, the occurrence of which must necessarily be uncertain, the Parliament necessarily required the Court to be satisfied of the likelihood or risk that an offender will re-offend. His Honour construed “likely” as connoting “a high degree of probability”: (2006) 14 VR at 113 but went on to say –

Boughey v R

16 Accordingly, as Giles and Ipp JJA said [NSWCA 327 at [76] in TSL “likely”’ was construed to mean “probable” in the sense of “a high degree of probability” but not necessarily involving a degree of probability of more than 50 per cent. Quite what qualification is introduced by the phrase “not necessarily” is not further explained in their Honours’ judgment. Be that as it may, their Honours, although favouring the view expressed by McClellan CJ at CL in Winters, decided that because they were not persuaded that the decision in TSL was “clearly wrong” comity required that the approach of Callaway AP in TSL should be followed, concluding –

“[89] Accordingly, we would hold that the word ‘likely’ in sub-ss 17(2) and (3) denotes a degree of probability at the upper end of the scale, but not necessarily exceeding fifty per cent …”

17 It is, with respect, not easy to understand quite what this sentence means. Does it mean that the required probability might sometimes exceed 50 per cent and sometimes not? If so, would it usually exceed 50 per cent or only unusually? And in which cases? It is also difficult to see how the “upper end” of any scale can, in ordinary language, be regarded as denoting the lower half.

18 Mason P also supported the conclusion of McClellan CJ at CL in Winters demonstrating (if I may respectfully say so, utterly persuasively) why that is so. His Honour considered for (also very persuasive) reasons that the Court of Appeal of this State should not, in respect of this legislation, defer to the Victorian Court of Appeal.

19 The advice of Homer that mortals should stay out of the disputes of titans is reinforced in this case by my duty to conscientiously abide by the decision of the majority in Tillman, which I intend to do although, for the reasons I have already mentioned, it is not altogether easy to understand clearly what level of probability is actually to be applied.

20 The phrase was considered again by the Court of Appeal in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 (Mason P, Giles and Hodgson JJA). Following a discussion of Tillman their Honours said –

TSL

21 I think it is worth observing, in the context especially where the essential contest is whether on the one hand there should be a continuing detention order or, on the other, a continuing supervision order, that the relevant timeframe for considering the likelihood of re-offending is, in the latter case, whilst the defendant is under the supervision prescribed. It is in this context that the adequacy of that supervision needs to be considered. The nature of the supervision which can be provided is the subject of evidence to which I will return in due course. The “adequate supervision” envisaged by the sub-section must be sufficient to reduce the risk of the defendant re-offending by committing a further serious sex offence to less than the likelihood of which the Court is required to be satisfied under the first leg of sub-s 17(3): cf Attorney General for the State of New South Wales v Cornwall [2007] NSWSC 1082 per Hall J at [138] and [147].

The defendant’s criminal history

22 The defendant has a long criminal history comprising both sexual and non-sexual offences. Those in the latter class were relatively trivial, including for example, being convicted in 1964, then aged 16 years, of being neglected with no lawful means of support, in 1969 of using indecent language, in 1976 of trespass, in 1986 of wilfully making a false promise and in 1992 of possessing cannabis; somewhat more serious was his conviction of assault occasioning actual bodily harm in 1987 for which he was sentenced to 6 months’ imprisonment. In August 1986 he was charged with several serious offences arising out of events at Parramatta gaol, where he was then imprisoned, where a victim had sustained severe injuries following a violent attack allegedly involving the defendant. He was convicted of assault occasioning actual bodily harm and causing grievous bodily harm with intent to murder and sentenced to an overall sentence of 15 years’ imprisonment with a non-parole period of 11 years. However, in April 1999, his convictions were quashed following disclosures made in the Police Royal Commission that his alleged admissions had been fabricated. The Court concluded that the prosecution case was considerably weakened by the omission of the seemingly credible police evidence. There was a significant possibility that the jury may have entertained a reasonable doubt of the defendant’s guilt. Accordingly, a new trial was not ordered. Although there is other material coming from the defendant that suggests that he was indeed involved in the violence that resulted in the victim’s injuries, it would not in the circumstances be appropriate to hold this against the defendant and, for present purposes, I think this episode must be disregarded. At the same time it should be noted, when considering the defendant’s criminal record as a whole that the Court of Criminal Appeal has held that something like 8 years of the total of 35 years out of the past 38 years spent in prison resulted from what the Court said was a miscarriage of justice.

23 The sex offences commence with a charge of assaulting a female with an act of indecency on 21 December 1968 when he was 21 years of age. The victim was 17 years of age and knew the defendant as an acquaintance. The defendant pleaded guilty. In May 1969 he was convicted by Judge Head in the Sydney Quarter Sessions and was fined $150 and a 3-year good behaviour bond was imposed. The sentencing remarks of his Honour have been lost. The victim’s statement, however, is available and discloses what, on its face, was a serious and frightening assault of a sexual character. If accepted by the sentencing judge, it is difficult to understand the sentencing outcome. The defendant’s statement to the police is also available. He admitted that he had kissed the victim and “then I guess I got carried away” but denied the ability to remember exactly what he did, although he conceded that the complainant’s allegations involving violence “could be right”. He said that he just wished to “try my luck, I did not intend to rape her, but I got carried away and went too far”. There was no allegation of rape. It was a condition of the bond that the defendant should place himself under the supervision and guidance of the Adult Probation Service. It is clear that the defendant was not troubled by the recognizance to be of good behaviour since he committed another sexual offence on 9 July 1969, six weeks after his earlier conviction. This time the defendant pleaded not guilty to the charge but was subsequently convicted. Again, the sentencing remarks are now missing, as is the transcript of the trial. However, it appears from evidence taken at an earlier but aborted proceeding that the victim, aged 23 years, had come to the premises where the defendant lived, looking for a friend. Her evidence was that the defendant said, “We don’t want sluts hanging around”, provoking her to slap him. The defendant dragged her into the house, hit her in the face and, despite her struggles, inflicted forceful anal intercourse. Despite the defendant’s denials of any sexual act, he was convicted and was sentenced on 28 November 1969 to 7 years’ imprisonment with a non-parole period of 5 years. The defendant’s third conviction for a sex offence was in July 1978 in the Supreme Court upon a charge of rape. The offence was committed in early January 1978. Again the sentencing remarks and the transcript of the trial cannot be found. The transcript of the committal proceeding and the record of interview of the defendant’s co-accused are, however, available. In that material it appears that the defendant was a passenger in a car driven by the co-accused who claimed to have known him for only one night prior to the night in question. The two men picked up a female victim, then aged 16 or 17, a male friend of hers aged 17 years and his 13 year old sister. Rather than drive them to their promised destination, the car travelled along a bush track where the defendant alighted, dragging the victim with him. The defendant claimed to have a gun and threatened to use it “if you do anything stupid”. He shook the victim and made her take off her pants, digitally penetrated her and then had vaginal intercourse. He was sentenced in July 1978 to 8 years’ imprisonment with a 3-year non-parole period. It is important to remember both in relation to this and the second offence that the factual basis for the convictions and the sentences cannot be known with any real or, to my mind, acceptable certainty. It is notorious that, even following a trial, the facts upon which a sentencing judge acts must depend on the judge’s view of the evidence, consistent of course with the verdict of the jury. In particular, it often occurs that a sentencing judge may well not be satisfied of an alleged aggravating feature in the Crown case, where it is not admitted or is disputed, to the necessary degree of certainty. In the absence of the sentencing remarks, it is necessary to be cautious in drawing conclusions about the factual details of the events, although its general character may be clearly enough understood. So far as the defendant is concerned, for example, the imposition by this Court in respect of the offence of January 1978 of a surprisingly low non-parole period suggests that the sentencing judge did not altogether accept that the offence occurred as alleged by the complainant in her testimony in the committal proceedings, since had his Honour done so, it is very difficult to see how a non-parole period of three years was less by a considerable margin than the circumstances of the offence warranted. It seems that the defendant’s response to the charge was initially to deny that anything untoward had occurred. When he was shown the record of interview made by the co-offender it was alleged that he said to the police officer, “He has really given me some, I know what made me root her, it’s the piss and the drugs that have sent me off my head. Do me a favour and blow my head and when they lock me up they’ll throw the key away”. In light of the fact that the defendant had emphatically refused to make a statement or be interviewed, the reliability of this alleged admission comes into question. Nevertheless, he was convicted of rape and there was ample evidence justifying that verdict. The defendant was released on parole in respect of the 1978 offence in July 1981. Notwithstanding that he was on parole he committed another offence of having sexual intercourse without consent five months after his release. He was tried following a plea of not guilty and convicted in March 1982. He was sentenced to a period of four years’ imprisonment to commence on 10 January 1986, presumably the date upon which his earlier sentence expired. The Court of Criminal Appeal in September 1982 set a non-parole period of near enough to three years and 11 months commencing in March 1982 and expiring on 16 February 1986. Again, the sentencing remarks are not available and, as I apprehend it (the decision of the Court of Criminal Appeal not being tendered before me), I cannot use that decision for the purpose of any factual findings. However, the circumstances of the case seem clear enough from the transcript of the trial. The defendant was a bouncer at a disco where he met the victim, aged 23 years. Although she had seen him before, she spoke with him for the first time that night. He bought her some drinks and then she left to go home. As she did so the defendant followed her, gave her a kiss and offered to walk her home, an offer which she accepted. On the way home he pulled her to him and started to kiss her. Despite the victim’s attempts to push him away and scream the defendant “slammed his hand over my face”, pushed her against a wall, pulled down her pants, hit her across the face and then inserted his penis into her vagina. Afterwards, he took her across the street, told her not to tell her boyfriend or mother what had happened and left her. The victim immediately went home to her mother and made a complaint and ultimately repeated it to the police. The defendant admitted that he had sex with the victim but alleged it was consensual. It is clear that the jury was satisfied beyond reasonable doubt that it was not consensual.

