State of New South Wales v Thompson (Final)

[2023] NSWSC 610

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Thompson (Final) [2023] NSWSC 610

Hearing dates:

02 June 2023

Date of orders:

02 June 2023

Decision date:

09 June 2023

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

(1) I grant leave to the plaintiff to file in court a Second Further Amended Summons

(2) I revoke the order made by Bellew J on 14 December 2022 that the defendant be known by the pseudonym “HT”.

(3) I make the orders sought in the SFAS as follows:

(a) Pursuant to section 5B and 9(1)(a) of the HRO Act, the defendant be subject to an extended supervision order for a period of two years.

(b) Pursuant to section 11 of the HRO Act, direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in Schedule A to the Second Further Amended Summons.

(c) Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar, so as to allow them an opportunity to be heard in relation to the application for access.

Catchwords:

HIGH RISK OFFENDERS – final hearing – extended supervision order – extended supervision order made by consent

Legislation Cited:

Crimes Act 1900

Crimes (High Risk Offenders) Act 2006

Cases Cited:

Cornwall v Attorney-General for New South Wales [2007] NSWCA 374

State of New South Wales v HT (Preliminary) [2023] NSWSC 249

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Hector Thompson (Defendant)

Representation:

Counsel:
A Mykkeltvedt (Plaintiff)
G T S Marsden (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2022/375883

Publication restriction:

Nil

JUDGMENT

1. By way of a Second Further Amended Summons (SFAS) dated 26 May 2023, the plaintiff State of New South Wales sought final orders for an extended supervision order (ESO) against the defendant Mr Thompson pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (the HRO Act) for a period of three years (later changed to two years), and for an order pursuant to s 11 of the HRO Act that Mr Thompson comply with conditions as set out in the Schedule A to the SFAS.

2. At the time the original Summons (seeking preliminary orders) was filed, Mr Thompson was serving a sentence of 5 years imprisonment for aggravated break and enter (in company) and commit armed robbery, with a non-parole period of three years (the index offence), which commenced on 13 March 2018 and expired on 12 March 2023. Mr Thompson was released to parole on 23 September 2022. The sentence was imposed partly concurrent and partly cumulative with other break and enter offences, the total term commencing on 13 September 2016.

3. On 9 March 2023, Walton J made an Interim Supervision Order (ISO) to date from 12 March 2023 and to expire on 9 April 2023 (see: State of New South Wales v HT (Preliminary) [2023] NSWSC 249 (the preliminary judgment)). His Honour’s judgment details much of the background to this application, which I will not repeat. I adopt the chronology and content of his Honour’s reasons. On 6 April 2023, Yehia J renewed the ISO for a period of 28 days, to date from 9 April 2023. A further 28-day renewal was granted by her Honour on 4 May 2023, to take effect from 7 May 2023. The ISO was due to expire on 4 June 2023.

4. On 2 June 2023, there was a final hearing in which I made the orders sought in the SFAS. At the commencement of the hearing, I granted the plaintiff leave to file in court the SFAS (which no longer claimed interim and interlocutory relief and amended the Schedule to a Further Amended Summons which set out the proposed conditions to be imposed on the defendant).

5. During the hearing, the parties reached agreement on all orders, so that the orders that I made were by consent. What follows are my reasons for making the orders.

6. I am grateful to both Mr Mykkeltvedt, who appeared for the plaintiff, and Ms Marsden who appeared for the defendant, for the collaborative manner in which they approached these proceedings.

Orders sought

7. The plaintiff sought the following orders:

Final relief

4. An order pursuant to section 5B and 9(1)(a) of the Act, that the defendant be subject to an extended supervision order for a period of three years; and

5. An order pursuant to section 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in Schedule A to this Summons.

Ancillary relief

6. An order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

Background

8. The defendant is currently 42 years of age. He is a Dunghutti and Kamilaroi man who now resides in supported accommodation with 24-hour onsite carers. He experienced an extremely disturbed and traumatic early development, which included being put into foster care at an early age and suffering sustained sexual abuse for a number of years as a child. He has an extensive criminal history dating from 1995, including committing offences in breach of parole. Mr Thompson has spent less than two years outside of custody since November 1999 and is said to be institutionalised.

9. Whilst in custody for the index offending, the defendant was charged with sexual offences which were resolved by a plea of guilty to one count of indecent assault of a child under 16 (contrary to the now repealed s 61M(2) of the Crimes Act 1900) (the serious offence), which was committed on 2 August 2016. The defendant was sentenced for this offence on 3 April 2020 by Priestley SC DCJ to a fixed term of six months imprisonment backdated to commence on 2 September 2019 and had expired (on 1 March 2020) when it was imposed. The State of New South Wales submitted that this was a “serious sex offence” for the purposes of ss 5(1)(a)(i) and 5(1)(d) of the HRO Act (to which see further below), as it carried a maximum penalty of 10 years imprisonment and involved a child.