24 The defendant was released at the end of August 1984 on parole in respect of the fourth conviction. Almost 11 months later he committed his fifth sexual offence of indecent assault. Again he pleaded not guilty but was again convicted after trial. He was sentenced to a fixed term of 9 months’ imprisonment commencing 18 September 1986 and expiring on 17 June 1987. It will be seen that this sentence was wholly absorbed within the balance of the sentence imposed in January 1986. The sentencing remarks are not available but the transcript of the trial has been tendered. The Crown case was that the defendant met the female victim, whom he had known for about seven months, at a Social Security Office. They left the office together and, as it happened, caught the same bus. The defendant offered to carry the victim’s bags to her home and, when he had done so asked to come inside for a cup of tea. She agreed, there was a conversation in the kitchen, and the victim showed the defendant various rooms of the house. When they were in the victim’s bedroom the defendant pushed her face forward onto the bed, twisted her arm behind her back, swung her around to face him and kissed her despite the victim’s repeatedly asking him to stop and struggling to free herself. The defendant held the victim down and fondled both of her breasts over her clothing. When she threatened to tell the police he threatened to “break every bone in your body”. The victim was crying, the defendant stopped and, when he was told to leave the house he did so. The defendant, in a sworn statement, told the jury that she had instigated some sexual activity, but that when he tried to take it further she told him to go and he did so. It is clear that the jury rejected this account. The sentence again seems to be unjustifiably lenient but, in the absence of the sentencing judge’s remarks, it is impossible to say more.

25 The defendant’s sixth sex offence was committed in July 1996, by which time he was 48 years old. Once again he was on parole, having been released in the previous month. On this occasion, however, he pleaded guilty to the charge of aggravated sexual intercourse without consent and was sentenced to 12 years’ imprisonment commencing on 12 July 1996 with a 9-year non-parole period. This is the sentence which expired on 11 July 2008 and was succeeded by the interim detention order made by Johnson J. Relevant statements are available and have been tendered together with the sentencing judge’s remarks. The defendant had known the 24 year old victim as she was the girlfriend of one of his former cellmates. He turned up at her house, uninvited, early in the morning and, when he asked to come in for a cup of tea, the victim allowed him to do so. At the time her 3-year old son was at home. When they were in the kitchen, the defendant produced a large carving knife from his bag, grabbed the victim’s breast, slammed the back of her head against a cupboard and threatened her not only with violence but to rape her in front of her son. Induced by the fear that the defendant would kill her or her son, she submitted to a succession of serious sexual assaults over a period of something over three hours. During this time the victim’s 3-year-old son repeatedly walked into the room. Eventually the victim and her son escaped from the house police were alerted. When police arrived the defendant was still in the house and refused to surrender to police for about five hours. The offence was premeditated. The defendant told the victim, amongst other things, that he had pretended to have amnesia and was going to sue the government, the police and the gaols [sic] though “it’s all bullshit”. When interviewed by the police the defendant denied the offence and said he did not know the victim. He claimed to have amnesia and did not know where he was the previous night and somehow had woken with the victim in bed cuddling him. He claimed that he did not know who he was and could not remember anything. As the sentencing judge noted, quite apart from the indignities to which the victim was subjected, the fact that some of them occurred in the presence of her 3-year old son emphasised the gravity of the crime. The sentencing judge observed that the defendant was manipulative and might well be able to manipulate those, including doctors and psychiatrists, who might be involved in attempting to aid his rehabilitation. An appeal by the defendant against the severity of his sentence was rejected by the Court of Criminal Appeal on 15 March 2000.

26 The effect of this criminal history has been, as I have noted, that the defendant has spent 35 of the last 38 years in prison. Since he became an adult he has only spent the following short periods outside gaol: 1966 to 9 July 1969; from 1975 until 10 January 1978; from 25 July 1981 to 14 November 1981; from 31 August 1984 to 25 October 1985; from 7 September 1995 to 9 May 1996; and from 13 June 1996 to 12 July 1996, when he was arrested following the last of the sexual offences.

General background of the defendant

27 The defendant is a Caucasian male presently 61 years of age. He is the fourth youngest child of a family of 15 children. It appears that two of his brothers and at least one of his sisters also wish to remain in contact with him and generally speaking have indicated some willingness to support him if he is in a position where they can do so. The defendant reported that he was sexually abused as a 2-½ year old child. Considering his age, and his general history of reliability, I doubt that this is true but I do not regard it as presently material. The defendant has said that he has had two significant relationships in his life, one when he was 16 years old but that that partner died in a car accident ten months after they met and a marriage which lasted for something over two years from February 1975. There was a daughter from that relationship who was born around February 1976 but with whom the defendant has not had any contact. It is clear that the defendant has from time to time abused both alcohol and drugs. I have already referred to the defendant’s criminal history.