Evidence

10. Most of the evidence tendered by the plaintiff on the final application was also tendered at the preliminary hearing. Two additional volumes of material were tendered at the final hearing. Relevantly, included in those volumes are reports of Dr Gordon Elliott, psychiatrist dated 7 April 2023, a report of Dr Amanda White, neuropsychologist and forensic psychologist dated 28 April 2023 (both appointed to conduct examinations of the defendant by Walton J) and annexed to affidavits read in the proceedings were various Offender Integrated Management System (OIMS) notes and an occupational therapist’s report that were brought into existence since the date of the preliminary hearing before Walton J.

Legislative framework

11. The following sections of the HRO Act have relevance.

12. Section 3 of the HRO Act sets out its objects:-

3   Objects of Act

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

(2)  Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.

13. Section 5 of the HRO Act defines “serious sex offence” and “offence of a sexual nature” which are relevant to this matter:

(1)  For the purposes of this Act, a serious sex offence means any of the following offences—

(a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where—

(i)  in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and

(ii)  in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises),

(a1) an offence under section 61K or 66EA of the Crimes Act 1900,

(b) an offence under section 38, 86 (1) (a1), 111, 112, 113 or 114 (1) (a), (c) or (d) of the Crimes Act 1900 that has been committed with intent to commit an offence under Division 10 of Part 3 of the Crimes Act 1900, where the offence intended to be committed is punishable by imprisonment for 7 years or more,

(b1) an offence against section 50BA of the Crimes Act 1914 of the Commonwealth,

(b2) an offence against section 71.8 of the Commonwealth Criminal Code,

(b3) an offence against section 271.4 or 271.7 of the Commonwealth Criminal Code,

(b4) an offence against the Commonwealth Criminal Code, section 272.8, 272.10, 272.11, 272.12, 272.13, 272.14, 272.15, 272.15A, 272.19 or 273.7,

(b5) an offence against the Commonwealth Criminal Code, section 471.22, 471.24, 471.25, 471.25A, 474.23A, 474.24A, 474.25B, 474.26, 474.27 or 474.27AA,

and includes—

(c)  an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious sex offence for the purposes of this Act, and

(c1)  an offence by a person that, at the time it was committed, was not a serious sex offence for the purposes of this Act but which was committed in circumstances that would make the offence a serious sex offence if it were committed at the time an application for an order against the person is made under this Act, and

(d)  any other offence that, at the time it was committed, was a serious sex offence for the purposes of this Act.

(2)  For the purposes of this Act, an offence of a sexual nature means any of the following offences—

(a) an offence under Division 10 of Part 3 of the Crimes Act 1900,

(a1)  an offence under the Crimes Act 1900, Part 3, Division 10A,

(b) an offence under section 38, 111, 112 or 113 of the Crimes Act 1900 that has been committed with intent to commit an offence referred to in paragraph (a),

(c) an offence under Division 15 or 15A of Part 3 of the Crimes Act 1900,

(d) an offence under section 11G of the Summary Offences Act 1988,

(e) an offence under section 91J, 91K, 91L or 91M of the Crimes Act 1900 in relation to the observing or filming of a child,

(f) an offence under section 17 or 18 of the Child Protection (Offenders Registration) Act 2000,

(g) an offence under section 13 of the Child Protection (Offenders Prohibition Orders) Act 2004,

(h)  an offence under section 12 of this Act,

(h1) an offence against section 50BB, 50BC, 50BD, 50DA or 50DB of the Crimes Act 1914 of the Commonwealth,

(h2) an offence against section 71.12 of the Commonwealth Criminal Code,

(h3) an offence against the Commonwealth Criminal Code, section 272.9, 272.18, 272.20, 273.6 or 273A.1,

(h4) an offence against the Commonwealth Criminal Code, section 471.19, 471.20, 471.26, 474.22, 474.22A, 474.23, 474.25A or 474.27A,

(h5) an offence against section 233BAB of the Customs Act 1901 of the Commonwealth involving items of child pornography or child abuse material,

and includes—

(i)  an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence of a sexual nature for the purposes of this Act, and

(j)  any other offence that, at the time it was committed, was an offence of a sexual nature for the purposes of this Act.

(3)  In this section—

Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth.

14. Section 5B sets out four pre-requisites for the making of an ESO. I note that the parties do not dispute that the requirements of each of subsections (a)–(c) are met in this case, and I observe that I am independently satisfied. Section 5B provides:-

5B Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if—

(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a supervised offender (within the meaning of section 5I), and

(c) an application for the order is made in accordance with section 5I, and

(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

15. Mr Thompson is an “offender who has served a sentence of imprisonment for a serious offence in custody” (s 5B(a)), as he is over 18 years of age (being 42 years old) satisfying s 4A(a), and he has been sentenced to imprisonment to be served by way of full-time detention following his conviction for a sentence, being the sentence of imprisonment imposed for the serious sex offence commencing on 2 September 2019 and expiring on 1 March 2020, satisfying s 4A(b). Further, he is a “supervised offender” within the meaning of s 5I, satisfying s5B(b), as he is an offender who, when the application for the order was made, was under supervision while serving a sentence of imprisonment for another offence and that sentence of imprisonment “for another offence” was served partly concurrently and partly consecutively with a sentence of imprisonment for a “serious offence”, namely the sentence of six months imprisonment for the serious sex offence, satisfying s 5I(2)(a)(iv), and the application for the order is made in accordance with s 5I satisfying s 5B(c).

16. I observe that with respect to Mr Thompson’s status as a “supervised offender”, both parties accept the reasoning of Walton J in the preliminary judgment at [17] to [22].

17. Section 5B(d) is the key provision with respect to the making of an ESO. I must be satisfied to a “high degree of probability” that Mr Thompson poses an unacceptable risk of committing another serious offence if not kept under supervision under an order. In determining whether Mr Thompson poses an unacceptable risk, the court must have regard to the matters in s 9(3)(a) – (i).

18. The words “to a high degree of probability” indicate a higher standard of proof than the civil standard of the balance of probabilities, but does not rise to the criminal standard of beyond reasonable doubt. In Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 at [21], the Court of Appeal said:-

“the expression ‘a high degree of probability’ indicates something ‘beyond more probable than not’; so that the existence of the risk, the is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt…”

19. Both parties submit that I would be satisfied to a high degree of probability that Mr Thompson poses an unacceptable risk of committing another serious offence if not kept under a supervision order having regard to the various matters set out in s 9(3)(a)-(i). I indicate that I am so satisfied, the reasons for which will become apparent after a review of the evidence against the criteria in s 9(3).

20. Section 9(2) of the HRO Act provides that, in determining whether or not to make an ESO, “the safety of the community must be the paramount consideration.” This is consistent with the primary object of the HRO Act as set out in s 3(1). I am satisfied that the safety of the community will be best served if I make the ESO.

21. Section 9(3) sets out the matters to which the Court must have regard in its determination as to whether or not an ESO should be imposed:-

(3)  In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant—

(a)    (Repealed)

(b)  the reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c)  the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d)  the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence,

(d1)  any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(e)  any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,

(e1)  options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,

(e2)  the likelihood that the offender will comply with the obligations of an extended supervision order,

(f)  without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(g)  the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,

(h)  the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(h1)  the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i)  any other information that is available as to the likelihood that the offender will commit a further serious offence.

22. Section 10 provides for the term of an ESO:

10   Term of extended supervision order

(1)  An extended supervision order commences when it is made, or when the offender’s current custody or supervision expires, whichever is the later.

(1AA)  However the Supreme Court may, if an extended supervision order is made in proceedings on an application for a continuing detention order, defer the operation of an extended supervision order for a period of up to 7 days (the deferral period) if—

(a)  the Court considers that it is necessary to detain the offender for the deferral period to enable arrangements to be made for supervision of the offender in the community, and

(b)  it does not appear to the Court that an interim detention order can be made for the interim detention of the offender.

(1AB)  On the deferral of the operation of an extended supervision order, the Supreme Court may order that the offender concerned be detained for a specified period (not exceeding the deferral period) after the offender’s current custody expires.

(1AC)  As soon as practicable after making an order under subsection (1AB) the Supreme Court must issue a warrant for the committal of the offender for the specified period after the offender’s current custody expires.

(1AD)  A warrant under subsection (1AC) is sufficient authority for the offender to be kept in custody in accordance with the terms of the warrant.

(1A)  An extended supervision order expires at the end of—

(a)  such period (not exceeding 5 years from the day on which it commences) as is specified in the order, or

(b)  if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended.

(2)  An offender’s obligations under an extended supervision order are suspended while the offender is in lawful custody, whether under this or any other Act or law.

(3)  Nothing in this section prevents the Supreme Court from making a second or subsequent extended supervision order against the same offender.

23. As to conditions that may be imposed when making an ESO, s 11 provides:

11   Conditions that may be imposed on supervision order

(1)  An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender—

(a)  to permit any corrective services officer to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address, or

(a1)  to permit any corrective services officer to access any computer or related equipment that is at the offender’s residential address or in the possession of the offender, or

(b)  to make periodic reports to a corrective services officer, or

(c)  to notify a corrective services officer of any change in his or her address, or

(d)  to participate in treatment and rehabilitation programs, or

(e)  to wear electronic monitoring equipment, or

(ea)  to reside at an address approved by the Commissioner of Corrective Services, or

(f)  not to reside in or resort to specified locations or classes of locations, or

(g)  not to associate or make contact with specified persons or classes of persons, or

(h)  not to engage in specified conduct or classes of conduct, or

(i)  not to engage in specified employment or classes of employment, or

(j)  not to change his or her name, or

(k)  to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender’s residential address, or

(l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or

(m)  to comply with specified requirements in connection with the offender’s access to and use of the internet, or

(n)  to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender.

(2)  An extended supervision order or interim supervision order must include a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services.