Risk assessment

28 A primary tool for assessing risk of sexual and violent re-offending actuarially is called STATIC-99. This instrument was designed to assist the prediction of sexual and violent recidivism for sexual offenders. It comprises ten items and produces estimates of future risk of a class of offenders identified by a number of what are described as risk factors. Since those risk factors concern matters that, one way or another, have already occurred, such as the presence of prior sexual offences and the occurrence of an intimate relationship for a specified period, they are static risk factors as distinct from dynamic risk factors. Recidivism estimates provided by the instrument are group estimates based upon reconvictions and were derived from groups of individuals with these characteristics amongst the sample size of something like 1,300 sexual offenders. (Various numbers of about this quantity are mentioned in the tendered material.) It should be noted that the sample size of “high risk” offenders was only about 130, a very low number indeed if generalisations are to be assayed about their chances of re-offending. It is obvious that the estimates cannot directly correspond to the recidivism risk of an individual offender, which may be higher or lower than the estimated probabilities, not only depending on other risk factors – or, for that matter what I might call “anti-risk” factors – not measured by the instrument but because there can never be a direct link between any particular individual and outcomes for a group which will certainly include individuals with both static and dynamic risk factors which may well vary significantly from those in any particular case. (A limbless man with advanced Alzheimer’s disease could still be assessed as “high risk” under STATIC-99 though, to be fair, it is obvious that he would not be subjected to the test. The point, however, is that individual’s may have many characteristics that are not at all obvious that might reduce the chances of re-offending that are not measured by STATIC-99.) The authors themselves state that “it demonstrates only moderate predictive accuracy”. It is important to observe, I think, that “high risk” simply represents the class of which 39% re-offended by the commission of sex offences: not only is it not, as it were, an independent description of risk, it does not purport to measure the likelihood of any person re-offending by the commission of a serious sex offence. Absent some more convincing material, I would not accept that the predictive accuracy of STATIC-99, so far as the likelihood of the defendant committing a further serious sex offence is concerned, is more than indicative of a somewhat increased risk of sexual re-offending as distinct from providing a measure of that risk

29 The defendant’s raw score on this instrument was 8, placing him in the “high-risk” category relative to other male sexual offenders. On average individuals with his characteristics sexually re-offend at 39% over five years, 45% over ten years and 52% over fifteen years. The rate for any violent recidivism (including sexual) for individuals with these characteristics is, on average, 44% over five years, 51% over ten years and 59% over fifteen years. It is obvious simply by looking at these figures to see that some adjustment would be necessarily made, for example, in light of the defendant’s present age of 61 years, it being generally accepted that offences of violence are far more rarely committed by persons of that age, although the statistics that support this opinion are, perhaps, somewhat questionable. As I discuss below, there is little doubt that the defendant has a heart condition of some severity. Such conditions are not factored into the STATIC-99 table. Furthermore, the authors accept that a period in the community without offending reduces risk. Where, as here, there has been no offending but the defendant has been in prison for a very long time, there is no adjustment of risk, it seems almost certainly because the potential significance of this factor has not been considered. It obviously cannot be assumed that, but for his incarceration, the defendant would have committed a further serious sex offence.

30 It is wrong to use these figures to suggest, for example, that there is a 39% probability that the defendant will re-offend within five years, though this is the language used by the authors of the instrument. He is in a class of which 39% of a small group of men with the same score (though likely on differing factors) at the time of the research leading to the formulation of the instrument, re-offended within five years.

31 Dr Jeremy O’Dea, who was qualified by the State for the purpose of assessing the defendant, pointed out that there are significant limitations in the use of STATIC-99 as an assessment of risk. He noted that the margins of error for risk estimates using the test, particularly in endeavouring to make risk predictions for an individual with an individual’s score, are widely considered to be so high as to significantly reduce the appropriateness of relying on this score alone to make decisions about release into the community. Dr O’Dea’s attitude to the STATIC-99 assessment is best summed up, I think, by the observation during his evidence that if someone scored highly, that would not give you confidence that they were not going to re-offend. Furthermore, Dr O’Dea noted that the risk measured is that of engaging in a further sexual offence, rather than a further serious sex offence within the meaning of that term relevant for present purposes. Considerable caution must therefore be exercised in applying the term “high risk” to any individual where the question is whether he is likely to commit a serious sex offence. (For example, the sample group included exhibitionists who, as a group, are very frequent recidivists.) Dr O’Dea therefore concentrated on what he called dynamic risk factors specific to the defendant. I will come to these in due course.

32 The State also qualified Professor David Greenberg to provide a psychiatric assessment of the defendant. Professor Greenberg corrected one error in the STATIC-99 assessment which reduced his score of 8 by 1 although, as a score of 6 or more constituted a “high risk” category rating, the conclusion from the report was not altered. The severe limitation with actuarial scales such as STATIC-99, as Professor Greenberg pointed out, is that it might inform about a group of offenders but does not really identify the probability that any specific sex offender will re-offend. Nor, he noted, have the scales been fully validated on an Australian population although a study in Western Australia found that it was acceptably valid. It has, however, been widely validated in several Western countries, including Canada. Professor Greenberg considered that the instrument has been shown to have moderate accuracy in predicting sexual re-offending behaviour as compared with clinical assessment alone. In short, it is better than chance in its prediction but must be used in conjunction with assessments made of the particular individual. These may be described, as I have already suggested, as dynamic risk factors. A probability that is assessed by using statistics that are only “better than chance” is very much less than substantial.

33 Dynamic risk factors relate to sexual recidivism but, as the name implies, can change over time and are amenable to change. These dynamic risk factors include such matters as intimacy deficits, social influences, attitudes tolerant of sexual abuse, self-control and sexual self-control. Information about these typically, of course, come from the offender himself and it is therefore to be confident about whether an offender is telling the truth about them. (I interpolate that I have formed a view generally adverse to the defendant’s willingness to tell the truth about any matter which he might think will affect his chances of a favourable outcome, whether this occurred in the past relating to his false denials of sexual assaults, his history of medical conditions, his recollections of events or present facts. I will return to this issue in due course.)

34 Ms Dumasia is a registered psychologist employed by the New South Wales Department of Corrective Services as a forensic psychologist who provided a report on her assessment of the defendant. It was she who administered the STATIC-99 test and also, in consultation with the defendant, assessed the dynamic risk factors relevant to his situation. A significant problem, as it seems to me, with a number of these factors is that they refer to events that occurred a very long time ago, not necessarily because his attitudes have changed, but simply because he has spent so many of the last 38 years in gaol. Ms Dumasia placed significance on the offender’s apparent denial – directly or indirectly as by way of denying recollection – as suggesting that he was tolerant of sexual abuse. I do not accept the validity of this reasoning. The defendant certainly did not indicate to Ms Dumasia any remorse for his offences but this was in the context of, in substance his denial either that he had committed them or that he recalled what happened. It is obvious that one explanation for a refusal to acknowledge responsibility for a particular crime indeed, the more likely explanation, is that the person understands that to do so could lead to an adverse outcome (such as punishment) or an acknowledgement of wrongdoing which he does not wish to make, the point being, of course, that this motive for not acknowledging of wrongdoing demonstrates at least an understanding that what was done was wrong. In respect of those offences which the defendant claimed resulted from false allegations and in fact the sexual conduct complained of was consensual, the falsity of these assertions does not show that he thought that what he did would have been justified if the complaints were true.