24. I turn now to the factors I must consider pursuant to s 9(3).

Section 9(3) factors

The defendant’s background of offending and criminal history

25. The defendant has a significantly deprived and disadvantaged background that provides context for his criminal history. He is one of seven siblings. He was removed from his parents’ care when he was about three years old due to concerns about neglect and exposure to abuse and drug and alcohol use. He was sexually assaulted from about age five to age ten and placed into foster care when he was 11 after absconding from kinship placement. Mr Thompson began abusing alcohol and illicit substances at about 12 years of age and was diagnosed with drug-induced psychosis at approximately 16 years of age, and later with chronic schizophrenia.

26. Mr Thompson has a lengthy history of criminal offending which began in 1995. He has spent less than two years outside of custody since November 1999. His current release to parole since September 2022 is the longest consecutive period he has spent in the community since 1999. The defendant’s criminal history contains only one offence which is a serious sexual offence. However, in the plaintiff’s submission, the defendant has committed a range of offences that could have escalated to a serious sex or violence offence. Most of the defendant’s criminal history involves break and enter offences which sometimes involved him possessing a weapon or leading to assault. However, there have also been occasions when the defendant exposed himself.

The index offence

27. The index offending involved three offences. The first was an offence of break and enter with intent to steal, committed on 19 August 2016 at a gymnasium. The second was an offence of aggravated break and enter and commit robbery in company, committed on 8 September 2016 at a motel. The third offence was committed on 4 September 2016, which involved aggravated break and enter and stealing in company at a laundry service. In relation to the offence committed at the motel, the defendant was armed with a large knife and pole. Cash was stolen and the defendant struck the male victim on the face which caused a split lip.

The serious offence

28. This offence was committed on 2 August 2016, 23 days after the defendant had been released from custody. The defendant approached the 15 year old male victim walking in a public street and asked him if he knew where the defendant could “get on it” and if the victim wanted to make some money. The victim agreed to go with the defendant to a basketball court in the local high school grounds where the defendant told the victim that he had been released from gaol for murder and that “I haven’t gotten any arse since then, so I was thinking I could pay you $80,000 and I could do some things to you.” The victim declined. He then offered the victim $80,000 to perform oral sex on him, which the victim also declined. The defendant suggested that they walk to a brick wall where he put both hands beside the victim’s head and said “if I had a million dollars, I’d have my way with you.” The victim feared he would be killed and tried to walk away but the defendant grabbed his shoulder, pulling the victim in close and said “give me a hug” before putting both arms around the victim. The defendant then pushed the victim down by the shoulders and said “well you’ve got no choice now, you’re going to get on your fucking knees and suck my dick.” The victim pushed the defendant in the stomach and ran away. The victim dropped his phone but persuaded the defendant to return it. The defendant said to the victim “can I get a blow job before you go?”

29. The agreed facts for this offending also disclosed that the defendant had approached a 14 year old boy in the same area, starting a similar conversation about two hours prior, and had similarly approached another boy fifteen days later in a nearby town.

30. On sentence, Priestley SC DCJ found that the indecent assault was constituted by the words used and by forcing the victim into a position to perform fellatio.

Reports received by appointed persons

Report of Dr Gordon Elliott 7 April 2023

31. Dr Elliott, general and forensic psychiatrist, prepared a report for the court dated 7 April 2023. Dr Elliott previously assessed and provided reports on 10 February 2020 and 29 March 2021. He was Mr Thompson’s treating psychiatrist whilst he was in custody. On 31 March 2023, Dr Elliott conducted a 90 minute assessment of the defendant by video link. He was provided with collateral documents for the purposes of the assessment report which he summarised at great length.

32. Dr Elliott observed that from the outset of his assessment, Mr Thompson’s ability to participate was significantly affected by his level of sedation. He was drowsy and fell asleep between every question.

33. Since his release to parole, Mr Thompson has received the disability support pension and has a NDIS package that funds his supported accommodation. There has been a breakdown in the relationship between Mr Thompson and his supported accommodation such that they will no longer be providing after hours care gratuitously from 19 June 2023.

34. Dr Elliott reported that Mr Thompson is a single man who said that he has five daughters aged between 18 and 23 with four different partners. Dr Elliott expressed some doubt as to the accuracy of this account, as it was at odds with previous statements made by the defendant.

35. Mr Thompson’s current routine includes going fishing every day and bushwalking regularly. He also paints, often with family members, and has sold some of his works. He has obtained his learner’s driver licence. Mr Thompson visits his mother once a fortnight and is in regular contact with his sister. His father recently died, and he has struggled to cope with the loss.

36. Dr Elliott asked the defendant about his connection to country and culture since leaving custody. Mr Thompson told Dr Elliott that he has been though initiation rituals and men’s business which he said has helped “100%”, including with his auditory hallucinations which he reported had stopped after completing the rituals, about six weeks before the assessment.