35 Dr O’Dea pointed out that the defendant would be difficult to work with in the sense of managing problems he has evidently got with sexual offending until he tried at least to understand in his own mind what had been going on at the time. It is important to note, as Dr O’Dea observed, that there is no good evidence that says that people who deny their offences are going to be at a greater risk for this reason of re-offending though but it does make it more challenging for supervisory counselling.

36 Ms Dumasia concluded that on the basis of static and dynamic risk factors the defendant should be assessed as being in the high category of sexual re-offending relative to other adult males. She concluded as follows –

“An offender is able to manage his risk of re-offending by identifying his risk factors and developing and implementing management plans to address these. Mr Thomas currently accepts limited responsibility for his sexual offending behaviour. Since his imprisonment he has not completed any programmes to address his offending behaviour. Whilst Mr Thomas was able to identify some factors that may have contributed towards his offending behaviour he lacks any comprehensive and realistic management strategies to effectively manage these in future. Furthermore his ongoing ability to implement the coping strategies he has learnt in order to reduce his level of anxiety upon release is debateable considering his past failures and his reports of continuing to suffer panic attacks.

…

Given Mr Thomas’s past difficulties with coping in the community and that such factors may increase the likelihood of his re-offending should he be released to the community his risk would be best be managed in accommodation where he has limited access to potential victims, where he can receive both psychological and medical support as well as being monitored and assessed for his ability to successfully adapt to life in the community.

There are currently no treatment programmes available to Mr Thomas in the community which would address his high level of risk and needs.”

37 “Being in the high category of sexual re-offending relative to other adult males” does not translate into “a probability at the upper end of the scale” that the offender will commit a “serious sex offence” if released from custody. Nor did Ms Dumasia suggest that that it did.

38 Dr O’Dea thought that the defendant’s primary psychiatric problems appear to have been related to his personality and best understood as an antisocial personality disorder characterised by history of repetitive antisocial behaviours from at least his early teenage years. Dr O’Dea also noted the defendant’s history of substance abuse, including alcohol and cannabis abuse and a history of chronic anxiety and depression including longstanding problems with panic attacks, depression and suicidal behaviour. However, Dr O’Dea thought that his history of depression and suicidal behaviour was likely to be better understood in the context of his personality, life circumstances and limited repertoire of coping skills under stress, rather than seen as a major depressive disorder. I rather think Dr O’Dea dismissed the reliability of the defendant’s asserted experiencing of auditory hallucinations as well as his claimed problems with amnesia and short-term memory. Of course, these manipulative or, it may be, exaggerated symptoms do not suggest that the defendant is fully cooperative in enabling as assessment to be made of his prospects for rehabilitation. In light of his repeated offending and breaches of parole, this conduct highlights the scepticism which necessarily attaches to any promises that he might make concerning his conduct which he does not see as being in his interests. Although Dr O’Dea said that from a full clinical psychiatric risk assessment and risk management perspective, and as judged by actuarial risk instruments such as STATIC-99, the defendant would be considered as having a significantly higher risk of engaging in further sex offending behaviours on his release into the community in the long term, overall Dr O’Dea did not consider that the current evidence regarding the assessment of risk in these matters is sufficiently accurate to predict with sufficient precision the defendant’s likelihood of engaging in further sex offending behaviours on release into the community.

39 Dr O’Dea read the report of the cardiologist (which I discuss below) and understood that the defendant’s health was, as he said, significantly compromised. It might not preclude him from erections and ejaculation but it would certainly, as appears from the cardiologist’s report, limit his level of exertion and exercise which would have a significant impact upon his overall risk.

40 Dr O’Dea concluded that neither being compelled to participate in CUBIT or a further period of custody is likely of themselves to significantly reduce the defendant’s risk of engaging in further sex-offending behaviours on release into the community. He thought the obverse was true as well, namely that the defendant’s being released not having undertaken CUBIT would not lead to an increased risk of offending. This opinion, however, is given in the context of Dr O’Dea’s view that the literature does not show any good evidence that custody-based psychological treatment programmes of whatever character have shown significant reduction in risk of re-offending for people who have engaged in them.

41 Although Dr O’Dea did not simply say so, it seems to me that the effect of his opinion is that managing the dynamic risk factors in the context of a structured and supervised management programme in the community was likely to be more effective in reducing the defendant’s long term risk. This opinion suggests that a better way of reducing risk than requiring the defendant to undergo CUBIT in the custodial context is to place him in a highly controlled environment where he can be closely supervised and his response to release into and access to the outside community can be monitored.

42 As I have already mentioned the defendant was also assessed by Professor Greenberg who noted, amongst other things, that the defendant was difficult to interview because he tended to be a poor historian and it was necessary to repeat questions from time to time. He also tended to be slow to respond to questions and was evasive and vague in his replies, often claiming he had no recall of past events including losing his memory of all behaviour surrounding the offences. Since other medical evidence shows that there is no organic basis for any claimed amnesia, I would simply not be prepared to accept the defendant’s claims of amnesia as truthful. It may well be that, over the years, particular details have been lost to him and certainly several of the offences may have been committed when he was affected by alcohol. Taking these things into account, it is nevertheless obvious that he has a far greater recollection or at least ability to recollect than he alleges. His attempts to manipulate the doctors and other persons dealing with him for the purposes of the present exercise do not mean, of course, that he is more likely to commit further serious sex offences upon release. However, it increases the difficulty of assessing whether the extent of such risk as undoubtedly remains is low enough to justify release. In respect of this question, of course, it is necessary to be reminded that it is for the State to demonstrate such a level of risk as requires an order for continuing detention or supervision. The defendant does not have to establish that he is entitled to his liberty.

43 Overall, the effect of Professor Greenberg’s mental state examination of the defendant is that there was no evidence of any significant cognitive impairment and, although he claimed his mood was “very depressed” he appeared to be “normal” and there was no evidence of any lability of mood. Despite complaints of panic attacks during the two lengthy interviews with the Professor, there was no evidence of overt anxiety symptoms. The Professor provisionally opined that the defendant probably qualified for the diagnosis of a panic disorder, with possible agoraphobia and depressive symptoms. More significantly, I think, Professor Greenberg confirmed Dr O’Dea’s opinion that he had an antisocial personality disorder with associated borderline traits which, somewhat more strongly than Dr O’Dea, Professor Greenberg described as severe. An essential feature of a personality disorder is that there are enduring patterns which are inflexible and maladaptive and cause significant functional impairment with subjective distress to the person. There is an enduring pattern of an inner experience and behaviour deviating markedly from the expectations of the individual’s culture. Another feature of an antisocial personality disorder is that the pervasive pattern of disregard for and violation of the rights of others that often begins in early adolescence and continues into adulthood. The defendant’s history certainly demonstrates this feature. Professor Greenberg noted that persons with antisocial personality disorder behave unlawfully and are often described as being deceitful and can be irritable and aggressive as indicated by repeated physical fights or assault associated with a reckless disregard for the safety of self and others. They will often lack remorse. Professor Greenberg pointed out, what at all events must be obvious, that because of the defendant’s imprisonment for most of his adult life he has to a large extent become institutionalised.