37. Mr Thompson was prompted to talk about incidents at his supported accommodation where he reportedly brandished weapons. As an explanation for the incidents, Mr Thompson said that he held fears for his safety and alleged that someone had tried to attack him. Mr Thompson alleged that on another occasion, staff were making fun of him. Mr Thompson denied that these incidents were consistent with auditory hallucinations.

38. With respect to the defendant’s psychiatric history, Dr Elliott reported that Mr Thompson has a long standing diagnosis of chronic schizophrenia and that at the time of the assessment, the defendant’s mental state appeared relatively stable. His mental illness is characterised by episodic fluctuations in psychotic symptoms in response to stress, and particularly with substance use. Dr Elliott suggested that Mr Thompson may have a degree of treatment resistance but noted that this would require further assessment.

39. As to Mr Thompson’s history of substance use, Dr Elliott reported that the defendant has a history of binge drinking and cannabis use from the age of 14. Mr Thompson told Dr Elliott that he had been abstinent from all substances including alcohol since the time of his father’s death when he smoked “a couple of joints and that’s it.” He admitted to injecting methamphetamines and abusing Buprenorphine whilst in custody.

40. In Dr Elliott’s opinion, Mr Thompson has significant maladaptive personality traits of an anti-social nature. In his view, the defendant’s psychiatric condition and substance abuse contributes to his risk of committing a serious sex offence. His substance abuse increases his risk both by driving psychotic symptoms and more generally, through disinhibition and impairment of judgement.

41. Dr Elliott’s assessment of risk broadly aligns with the assessment contained in the Risk Assessment Report (RAR) (see below) that placed the defendant in the ‘well above average’ risk category. Dr Elliott applied the Static-99R tool which yielded a score of 9 and which placed the defendant in this category. In Dr Elliott’s opinion, Mr Thompson’s illness may fluctuate with time, but his psychiatric history and substance abuse are closely associated with his risk of recidivism. Dr Elliott says that, despite some favourable signs, including achieving a level of stability, he holds ‘significant concerns’ as to whether Mr Thompson’s risk of committing a further serious sex offence can be managed in the community without any order being imposed, and points to the fact that Mr Thompson is ‘significantly institutionalised.’ He observes that the current period of stable support appears to be short-term and considers that a high support NDIS package is crucial to Mr Thompson’s rehabilitation and adaptation to community living. In Dr Elliott’s opinion a two-year ESO would be appropriate to enable Mr Thompson to gradually move through levels of support. He believes that a three year ESO may engender a sense of hopelessness.

Report of Dr Amanda White dated 28 April 2023

42. Dr White is a forensic psychologist and clinical neuropsychologist who assessed the offender via audio-visual link for four hours over two interviews in April 2023. Dr White observed that the defendant has a long criminal history and has diagnoses of antisocial personality disorder, substance use and schizophrenia. He has spent most of his adult life in custody. Throughout the interviews, the defendant was neither defensive nor aggressive, but his responses were often inconsistent, and Dr White believed that he “evinces elements of grandiosity with poor history.”

43. Mr Thompson reported that he began hearing four different voices at age 14, which he described as being constants in his life. He initially reported a “healthy” sex drive, but then indicated that it was “below average” when he was challenged about the accuracy of reports that he had masturbated 10 times daily. Currently, he says that his medications “crushed” his libido. The defendant acknowledged searching for pornography on the internet, but said that he no longer was interested and he requested that access be blocked on his phone.

44. The defendant disclosed childhood sexual abuse and expressed confusion regarding his sexuality, which he believed stemmed from his history of being assaulted. He denied a sexual interest in children, and later told Dr White he had no sexual interest at all.

45. The defendant admitted that he used cannabis in early 2023, having stolen five sachets from his brother, which he smoked until he “greened out” over three days whilst grieving the death of his father.

46. The defendant’s account of his criminal history was described by Dr White as suggestive of significant deficits of insight. He denied any history of sexual offending apart from the subject serious offence and said that he could not recall offences involving exposing himself because they were “too long ago.”

47. Neuropsychological assessments administered by Dr White indicated that the defendant’s visual based reasoning and auditory attention was average but that his working memory was borderline, and his recall of verbal material was extremely low. Verbal fluency was assessed as “low average.” The defendant’s self-reported measure of mood was consistent with symptoms of extremely severe depression, stress, and anxiety.

48. Dr White applied the RSVP-V2 risk assessment tool. This identified Mr Thompson as presenting with a high likelihood of committing further sexual violence and as requiring a high level of effort and intervention to prevent further sexual offending.

49. In Dr White’s opinion, although there is some stability in the defendant’s condition by way of accommodation, treatment, and support, in the absence of his current supports, his risk of reoffending is likely to increase. Dr White notes ongoing concerns with the defendant’s fluctuations in mental health, sexual preoccupation, paranoia, hallucinations, and requests to reduce medication, all in the context of significant cognitive and functional difficulties. Dr White assesses the defendant to be within the ‘well above average’ risk category for sexual reoffending, which is consistent with the assessment by Dr Elliott and that reported in the RAR.