44 Professor Greenberg said that he has adopted a clinically guided and actuarial approach to the risk assessment of the defendant but wished to bring to the Court’s attention the point that neither of these two methods can predict sexual re-offending with any degree of certainty. So far as the STATIC-99 assessment is concerned, he made similar points to those to which I have already referred. Applying this instrument to the defendant, Professor Greenberg concluded that the defendant fell into the “high risk category” relative to other sex offenders and, relative to the general male population without sexual charges or convictions, should be regarded as at “higher” risk. Professor Greenberg said that it was a severe limitation of scales such as STATIC-99 that, although they inform about a risk group of sex offenders relative to other sex offenders in the same category, they do not identify which specific sex offender will actually re-offend and which will not. He points out that all that can be deduced is that, in a group of sex offenders with similar scores, a percentage will re-offend in a 15-year or longer period while the remaining group will not re-offend based on re-arrest rates. He points out that, of course, re-arrest rates will generally be regarded as an underestimate of the true or absolute re-offending rate. Despite the limitations, however, Professor Greenberg’s reported that the STATIC-99 instrument had been shown to have moderate accuracy in predicting sexual re-offending behaviour as compared to clinical assessment alone. Both were necessary and were undertaken by Professor Greenberg.

45 Professor Greenberg considered that the defendant tended to have attitudes tolerant of sexual offending behaviour with poor insight into his psychological and sexual offending problem. He has low average or borderline intellectual functioning associated with impulsive behaviour. He had poor coping skills whilst living in the community. There were previous examples of aggressive behaviour and his criminal history involves sexual and non-sexual crimes. He has shown little empathy with regard to his victims and a poor understanding of the reasons for his sexual offending behaviour. He has become institutionalised and tends to have poor strategies or plans regarding his future. Because of the defendant’s refusal to participate in CUBIT, his failure to acknowledge his sexual offending behaviour, allegations of amnesia, previous denials and attempts at justifications and rationalisations of his conduct, Professor Greenberg thought that, at all events, successful completion of the CUBIT programme was questionable. Without significant changes in the defendant’s pattern of maladaptive behaviours, his prognosis was guarded. Professor Greenberg thought that neither psychological treatment nor biological treatments for sex offenders could cure the defendant’s difficulties so that there was still a possibility that he would re-offend although he thought that risk would be partially reduced with successful treatment. Even with the benefits of treatment Professor Greenberg thought that the defendant would remain a relatively high risk for re-offending in the short term. He added, however, that once the defendant had a proven track record of success with a treatment and management programme, the risk analysis could then be re-evaluated and an adjustment made in the assessment.

46 The question whether the defendant would or would not re-offend could not be stated, in Professor Greenberg’s opinion, with any scientific degree of certainty. Both methods of assessment, namely actuarial and clinical, had uncertain scientific validity with, as I understand him, only moderate accuracy. Even so, Professor Greenberg thought that there was a high degree of probability that the defendant was likely to commit further serious sex offences if he does not receive adequate specialised psychiatric counselling, strict parole-like supervision and social services. (In using the phrase “serious sex offences” I do not think that Professor Greenberg was confining himself to the aggravated offences to which the phrase refers but meant sexual offences that were serious in ordinary parlance.) Such services would likely lower the risk but it would still be considered clinically high and the defendant would require significant support integrating himself back into the community and overcoming community stigma difficulties. Professor Greenberg did not given an opinion as to whether the defendant required continued detention as distinct from extended supervision.

Rehabilitation programmes in prison

47 The account below is largely a summary of the evidence, much of in affidavits and reports and some in oral evidence. To ease the task of reading I have mostly avoided editorial marks identifying quotations or elisions. What appears is, at all events, my understanding of the effect of the tendered material.

48 Mr Jason Ware, a registered psychologist and the State-wide Clinical Co-ordinator of sex offender programmes within the Department of Corrective Services since October 2005, provided an affidavit and gave evidence that dealt generally with sex offender programmes within the prison system. The following information is largely taken from his evidence but I also refer to comments made by other witnesses called by the State in respect of this matter.

49 The Department presently provides what is called “treatment” for sex offenders through three custodial group-based treatment programmes which have the goal of reducing the likelihood that offenders will commit further sex offences when they are released from prison. These programmes are called CUBIT (meaning Custody-based Intensive Treatment), CORE (meaning Cubit Outreach) and PREP (a pre-treatment programme). Such high intensity group-based treatment for those categorised as high-risk sex offenders is presently only available within a custodial environment. (I discuss later the meaning of “high-risk” in this context. It is a term which needs to be treated with some caution.) The CUBIT programme is aimed at sex offenders assessed as being in the moderate to high-risk category for sexual recidivism. It is a residential programme that runs for approximately eight to ten months, the length of the course depending on the progress of the individual participant. Participants admitted to the programme are accommodated in a special, self-contained forty-bed unit located in the Metropolitan Special Programme Centre (MSPC) at Long Bay Correctional Centre. This setting is designed to help offenders work intensively on changing the thinking, attitudes and feelings which led to their offending behaviour. The facility is run as a “therapeutic community” in which it is expected that participants will practise newly acquired skills, behaviours and attitudes on a daily basis, with advice and feedback from specially trained psychologists and custodial officers. The unit is self-contained and designed as a safe context for the practice and exercise of more pro-social attitudes and behaviours. The staff within CUBIT are specially trained and experienced professionals in the management and treatment of sex offenders, including a therapeutic manager, eight psychologists, a welfare officer, custodial officers, educational staff and an Aboriginal special projects officer. Participants in the group have a mixture of offending backgrounds. It appears that offenders are more likely to recognise and challenge distorted thinking patterns in participants who have different offending pattens to their own. An offender against adults, for example, may not be able to recognise the distorted thinking that leads him, or like offenders, to commit offences, but he will recognise as distorted the thought processes of persons who commit sex offences against children. As will be noted later, one of the reasons given by the defendant for not attending CUBIT is his attitude to paedophiles. Between therapy sessions, participants in the CUBIT programme are expected to complete written homework tasks, practice new skills, consider and process the specific issues currently being worked on and provide support and encouragement to other offenders in the community. Weekly community meetings and other community activities emphasise the importance of community involvement for all participants and assist with the attainment of treatment goals. It is obvious that the programme is designed to encourage maximum effective participation and, of course, to enable staff to identify offenders who are not seriously attempting to undertake the programme.

50 The CORE programme is a prison-based non-residential therapy programme for male offenders who have sexually abused adults or children. It is only suitable for sex offenders who have been assessed as having a low to low-moderate risk of recidivism. As such it was not available to the defendant and it is not necessary to further deal with it.

51 The PREP programme is aimed at introducing and preparing offenders to participate in a more intensive programme such as CUBIT. It is not a treatment programme in itself. It has been available since about 2006. It involves participation in a group for up to 14 weeks with a weekly group session and some ongoing homework tasks between sessions. It is aimed at assisting offenders to deal with difficulties they might be experiencing and providing information about the process of treatment. In giving an opportunity to be part of a group environment it prepares them for entry into CUBIT. It also enables assessment of their suitability for the more intensive programme. There are suggestions that offenders who do the PREP programme before going into the intensive sex offender programme are less likely to re-offend than those who do only the latter.