50. In Dr White’s opinion, Mr Thompson requires a high level of intensive services and supervision to reduce his risk of sexual reoffending. In her view, an ESO of three years would be appropriate.

OIMS documents and the report of Ms King, occupational therapist

51. Annexed to the affidavit of Jessica Leigh Murty of 4 May 2023 are OIMS documents that have been created since the preliminary judgment, and a Functional Assessment Report of Gemma King, occupational therapist, dated 26 April 2023.

52. The OIMS notes disclose that Mr Thompson was given a formal warning for breaching his schedule of movements in April 2023. The defendant was struggling to comply with the ISO.

53. Ms King’s assessment was undertaken to support the defendant in his application for an Unscheduled Plan Review with the NDIS, as it was suggested that his current funding package was insufficient to meet his disability related support needs. The assessment was conducted at Mr Thompson’s current residence. Ms King observed that Mr Thompson was not currently funded by the NDIS for supported independent living (SIL), but that he would apply for SIL as part of the Plan Review.

54. Ms King observed that Mr Thompson was currently supported in all areas of functioning on a 24/7 basis, which in her view should continue at a 1:1 ratio of support. In her opinion, Mr Thompson does not have the cognitive capacity to live independently in the community in a “safe and durable manner.” She asks the NDIA to consider the complexity of Mr Thompson’s case and provide additional funding to continue support at 1:1 ratio, 24 hours per day.

RAR

55. A RAR was prepared by Rochelle Pateman, senior psychologist, dated 9 September 2022. Ms Pateman was unable to interview the defendant, but had the benefit of having clinically assessed him over the previous seven years.

56. Ms Pateman describes the defendant as presenting with complex needs, including significant mental illness, personality vulnerabilities, institutionalisation, and chronic substance abuse. The defendant was noted to have some treatment resistance and she was of the view that his stability was affected by intermittent substance abuse whilst (then) in custody.

57. Ms Pateman noted protective factors such as the defendant having made contact with his family, that he had been approved for NDIS funding and that he had commenced engagement with support services. However, Ms Pateman said that Mr Thompson’s family members appeared to lack insight into the defendant’s risk related issues.

58. Mr Thompson’s sexual offending was described by Ms Pateman as ‘non-linear,’ and included targeting people from a range of age groups, gender, and in various locations. His offending appeared to be opportunistic, and he targeted strangers. There were reports of him being sexually abusive toward gaol staff and other inmates, which he denied.

59. Ms Pateman noted that the defendant’s institutional incidents records contained many instances of being assessed as at risk of self-harm and suicidality, actual self-harm, paranoia, bizarre behaviour, hallucinations, threats to harm or kill himself or others, abuse, threats and intimidating conduct, property destruction, fighting with other inmates, and the possession of contraband.

60. Ms Pateman observed that the last Stable-2007 tool assessment of the defendant, which is used to identify stable dynamic risk factors, returned a score of 16, which suggested a high density of criminogenic needs relative to other male sex offenders. Of particular clinical concern were Mr Thompson’s capacity for relationship stability, impulsivity, poor problem-solving skills, deviant sexual interests, cooperation with supervision, general social rejection, lack of concern for others, negative emotionality, sex drive/preoccupation and sex as coping.

61. A Static-99R actuarial risk assessment was performed in November 2020 and returned a score in the high risk category. That category has now been renamed as ‘well above average risk.’ In Ms Pateman’s opinion, the Static-99R assessment remained valid. She combined this tool with the Stable-2007 tool to generate a composite assessment of Mr Thompson’s risk and needs. Ms Pateman was of the view that the defendant is in the ‘well above average’ risk level. However, Ms Pateman reported that it was difficult to assess the defendant’s current level of risk related to sexual pre-occupation due to his (then) current refusal to participate in assessments. Ms Pateman considered that the defendant will require ongoing supports and extrinsic motivations to maintain stability in the community and to reduce his overall risk of reoffending. In her opinion, the most likely risk scenario for reoffending was an opportunistic or impulsive encounter with a stranger of indeterminate age and sex.

62. With respect to ongoing supervision, in Ms Pateman’s opinion there were a number of risk-management strategies that could be applied, whether or not an ESO was imposed. Such strategies included psychologist engagement, developing culturally appropriate community supports, the scrutiny of social contacts, unannounced home visits, drug and alcohol testing, the use of electronic monitoring equipment, ensuring compliance with his medication regime and the updating of assessments with respect to his intellectual functioning.

Risk Management Report (RMR)

63. A RMR was prepared by Mick Glover, Community Corrections Officer dated 18 October 2022. Mr Glover interviewed the defendant by telephone for the purpose of this report.

64. At the time of the report, Mr Glover noted that the defendant had commenced living in supported accommodation, funded by his NDIS plan. He observed that Mr Thompson’s understanding during the interview may have been compromised by cognitive or mental health issues. Mr Thompson could only cite drug and alcohol issues when asked to discuss his risks. Mr Glover observed that this appeared to demonstrate that Mr Thompson had limited insight into the nexus between his substance abuse, the subsequent deterioration of his mental health and the consequent increased risk of re-offending.

65. Mr Glover proposed several risk management strategies which included weekly contact with a Community Corrections Officer and unannounced home visits, behavioural change therapy, field visits and surveillance, monitoring associations, electronic monitoring and psychological risk management intervention. Further strategies might include a curfew, accommodation and supervision requirements, place and travel restrictions, financial monitoring, abstention conditions, non-association conditions and directions to engage with psychologists and community mental health clinicians.

Treatment and rehabilitation of the defendant

66. The defendant was previously engaged in Alcohol and Other Drug Treatment (Relapse Prevention) in custody. He attended individual alcohol and drug counselling and group therapy, as well as an anger management program.

67. The defendant was offered a place into the CUBIT (sex offenders’ therapy) program in 2007, but he refused this offer as he characterised himself as a victim of childhood sexual abuse and did not want to be associated with paedophiles. In 2013, Mr Thompson accepted an offer to participate in a CUBIT program, but his participation was reported as “varied, reflecting the effects of acute mental health symptoms, personality traits and fluctuating motivation.” He was suspended from a second attempt at the program in 2014 after he touched the skirt of an education officer.

68. Between November 2014 and November 2015, Mr Thompson participated in the Self-Regulation Program: Sex Offending. During this program, the defendant’s intellectual functioning was assessed as in the low average range, his understanding of concepts was described as “superficial” and he reported experiencing auditory hallucinations. It was noted that he threatened staff, and he provided contradictory information to different people.

Options available to reduce the risk of reoffending

69. The most significant option available to address Mr Thompson’s risk of reoffending is the continuation of the services he receives from his NDIS package. A funding review is currently underway.

Likelihood the offender will comply with the obligations of an ESO / past compliance with parole

70. The plaintiff submits that the defendant’s response to community supervision has been very poor, citing his serial breaching of supervision orders and other post-release arrangements. The index offence occurred one month after his previous sentence had expired.

Views of the sentencing court

71. Priestley SC DCJ, in his remarks on sentence of 3 April 2020, observed that the defendant was institutionalised, in poor mental health and had a high risk of reoffending.

Other information regarding the likelihood of further serious offending

72. The plaintiff points to the defendant’s conduct in custody, i.e., that he has entries for 50 offences between 1999 and 12 June 2021. The defendant has also been reported for sexual behaviour/preoccupation and making inappropriate advances and comments toward staff.

Mental health and substance abuse

73. Mr Thompson has an extensive history of mental ill-health and substance abuse. He tested positive for cannabis use in 2023.

Consideration

74. As I have said, Ms Marsden conceded that the court would be satisfied to a high degree of probability that Mr Thompson poses an unacceptable risk of committing another serious offence. She also conceded that Mr Thompson requires supervision and further rehabilitation, and she observes that he will submit to an ESO for these reasons. Submissions were made in writing by Mr Mykkeltvedt that the ESO should be for a term of three years, but he ultimately sought a two year term. There were no extant disputes about conditions by the conclusion of the hearing of the matter, as those disputes had been resolved inter parties. I would have been inclined to make the term of the order for 2 years as suggested by Dr Elliott (rather than 3 years as originally sought by the plaintiff), as he has had a long therapeutic relationship with Mr Thompson and is therefore, in my view, in a better position than Dr White (who was equivocal) to comment on the duration of an ESO and its consequences.

75. Given the agreement of the parties, and having regard in particular to the expert evidence, I accept that the pre-conditions in ss 5B(a), 5B(b) and 5B(c) of the HRO Act and the requirements in ss 5H, 5I 6 and 7 of the HRO Act are met. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision by an ESO. Further, given the agreement of the parties, I am satisfied that the proposed conditions, annexed to this judgment, should be imposed.

Conclusion

76. On 2 June 2023, I made the following orders, by consent:

1. I grant leave to the plaintiff to file in court a Second Further Amended Summons.

2. I revoke the order made by Bellew J on 14 December 2022 that the defendant be known by the pseudonym “HT”.

3. I make the orders sought in the SFAS as follows:

1. Pursuant to section 5B and 9(1)(a) of the HRO Act, the defendant be subject to an extended supervision order for a period of two years.

2. Pursuant to section 11 of the HRO Act, direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in Schedule A to the Second Further Amended Summons.

3. Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar, so as to allow them an opportunity to be heard in relation to the application for access.

Annexure

SCHEDULE OF CONDITIONS OF SUPERVISION

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

In these conditions:

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services

“Defendant” means Hector Anthony James Thompson, also known as Beau Thompson, the defendant in these proceedings and the subject of the order.

“Electronic Identity” means each of the following:

an email address;

a user name or other identity allowing access to an instant messaging service;

a user name or other identity allowing access to a chat room or social media on the internet;

any other user name or other identity allowing access to the internet or an electronic communication service.

“DSO” means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order.

“Material” includes:

any written or printed material;

any picture, painting or drawing;

any carving, sculpture, statue or figure;

any photograph, film, video recording or other object or thing from which an image may be reproduced;

any computer data or the computer record or system containing the data; and

any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

“NSWPF” means NSW Police Force.

“Associate” includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication).

“Search” includes:

A garment search, being a search of any article of clothing worn by the defendant or in the defendant’s possession, where the article of clothing is touched or removed from the person’s body; and

A pat-down search, meaning a search of the defendant where the defendant’s clothed body is touched.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.

Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.

Part B: Accommodation

The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant’s address or living arrangements.

The defendant must be at his approved address between midnight and 6AM unless other arrangements are approved by a DSO or with a reasonable excuse.

The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.

The defendant must promptly notify a DSO of any visitor under the age of 18 entering and remaining at his approved address and must not permit any person under the age of 18 to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.

Part C: Place and travel restrictions

The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.

The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW.

The defendant must not frequent or visit any place or district specified by a DSO.

Without limiting condition 11 above, the defendant must not go to any of the following without the prior approval of a DSO:

Residences where the defendant knows that persons aged under 18 years ordinarily reside.

The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO.

Part D: Employment, finance and education

Subjection to condition 17, the defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs.

Subjection to condition 17, the defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.

Subjection to condition 17, the defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his next interview with a DSO.

The defendant is not required to comply with conditions 14, 15 or 16 during the currency of any ISO or ESO except that all of these conditions will reapply if at any time the defendant refuses to be supported by service providers in accordance with his National Disability Insurance Scheme (“NDIS”) package or the defendant refuses to continue to engage with and accept the assistance of his available NDIS service providers.

Part E: Drugs and alcohol

The defendant must not possess or use prohibited drugs, or abuse drugs unlawfully obtained.

The defendant must not possess or consume alcohol without the prior approval of a DSO.

The defendant must submit to drug and alcohol testing.

The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO.

The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO, and must not discharge himself from such programs and courses without prior approval of a DSO.

A breach of conditions 18 and or 19 may result in the implementation of rehabilitation conditions pursuant to condition 22. Any decision to recommend breach proceedings or to result in the implementation of further conditions under this section is entirely at the discretion of a DSO and the ESO team.

Part F: Non-association

Association with Children

The defendant must not associate with anyone who he knows or reasonably should know is under 18, other than Incidental contact in a public place in the course of the duties of the minor; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that the contact takes place in the presence of an adult who has been approved in writing by a DSO.

Associations with Others (not children)

The defendant must not associate with any person or persons specified by a DSO.

Without limiting condition 25, the defendant must not:

associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO;

associate with any people who he knows are consuming or under the influence of illegal drugs;

associate with any person held in custody without prior approval of a DSO.

The defendant must not engage the services of sex workers, without the prior approval of a DSO.

The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary to address a risk of the commission of a serious offence. Before any disclosure is made, the defendant must first be informed and given the opportunity to make the disclosure himself.

The defendant must obtain permission from a DSO prior to joining or affiliating with any club or organisation.

Part H: Weapons

The defendant must not possess or use any of the following, without a DSO’s prior approval:

a knife, other than a knife or cutting implement designed for ordinary domestic use within his home, or for a legitimate purpose;

a machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened;

any other implement made or adapted for use for causing injury to a person;

anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.

Part I: Access to the internet and other electronic communication

The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information.

The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.

The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.

The defendant must not delete or edit any communications, applications or search history from his phone, computer or any electronic device without the prior consent of a DSO.

The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.

Part J: Search and seizure

The defendant must submit to the search by a DSO or a member of the ESOIT team or a local police officer of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling, or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search.

The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure carried out pursuant to this Order.

Part K: Access to pornographic, violent and classified material

The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as:

Refused Classification,

X18+, without prior approval of a DSO;

Restricted Category 2 without prior approval of a DSO;

Restricted Category 1, without prior approval of a DSO; or

Any other material as directed by a DSO which raises concerns related to risk of committing a serious offence.

Part L: Personal details and appearance

The defendant must not change his name from “Hector Anthony James Thompson” or use any other name without notifying a DSO.

The defendant must not significantly change his appearance without first notifying a DSO. The defendant is allowed to grow and trim his beard without notification to a DSO.

The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.

If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.

Part M: Medical intervention and treatment

The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction.

The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.

The defendant must attend, upon the direction of a DSO, any therapy sessions and/or support and treatment programs the subject of the direction.

The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.

The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in condition 46.

The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO to the extent that it is relevant to his risk of reoffending or his rehabilitation.

The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision, namely, between members of the ESO team (including but not limited to a DSO), members of the ESOIT team, local police officers as required and CSNSW psychologists and other CSNSW treatment providers to the extent that it is relevant to his risk of reoffending or his rehabilitation.

The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him including treatment relevant to his risk factors or his rehabilitation.

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Decision last updated: 09 June 2023