Effectiveness of treatment programmes

52 As Mr Ware said, evaluating the efficacy of sex offender treatment programmes is difficult. There are a number of reasons for this. First, there is a relatively low base rate of sexual re-offending at all events which means that large samples and relatively long follow-up periods are needed to reveal any significant effect. Moreover, evaluations that are being undertaken may measure the effect of programmes which have since been superseded. In the nature of things, only a small number of offenders complete treatment each year. I do not intend to go into the complex statistical methods used in attempts to assess treatment effectiveness for limiting recidivism but they cannot be regarded as producing more than indicative predictions and, even then, only for groups and not individuals. It is obvious that no conventional control group is available and, given the very wide range of personal and environmental differences affecting individual released offenders, that they comprise a small group emphasises the difficulty of drawing useful general conclusions. Mr Ware noted that there had been five review studies undertaken by combining the results of a large number of individual studies in the hope of obtaining a sample size that would detect small effects that have occurred in the last twelve years. These studies found, broadly summarising Mr Ware’s analysis, a reduction in a re-offence rate from around 17% (untreated) to 10% (treated). Of course, it is virtually impossible to apply this statistic to offenders of any specific history and age, let alone to specific offenders. Moreover, the further offences committed by the offenders studies are not separated into serious sex offences and other sex offences. In my view, the figures suggesting a differentiation of 7% are of very doubtful validity, expressing little more than the possibility of improved chances of rehabilitation, let alone any useful forensic basis for assessing whether any particular individual is less likely to re-offend.

53 CUBIT has itself been the subject of what Mr Ware described as “preliminary investigations” evaluating “within treatment” changes by asking whether there had been a change in dynamic risk factors, such as sexual deviancy and comparing recidivism rates between those offenders who have not had treatment and those who have. Within treatment changes have suggested some significant progress, whilst a pilot study of comparative recidivism rates of an admittedly small sample showed that only 6% of the treated offenders had been re-imprisoned for a sexual offence after an average of something over three years when, using a risk predictive instrument (STATIC-99, which I will discuss later) it would have been expected that something like 26% would have re-offended without treatment over a five year period post-release. (The use of “expected” in this context is, for the reasons I have already discussed, problematical.) One simply has to describe this outcome to indicate its highly provisional character. The “high risk” offenders in the sample were only twenty, of whom two had re-offended after something over three years whilst 39% of that cadre who were untreated re-offended after five years. Mr Ware, I think, did not regard this study as anything more than suggestive, although it provides some support for the efficacy of the CUBIT programme from a policy perspective.

54 It seems obvious that some kind of positive rehabilitation programmes should be undertaken in relation to all offenders and sexual offenders are, of course, no exception. It also seems obvious that programmes aimed at changing attitudes that may have contributed to his or her undertaking of criminal activity can have a positive effect, even though that effect may be difficult if not impossible to measure. The psychological techniques used in the CUBIT programme are widely used and relatively well understood psychological techniques. Certainly the studies support the provision of this treatment to serious sex offenders. It is fair to say that there is a better chance that a sex offender will not re-offend if he has undertaken CUBIT than if he had not and this may well be enough to justify the programme. But it is impossible to meaningfully assess the extent of that better chance. It may well be that an indiviual would not further offend even if he had not undertaken the programme. Measurement of the chances is even more difficult if one attempts to distinguish between the commission of serious sex offences and other sex offences. The Act requires an assessment focussed on the risk of commission of the former category.

The defendant’s attitude to CUBIT

55 The defendant has persistently refused to undertake CUBIT and stated he would prefer to serve his full sentence rather than go on parole. He claimed that the reason was that he would not mix with paedophiles and asserted that he would attack them because he had been sexually abused as a child. It must have been clear to the defendant that he could not get parole unless he successfully undertook the CUBIT programme and that he may be kept in continuing detention after his sentence was completed if he did not successfully undertake the programme. It is not easy to understand the reasons why he refused to undertake the programme, since there was plainly a very substantial inducement for him to do so. It is not impossible, of course, that the defendant does have strong feelings about paedophiles but I suspect that other reasons also led him to refuse him to undertake the programme. What those other reasons may be is necessarily speculative. I simply observe in passing that this refusal does not demonstrate any intention by the defendant to manipulate the process to procure his release: he must have known that his refusal would produce the opposite effect.

56 (I might mention that part of the CUBIT programme involves disclosure by offenders of their criminal conduct. If a prisoner in the course of the programme admitted to offences for which he had not been charged, Mr Ware said that the responsible officers were required to disclose those offences. The prisoners are warned about the possible effects of such disclosures and, as I understand it, the treatment programme is designed to enable a general disclosure but in such a way as does not require the information to be passed on. This is obviously a delicate and difficult question and it might well deter prisoners from undertaking the CUBIT programme if they felt that there was a risk that doing so might result in their facing additional charges. Nor should the professionals involved be faced with the difficult task of judging whether or not information should be passed on that might have this result. I mention this feature of the programme merely to suggest that it plainly needs to be addressed in a way that involves more than some ad hoc approach; I do not suggest that the defendant has committed undisclosed offences.)

Heart condition

57 The defendant has been diagnosed with several adverse medical conditions. Firstly, he suffers from cardiomyopathy, a disease characterised by reduced blood supply to the heart muscle and he was fitted with a pacemaker in January 2005. The defendant’s cardiac condition was assessed by Professor Richards in May 2008. Professor Richards’ report noted a number of heart investigations commencing in 1997, although in that case earlier complaints were, as I understand the report, found to be without a physical basis. However, there was undoubtedly a severe left ventricular dysfunction in 2004 involving moderate to severe dilatation and severe impairment of systolic function. Examination in March 2005 demonstrated a similar problem and a pacemaker was implanted in January 2005 to deal with recurrent syncopal episodes after electro-physiological assessment demonstrated impaired cardiac conduction. The defendant had suffered what was described as cardiac failure on 22 March 2005 and Dr Eikens noted on a review in May 2006 that the defendant had “very advanced heart disease”, expressing the confident opinion that the defendant would continue to require frequent medical intervention, not only to treat his heart failure but also other co-morbidities. Dr Eikens concluded that “regrettably, he will face a very low probability of life expectancy beyond 1-2 years”.

58 The defendant was placed on a range of heart medications which he still must take. On Dr Richards’ examination, it appeared that there were improvements in function compared with the defendant’s situation in 2005. He thought that the favourable changes might be due to the beneficial effects of medication. Professor Richards considered that the defendant’s cardiac prognosis was better than it had been three years earlier. It is possible that further improvement might occur. He concluded nevertheless that the defendant’s life expectancy was reduced by 50% due to cardiomyopathy. Applying the applicable figures from the Australian Bureau of Statistics, it followed that the life expectancy of the defendant was reduced from approximately 81 years to approximately 71 years. Professor Richards was asked whether, from a physical perspective, the defendant was capable of sexual offending, holding a knife and threatening a woman and physically capable of arousal and obtaining an erection, to which, perhaps not surprisingly, Professor Richards answered in the affirmative. In respect of the possibility of the limitation resulting from the defendant’s current condition – he having claimed that he could only take a few steps without serious breathlessness – the doctor noted that he was observed walking about a 100 metres without stopping and without any apparent difficulty.

59 I would not accept statements from the defendant that he laboured under a significant physical impediment without independent corroborating evidence. I note that the prison medical records show that from 2007 the defendant has not been admitted to hospital.

Claims of memory loss

60 So far as the defendant’s mental state is concerned, Dr Jolly found in May 1984 that the defendant was probably of average intelligence although in August 2005 Dr Reed, clinical neuro-psychologist, found that his then current level of intellectual ability fell within the low average to borderline range. The defendant reported to Ms Dumasia that he had attempted suicide on approximately thirty occasions but had not had suicidal ideation for a number of years though he is depressed. I think that in this context depressed should be seen as unhappy and not as clinically significant. Neither Professor Greenberg nor Dr O’Dea found evidence of cognitive impairment.

61 The defendant has claimed on a number of occasions that he was assaulted in prison in 1991 by being hit with an iron bar and sustained a fractured skull with accompanying memory problems. The prison records, including the Justice Health files, make no mention of such an assault. There is a record of his having fallen in the prison yard and suffering a bruise on his forehead and a note that he was sluggish and disoriented and diagnosed with a fractured temporal bone. It is fair to say, I think, that the defendant has frequently elaborated on and exaggerated the outcome of this occurrence. On admission to hospital, a CT scan was reported as normal and memory tests revealed no deficits or problems though his intellectual functioning was estimated in the low average to borderline range. For the present application a comprehensive assessment was undertaken at the request of the State by Associate Professor Paul Spira who is a consultant neurologist. CT scans and EEG investigation was undertaken. Not surprisingly Professor Spira’s report first deals with the history given to him both of the offences and his personal circumstances. Professor Spira, rightly in my mind, expressed scepticism about the reliability of the defendant’s accounts. He assessed the defendant as a cognitively intact man able to follow complex reasoning and provide a clear account of his situation to the extent that he wished to do so. His “remarkable liberties with the truth” in part are designed to dramatise his precarious state of health. From a direct neurological viewpoint he tested essentially normal and his performance in one of the examinations suggests a deliberate underachievement. Both EEG and CT scan detected no abnormalities. Professor Spira noted that, despite the defendant’s complaints of having had over 100 strokes he has in fact had none and there is no evidence of any traumatic brain injury.

COSP

62 Only available since August 2008, the Department has opened the first centre offering community offender support programme accommodation. This is at Long Bay and, in substance, is a refurbishment of part of that complex used to accommodate prisoners. The facility is under the direction and control of the Probation and Parole Service. It houses only male offenders, initially accommodating 35 and eventually up to 50 persons. During the day, residents of the COSP centre will be free to come and go from the facility, subject to any orders that, for example, a court might make. These orders may well significantly limit the freedom with which an offender such as the defendant will be free to come and go. There is a night curfew. Electronic monitoring equipment is available. The centre is staffed at all times with an on-site manager during the day with two accommodation support workers, an employment and an accommodation officer. There are no prison guards on duty. At night, two accommodation support workers are on duty. Staff see residents on a daily basis and have the role of assisting them to plan for moving to other accommodation in a less stringent supervisory regime. It is the responsibility of staff to ensure prescribed medication is taken by residents. Alcohol and drug abstinence is a condition of residence at the centre. Case management strategies are adopted with residents and daily routines created. It is a practical limitation of the centre that a resident might simply breach any night curfew imposed by leaving the centre because there is no physical restraint. Accordingly, to a significant degree, if the defendant were placed in COSP, his supervision would depend upon his compliance with the regime imposed. Of course, non-compliance by departure either during the day contrary to the applicable regime or at night to the curfew would be immediately known and steps taken to arrest him.

63 Although the defendant is manipulative and cannot be trusted to be truthful and he has in the past committed serious offences in breach of his parole obligations, I consider that the risk of his absconding in order to commit some criminal offence is unlikely. The sexual offences of which he has been convicted were largely impulsive and opportunistic although there are indications that, in respect of the last and most serious offence, there was some degree of premeditation. Even so, that offence arose out of his exploitation of some previous connection with the victim, a circumstance almost certainly not to be replicated. Any regime of psychological assessment and treatment required to be undertaken can be effectively supervised and, indeed, intensively undertaken. The extent to which this will be provided to the defendant depends upon the resources of the Department but plainly there is potential for significant intervention of this kind. Furthermore, although there are some medical issues, the defendant may be required to accept sex drive reduction medical treatment if prescribed by a medical practitioner, such as anti-libidinal treatment. The drugs which are most effective for this purpose are probably contraindicated by the defendant’s medical condition which, although exaggerated by him, is a real factor to be taken into account. There are less effective but nonetheless useful drugs that he is able to take and which do have some significant effects.

The defendant changes his mind

64 During the proceedings, the attitude of the defendant to the prospect of treatment changed. Evidence was called on behalf of the State on 29 and 30 July 2008, at the conclusion of which I intimated that I was, as I had thus far considered the matter, tentatively unconvinced that the State had made out its case for continuing detention. I noted, however, that the defendant’s assertions about, for example, his amnesia and his state of health could not be believed without supporting evidence and that he had not demonstrated that he was able to be trusted not to offend were he given any freedom. I suggested that the application could be adjourned to permit the defendant to undertake PREP, at least, to demonstrate some preparedness to comply with a supervisory regime. I did not indicate that, even if the defendant were to undertake PREP, I would make an extended supervision order as distinct from a continuing detention order but I did intimate that, as I then saw the matter, in the absence of any such demonstration, an extended supervision order might be unlikely. I think it probable that, in light of these comments, the instructions of the defendant that he had given previously to his legal advisers as to the course of the proceedings were changed.

65 The defendant then gave evidence. He was asked first by Mr Johnson whether, in light of the discussions that had occurred in the Court over the last two days, he had anything to say about his future intention to participate firstly, in PREP. He said –

“Yes. Well I finally realised to myself I have got a problem and I do need help and for the first time in my life I admit 100% I do have a problem and I have had it for a long, long time and I want to help myself and break my habits of the past. I want to try to prove a worthwhile citizen in the future. I believe my health is not - - “

66 I interrupted him to point out he was not being asked a general question. He then said that he had no problem with undertaking PREP, commenting, “I can swallow my pride”. He accepted that he was capable of living side by side with paedophiles in custody hence, as I understood him, he would be able to participate fully in group therapy treatment even if paedophiles were also involved. He said that he understood that the purpose of PREP was to prepare him to do CUBIT but if he were to do CUBIT it would involve his admitting his role in the sex offences for which he had been convicted. He responded that he admitted his guilt. He said that he could not remember a lot but “I remember more than I have been making out to be, because I didn’t realise that I had come under this law you know… paedophiles only. [I think this is a reference to the legislation pursuant to which the State’s application was made which, it seems the defendant did not think applied to offenders like him.] And like, you know, like – the outside world really scares the hell out of me, but I have family support now, which I never had before and I just want to, you know, I just want whatever time I have left I want to spend with my family…” (There is some evidence that the defendant did find living in the community unassisted difficult to copy with.) The rest of the defendant’s evidence really amounted to a plea, based on his medical condition, that he was incapable of sexual conduct. I think this was exaggerated and I did not believe him, though I would accept that he is not the man he was twelve years ago. He promised to abide by any rules and regulations to which he was subjected when under supervision to prove himself trustworthy. He realised that he was not in a very good position in terms of trust but he asserted that he was no danger to anyone. Although I do not doubt that the defendant meant what he said in these regards, of course his assurances cannot really be relied on.

67 Arrangements were then made for the defendant to undertake at least a preliminary PREP programme. I was informed by Senior Counsel for the State when the matter was mentioned before me on 29 August 2008, that the defendant had started the PREP programme and his initial attendances were promising. The matter then came back before me on 3 October 2008. I was informed that the defendant, on being assessed as not at risk of harming others and suitable to commence the PREP programme, commenced his involvement with it on 13 August 2008. Aside from illness on one occasion he completed five of six sessions, actively participating in group discussions and exercises. In summary, his involvement appeared to be positive and demonstrated an ability to participate actively. It must be borne in mind, however, that the defendant’s involvement was at a very preliminary and to some extent a tentative stage. The defendant also attended six individual treatment sessions with Ms Dumasia. It appeared that overall he was willing and motivated although he continued to deny responsibility for the latest offence and some aspects of previous offences and this will continue to serve as a barrier for therapeutic intervention. His cognitive capacity to complete treatment such as that provided by the CUBIT programme is confirmed. His recall about his offending conduct has been greater than previously. Overall, Ms Dumasia believed, for good reason I think, that in the context of the defendant’s treatment prognosis, that would be best done in a therapeutic community setting such as that provided by CUBIT. This conclusion was confirmed by Mr Ware. He pointed out that there are no sex offender specific treatment options that he considered sufficiently intense that were suitable for an offender such as the defendant either within the community or offered by the Department. He said that any community based plan for the defendant offered by or with the assistance of the Department was best described as a risk management plan, not treatment, although it might, of course, deal with any medical condition or substance abuse issues. Supplementary reports were tendered of Professor Greenberg and Dr O’Dea, in substance the doctors saying that nothing had occurred to change any of their previous opinions.

68 Mr Ware said in evidence that, if the defendant was to be housed at COSP at Malabar, the Department could offer individual work with him over a period of time. He thought that would be exceptional and doubted that there was sufficient evidence to suggest that it would be actually of benefit to him. These treatments are designed not so much to reduce risk of harming others but to enhance his ability to deal with relationships and generally to cope. In short, the programme offered at COSP is designed to assist offenders to learn life skills in terms of release and reintegration into the community, if not directly, at least, to reduce their risk of sexually offending. I note that both Dr O’Dea and Professor Greenberg are sceptical about the strength of the evidence that suggests that a programme such as CUBIT is superior to individual counselling. Of course, in the context of the potential for repeat offending, the counselling would best focus on issues directly connected with that risk. It appears that the counselling available at COSP would not do this, although there does not seem to be any good reason why it could not do so in the case of particular offenders in the defendant’s position. Mr Ware, of course, was describing the programme presently available. I understand that there have been only two or three serious sex offenders placed under supervision at COSP and it may well be that the need to deal with their particular risk profiles will be taken on board. However, that is not a matter for me.

69 In discussing the potential utility of programmes such as CUBIT it is essential to bear in mind that the ultimate test which it is necessary for the Court to apply is not whether one particular treatment or another is best. I would not wish that anything that I have said would be seen as a suggestion that the programme is not entirely justified from a policy point of view. The question for me is a different one: it is whether I am satisfied to the appropriate degree that the State has proved the statutory requirements that justify – so far as this defendant is concerned – a continuing detention order as distinct from a supervision order. In this respect, it may be worth making the obvious point that, even if no psychological treatment were available, there is no or very little risk of a further serious sex offence being committed by an offender who is detained in a prison. The real issue will always be whether there is such a risk of re-offending as to refuse a supervision order, the stringencies of which are, subject to the availability by the Department or otherwise through community based organisations, constrained by relevant and appropriate modes of supervision and support.

Specific relevant matters

70 These are matters listed in s 17(4) of the Act to which I have adverted, albeit without specific reference, in the course of this judgment. It is important to note that, whilst they are relevant for the purpose of considering the fundamental test set out in s 17(2) and (3). They do not supplant those tests. I have considered the reports received from the persons appointed to conduct examinations of the defendant and the level of his participation in that examination, the results of other assessments and the willingness of the defendant to participate in them, the statistical assessments of likelihood of re-offending, the willingness or, to be more precise, unwillingness of the offender to participate hitherto in CUBIT or a PREP (although he participated in a preliminary sense in the later, in effect when pressured by the Court to do so). I have considered his failure to comply with obligations to which he was subject whilst on release on parole together with his criminal history. I think that the defendant’s earlier willingness to remain in gaol rather than undertake the CUBIT programme was based on his belief that he would be released at the end of his sentence and that he did not really appreciate until these proceedings were under weigh that he could be detained for a further lengthy period despite his sentence having been completed unless he changed his attitude.

Conclusion

71 The defendant is now 61 years of age with a significantly reduced life expectancy because of a heart condition in part resolved by a pacemaker but involving other deficits which I have described. He has been in prison now for many years. There is undoubtedly a risk of re-offending, as demonstrated by his psychological profile and his history. I am quite sure that he is most anxious to be released from gaol and not to return. The fear of such a return if he does not fully comply with the conditions of a supervision order is, to my mind, a powerful one in his case although I appreciate that in the past he repeatedly committed serious offences in breach of his parole undertakings. The level of supervision and control to which he can now be subjected, however, is far greater than was possible then. Breach of a supervision order does not involve the commission of any serious sex offence. The commission of any criminal offence or, for that matter, a failure to comply with the other stringent requirements of the supervision order will, as the defendant understands, result in his return to prison. In this regard, the supervision order which I made is a world apart from the regime to which he was subjected on parole. I was therefore satisfied that supervision in accordance with the order and whilst he is resident in COSP accommodation is adequate to ensure that it is not likely that he will commit a further sex offence whilst under supervision. To more precisely apply the statutory test, I was not satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he is kept under supervision, nor was I satisfied that adequate supervision will not be provided by an extended supervision order. I was satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he is not kept under supervision.

72 Accordingly, I made the extended supervision order to which I have already adverted.

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Citations

State of New South Wales v Thomas [2008] NSWSC 1340

Most Recent Citation

State of New South Wales v Manners [2008] NSWSC 1376

Cases Citing This Decision

6

State of New South Wales v Thomas (Final) [2011] NSWSC 307

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

State of NSW v Roach [2010] NSWSC 184

Cases Cited

6

Statutory Material Cited

2

Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340

Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071

CITATION:	STATE OF NEW SOUTH WALES v THOMAS [2008] NSWSC 1340
HEARING DATE(S):	29/07/08, 30/07/08, 29/08/08, 03/10/08
JUDGMENT DATE :	12 December 2008
JUDGMENT OF:	Adams J at 1
DECISION:	Pursuant to s 17(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 (NSW), order that the defendant be subject to an extended supervision order to operate on and from 8 October 2008 for a period of 12 months expiring on 7 October 2009 and pursuant to sections 17(5) and 11 of the Act, direct compliance with the conditions set out in the Schedule. Grant liberty to the parties to apply on 3 days' notice
CATCHWORDS:	Extended detention and supervision orders - effects of orders - standard of proof of risk of re-offending - use of research and statistics - provisional nature of statistical conclusions
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006 Crimes Act 1900
CATEGORY:	Principal judgment
CASES CITED:	Attorney General for the State of New South Wales v Gallagher [2006] NSWSC Attorney General for the state of New South Wales v Winters [2007] NSWSC TSL v The Secretary of the Department of Justice (2006) 14 VR 109 Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 Cornwall v Attorney General for New South Wales [2007] NSWCA 374
PARTIES:	State of New South Wales (Plaintiff) Bruce Malcolm Thomas (Defendant)
FILE NUMBER(S):	SC 2008/12385
COUNSEL:	D Staehli SC/ N Sharp (Plaintiff) M Johnson (Defendant)
SOLICITORS:	I V Knight (Crown Solicitor) (Plaintiff) Peter Murphy (Defendant)
LOWER COURT JURISDICTION: