State of NSW v Thomas - [2010] NSWSC 677

CITATION: State of NSW v Thomas [2010] NSWSC 677

HEARING DATE(S): 21/06/2010, 22/06/2010

JUDGMENT DATE :
24 June 2010

JUDGMENT OF: Buddin J

DECISION: Pursuant to s 9(1) of the Act, I order that, for a period of four years from today, the defendant be subject to an extended supervision order by complying with the conditions set out in the Schedule to the amended summons.

CATCHWORDS: Serious sex offender - application for extended supervision order - no opposition to making of order or conditions attached thereto - issue as to duration of order

LEGISLATION CITED: Child Protection (Offenders Prohibition Orders) Act 2004
Child Protection (Offenders Registration) Act 2000
Crimes Act 1900
Crimes (Serious Sex Offenders) Act 2006

CATEGORY: Principal judgment

CASES CITED: Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605
Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119
Cornwall v Attorney General for New South Wales [2007] NSWCA 374
State of NSW v Quinn [2008] NSWSC 1080
State of New South Wales v Thomas [2010] NSWSC 314
Tillman v Attorney General for New South Wales (2007) 70 NSWLR 448

PARTIES: The State of New South Wales (Plaintiff)
Edward Reginald Thomas (Defendant)

FILE NUMBER(S): SC 2010/85162

COUNSEL: C Adamson SC/A Mitchelmore (Plaintiff)
D Thiering (Defendant)

SOLICITORS: IV Knight (Crown Solicitor) (Plaintiff)
S O'Connor (Solicitor for Legal Aid) (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

THURSDAY 24 JUNE 2010

2010/85162 – STATE OF NEW SOUTH WALES v EDWARD REGINALD THOMAS
JUDGMENT

1 HIS HONOUR: By amended summons filed in court by leave on 21 June 2010, the plaintiff seeks an order pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 (“the Act”) that, for a period of 5 years from the date of the order, the defendant be subject to an extended supervision order by complying with the conditions set out in the Schedule to the amended summons.

2 At the time of the plaintiff’s application, the defendant was in custody serving the balance of a 5 year sentence which was imposed upon him by Ducker DCJ in the District Court in May 1999 for offences of attempted aggravated sexual assault with a child under 16 years old, and aggravated sexual assault, the circumstance of aggravation being the child’s age. The defendant was released on parole on 18 September 2001 but immediately breached the terms of that order. On 24 April 2008 the defendant was extradited from Victoria to serve the balance of that sentence.

3 On 21 April 2010 Schmidt J ordered that the defendant was to be subject to an interim supervision order for a period of 28 days from 27 April 2010, being the date that the defendant was to be released from custody, on the conditions which are set out in her Honour’s judgment: State of New South Wales v Thomas [2010] NSWSC 314.

4 Her Honour also made an order appointing Dr Robert Lewin and Dr Samson Roberts to conduct separate psychiatric examinations of the defendant and directed that they each furnish a report to the Court on the results of those examinations by 19 April 2010.

5 On 21 May 2010, her Honour renewed the interim supervision order pursuant to s 8(3) of the Act, for a further 28 days. On 22 June 2010 I again renewed that order for a further period of 28 days (or until final orders are made whichever is the earlier) upon the conditions which are set out in the Schedule to the amended summons.

6 The matter came on for final hearing on 21 June 2010. The defendant does not oppose the making of the order and nor is any objection raised about any of the conditions which are sought. Indeed, I was informed that the conditions had been arrived at following discussions between the parties. An issue has however arisen as to the duration of the order. Notwithstanding the approach taken by the defendant, it is still necessary for the court to satisfy itself that the statutory requirements have been met.

The plaintiff’s evidence

7 In support of the application for final orders, the plaintiff relies upon the following affidavits:

(i) affidavit of Sarah Elizabeth Wyatt, affirmed 7 April 2010;

(ii) affidavit of Sarah Elizabeth Wyatt, affirmed 14 April 2010;

(iii) affidavit of Nicholas Vrizic, affirmed 11 June 2010;

(iv) affidavit of Catherine Shanks, affirmed 15 June 2010;

(v) affidavit of Cheryl White, sworn 21 June 2010.

8 Exhibited to the first affidavit of Ms Wyatt are various documents, including the Remarks on Sentence of Ducker DCJ, the defendant’s criminal history as well as a Risk Assessment Report dated 4 March 2010 which was prepared by Mr Patrick Sheehan, a senior specialist psychologist employed by Corrective Services (NSW). Exhibited to the second affidavit of Ms Wyatt and marked as exhibit “SEW-2” are a further two folders which contain what are described as the “core documents” in relation to this application.

9 Annexed to the affidavit of Catherine Shanks are two reports prepared by Dr Lewin dated 17 May and 27 May respectively as well as a report prepared by Dr Roberts which is dated 13 May 2010. A joint report dated 21 June 2010, which was prepared by Dr Roberts and Dr Lewin in response to various questions that had been raised by the parties, was also tendered.

10 Mr Vrizic, who is employed as the Senior Compliance and Monitoring officer with the Community Compliance Group of Corrective Services (NSW), explains in his affidavit the operation of the electronic monitoring system to which the defendant is currently subject. In the event that the order is made, it is anticipated that Ms White will be the defendant’s supervising officer. In her affidavit she explains why the various conditions, to which it is anticipated the defendant will be subject, are necessary and how they will be administered. No evidence was called on behalf of the defendant.

The legal requirements

11 The starting point for a determination of any application brought under the Act is s 3 which is in the following terms:

(1)

(2)

12 A sex offender is defined in s 4 of the Act as “a person who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence, other than an offence committed while a person was a child”. The term “serious sex offence” is defined in s 5 to include an offence under Div 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).

13 The defendant satisfies the definition of a “sex offender”; because at the time the application was made, he was serving a sentence of imprisonment both for an offence under ss 61J and 344A of the Crimes Act, and for an offence under s 61M of that Act. Section 61J is part of Div 10 of Part 3 of the Crimes Act and attracts a maximum penalty of imprisonment for 20 years. Section 61M is also part of Div 10 and attracts a maximum penalty of imprisonment of 7 years.

14 Section 6(1) of the Act provides that the State may apply to the Court for an extended supervision order against a sex offender who, when the application is made, is in custody or under supervision:

(a) while serving a sentence of imprisonment by way of full-time detention:

(i) for a serious sex offence, or

(ii) for an offence of a sexual nature,

whether the sentence is being served by way of full-time, periodic or home detention and whether the offender is in custody or on release on parole, or

(b) pursuant to an existing extended supervision order or continuing detention order,

referred to in this Part as his or her "current custody or supervision".

15 Clearly the plaintiff has satisfied this requirement since, as I have said, at the time the present application was made, the defendant was in custody serving a sentence of imprisonment for a serious sex offence.

16 Section 9 is concerned with the determination of an application for an extended supervision order. It is in the following terms:

(1) The Supreme Court may determine an application under this Part for an extended supervision order:

(a) by making an extended supervision order, or

(b) by dismissing the application.

(2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision.

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

(a) the safety of the community,

(b) the reports received from the persons appointed under section 7(4) to conduct psychiatric 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 sex 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 sex offence,

(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,

(f) 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,

(i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature.

The test under s 9(2)

17 Pursuant to s 9(2), the Court may make an extended supervision order “if and only if” it is “satisfied to a high degree of probability” that the offender is “likely to commit a further serious sex offence if he or she is not kept under supervision”.

“satisfied to a high degree of probability”

18 The words “satisfied to a high degree of probability” constitute a statutory standard of proof which is higher than the civil standard but lower than the criminal standard: see Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 at [27] per Bell J. See also Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119 at [5] and [18].

“likely to commit a further serious sex offence”

19 In Tillman v Attorney General for New South Wales (2007) 70 NSWLR 448, Giles and Ipp JJA construed the word “likely” in s 17(3) as “denoting a degree of probability at the upper end of the scale, but not necessarily exceeding 50 per cent” (at [89]).

20 The test as stated in Tillman was described in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 in the following terms:

The expression ‘a high degree of probability’ indicates something ‘beyond more probably than not’; so that the existence of the risk, that 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. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion ‘likely’ as explained in TSL. [at 21]

21 In the case of an application for an extended supervision order the burden is on the plaintiff to satisfy the Court to a high degree of probability that the defendant is likely, in the sense described above, to commit a further serious sex offence if he is not kept under supervision.

The section 9(3) factors in relation to the defendant

22 The s 9(3) factors which are applicable to the defendant are addressed below, albeit not in the order in which they are listed in the subsection, and with an inevitable degree of overlap.

Section 9(3)(h): the defendant’s criminal history

23 The defendant has an extensive criminal record with convictions recorded against him in Western Australia, Queensland and New South Wales. The table below sets out his offending history, with the convictions for sexual offences appearing in bold font.

DATE	STATE	OFFENCES/GRANT OF PAROLE	DETAILS OF CONVICTION AND SENTENCE
19.10.68	NSW	Neglected – exposed to moral danger	4.11.68 (Children’s Court): Admonished and discharged.
16.4.69	NSW	Break enter and steal	29.4.69 (Children’s Court): Committed to an institution; recommended that he undergo psychiatric treatment
12.4.72	NSW	Vagrancy	2.5.72 (Children’s Court): probation for 12 moths, to return to home at Albury and remain in employment in that area.
10.5.73	NSW	1. Malicious injury (x 2) 2. Stealing 3. Steal motor vehicle	9.1.74 (Children’s Court): Convicted. On 1 and 2, sentenced to 12 months probation, on condition of good behaviour and to accept supervision of the Probation and Parole Service. On count 3, sentenced to 12 months probation, on condition of good behaviour and supervision of the Probation and Parole Service.
20.5.73	NSW	1. Prescribed concentration of alcohol 2. Disqualified driver	9.1.74: Convicted On count 1, fined $100 or 20 days detention, licence disqualified for 12 months. On count 2, fined $200 or 40 days detention.
12.12.74	NSW	1. Disqualified driver 2. Negligent driving 3. Fail to stop after accident (x 2) 4. Negligent driving	12.12.74: Convicted. On count 1, sentenced to 2 months hard labour, disqualified for 2 years. On count 2, fined $50 or 10 days hard labour, licence disqualified. On counts 3 and 4: fined $50 or 10 days hard labour, licence disqualified for 2 years.
24.2.75	NSW	Prescribed concentration of alcohol	26.2.75: Convicted and sentenced to $200 or 40 days hard labour, licence disqualified for 6 months.
15.10.75	NSW	Fail to leave licensed premises	24.10.75: Convicted and fined $20 or 4 days hard labour.
25.1.76	NSW	1. Prescribed concentration of alcohol 2. Disqualified driver 3. false name and address 4. Negligent driving 5. Not stop at sign	Did not appear before the Court, recognisance forfeited.
12.9.76	WA	Aggravated assault of a female	13.9.76: Convicted and sentenced to 6 months good behaviour on bond of $50, court costs.
19.12.76	WA	1. Assault 2. Rape	9.8.77: Convicted Sentenced on count 1 to one year imprisonment. Sentenced on count 2 to five years imprisonment, NPP 3 years.
7.4.80	WA	Released on parole (assuming parole granted after NPP), parole period 2 years
18.7.80	NSW	1. Prescribed concentration of alcohol (.140) 2. Disqualified driver 3. False information	28.7.80: Convicted On count 1, sentenced to $400, costs $10 or 17 days hard labour, licence disqualified for 12 months. On count 2, sentenced to $400 or 16 days hard labour, licence disqualified for 6 months. On count 3, sentenced to $100 or 4 days hard labour.
15.8.80	NSW	Stealing	4.12.80: Not before the court, recognisance forfeited, warrant to issue.
11.12.81	QLD	1. Possession of concealable firearm 2. Stealing (x 2) 3. Steal with actual violence whilst armed with a dangerous weapon (x 2)	11.12.81: Convicted Sentenced on count 1 to 3 months imprisonment Sentenced on both counts in count 2 to 6 months imprisonment with hard labour, to be served concurrently. Discharged on the last charge
17.5.82	QLD	Obtain credit by fraud	17.5.82: failed to appear, warrant issued.
4.11.82	QLD	Fail to pay for accommodation and meals	Convicted and fined $40 restitution.
22.11.82	QLD	Breach Bail Act (contempt)	Convicted and fined $50
8.12.82	QLD	Rape	31.5.83: Convicted Sentenced to seven years imprisonment, directed to have psychiatric treatment in prison. Appeal to Supreme Court dismissed on 10.8.83.
5.11.86	QLD	Produce dangerous drug	4.6.87: Convicted Sentenced to 8 months imprisonment, cumulative with sentence then serving.
3.11.87	QLD	Escape lawful custody	30.4.03: Convicted Recorded imprisonment for 180 days; time spent in pre-sentence custody (287 days) deemed time served under this sentence.
16.11.87	QLD	Stealing (x 3)	23.11.87: One month hard labour on each count
16.7.88	NSW	Break enter and steal	24.8.88: Convicted Sentenced to three years imprisonment, NPP 18 months, from 15.7.88)
30.6.89	NSW	Released on parole; reported that day to Hurstville District Office but no further report and provided false address (3835)
24.12.89	NSW	1. Break enter and steal 2. Larceny (motor vehicle) (x 2) 3. Assault 4. Assault 5. Carry firearms in a manner likely to endanger safety	8.3.90: Convicted On count 1, sentenced to a minimum term of 3 years, with 1 year additional. On count 2, sentenced to fixed term of 1 year to be served concurrently On counts 3 and 4, sentenced to fixed term of 1 year to be served concurrently. On Count 5, sentenced to fixed term of 2 years, to be served concurrently.
24.12.92	NSW	Released on parole. Complied with reporting conditions until August 1993, when he was charged with further sex offences for which he was not ultimately convicted. Failed to comply with reporting conditions when bailed in October 1993.
16.11.93	NSW	Breached bail conditions	Deposit of $1000 forfeited, bench warrants issued.
19.9.98	NSW	1. Attempt aggravated sexual assault with a child under 16 2. Aggravated sexual assault – victim under 16 years old.	4.5.99: Convicted Sentenced on count 1 to a minimum term of 3 years, commencing 19.9.98 and concluding 18.9.2001; additional term of 2 years commencing 19.9.01 to 19.9.03 Sentenced on count 2 to a minimum term of 9 months commencing 19.9.98, with additional term concluding on 18.9.99.
18.9.01	NSW	Released to parole. Failed to report the next day as required.
11.7.02	QLD	Sexual assault	30.4.03: Convicted and sentenced to 107 days imprisonment – released given time served pre-sentence was 287 days.
12.7.02	QLD	Possess dangerous drug	11.3.03: Convicted and fined $250 or imprisonment for 5 days.
26.7.03	QLD	Fraud – dishonestly obtain property from another.	18.8.05: Convicted and fined $320, compensation $180 or 10 days imprisonment, 5 months to pay.
20-23.7.05	QLD	Trespass – entering and remaining in dwelling or yard (x 2)	18.8.05: Convicted, penalty as immediately above.
10.11.07	QLD	Trespass - entering and remaining in dwelling or yard	Convicted and fined $150 or 2 days imprisonment.

24 It is convenient to now consider the details of the defendant’s convictions in respect of sexual offences.

The first sexual offence

25 The defendant committed the first offence on the evening of 19 December 1976 when he forced a woman to submit to penile-vaginal intercourse. In a document prepared by the Police Department of Western Australia, the offence was described in the following terms:

About 3am on 19-12-76 accused went to the complainant’s room (Room 10 of Wickham Hotel …[illegible]…), tried the door, found it unlocked and entered it: as the complainant was in the staff toilets. On returning to her room she found the offender there. He attacked her, tore her nightie from her and man-handled her, knocking her about the room. He slapped her face and threatened to bash her head against the brick wall. He stripped her pants from her, tearing them, and against her will had sexual intercourse with her. The accused ejaculated.

26 It was also noted that the:

[o]ffender knew the complainant from a previous place of employment (Comets Transport Perth) but had had nothing to do with her in work or socially.

Offender became obsessed with the complainant and wanted to have sex with her regardless of the consequence.

27 Although it appears from that document that the defendant admitted the offence, he was subsequently tried and convicted by a jury of assault and rape. In sentencing the defendant on 9 August 1977, Burt J observed that:

On one view of it, this might appear to be a somewhat benign rape, if one can ever imagine such a thing. Having heard the evidence, however, and evaluated you as far as I can in the course of the trial, I can only say that I may have presided over a worse rape case, but if I have, I have forgotten it. I think it was a very bad case of rape. I do not think it is very much help to say now that great violence was not used. I feel sure that it would have been used if it had been necessary, but of course I do not sentence you on that basis. …

Your record is certainly not good. It appears from it that you have an alcohol problem. There is a suggestion in the psychological report which comes to me from your counsel that you may also have a minor drug problem. Whatever the precise nature of the problem might be you presently represent a very real danger to young women…

The second sexual offence

28 The second such offence occurred in Queensland in 1982. It is not clear from the information which is available, whether or not the defendant pleaded guilty to this offence. In any event, the allegation was that at about 9pm on 8 December 1982 the defendant went to the victim’s house. When the victim decided to go to bed, the defendant followed her and forced her on to her bed, whereupon he pulled down her underpants. It was then alleged that the defendant used force and threats in an attempt to have sex with the victim. He then pulled her to her feet and took her to the backyard of her home, where he again threatened her. He then forced her on to the ground and commenced to have sexual intercourse with her, after having kissed her and placed his tongue in her vagina. He then told her to perform fellatio upon on him, at which stage she managed to get free and run to a neighbour’s house. The defendant was alleged to have held the victim against her will for about two hours.

29 In the course of his interview with Dr Lewin, the defendant described this rape as being “very sordid”. He said that the victim was the girlfriend of the man who had been his groomsman at his wedding. The defendant stated that he had subsequently caught this man having intercourse with his wife, and that he committed this offence because he was “squaring up”. In his interview with Dr Roberts, the defendant described this offence as being a “revenge thing”.

The third set of sexual offences (the “index” offences)

30 The third set of offences involved the matters for which the defendant was sentenced by Ducker DCJ. They occurred in September 1998 and involved a 12 year old girl. The defendant pleaded guilty to these offences. His Honour found the following facts:

(i) The defendant was first introduced to the victim’s mother through her sister, as a result of which a relationship developed.

(ii) At the beginning of September 1998, the defendant moved in to the premises of the victim’s mother, with whom he lived in a de facto relationship. The victim and her younger sister also resided at these premises.

(iii) At about 8pm on 18 September 1998, the victim was in the lounge room watching television. The defendant, who had been asleep in the bedroom which he shared with the victim’s mother, awoke and went into the lounge room, where the child was lying on a mattress on the floor dressed in her school uniform.

(iv) The defendant proceeded to fondle the victim’s breasts with one hand, whilst holding her down with the other. He then continued to fondle her breasts for a time. When the victim told the defendant that she wanted to take a shower, he permitted her to get up and go to the bathroom.

(v) The victim emerged from the shower wrapped in a towel. The defendant then led her to the bed which he shared with her mother. He pushed her back on to the bed and then lay on top of her. He pushed the victim’s legs apart with his hands and then placed his penis on the outside of her vagina. He tried, but was unable, to push his penis into her vagina. The victim then pushed the defendant away. She got up and again went to the bathroom where she showered.

(vi) The victim then walked back into the lounge room where the defendant was sitting. He apologised to her whereupon she went into her bedroom and locked the door.

(vii) The defendant subsequently went out and the victim took the opportunity to ring her mother.

31 His Honour noted that the defendant was affected by “a large ingestion of intoxicating liquor and other substances”, including valium and cannabis. His Honour was prepared to accept that the defendant was “probably disinhibited by the alcohol and other substances that he had ingested and that he gave way to an impulse whilst in that somewhat intoxicated state”. His Honour observed that the offence constituted:

a breach of trust. The prisoner, although only briefly, had stood in the position of a father towards this child and was under a responsibility to care for her, to safe-guard her interests including her moral welfare as well as her physical welfare. However, I do not believe that there was any high degree or indeed any degree of premeditation. I make that finding on the facts available to me and I am unaware of any evidence to suggest the contrary.

32 In terms of the objective seriousness of the offence, his Honour considered that it fell somewhat towards the bottom end of the scale, although his Honour emphasised that “all offences of a sexual nature against children must be regarded seriously”. His Honour noted that the defendant’s record indicated that he was “a potentially dangerous person to be at large in the community if he drinks to excess, which he apparently does or did, fairly regularly”. However, his Honour also observed that the defendant “appears to have shown, not before time, a genuine attempt to come to grips with the serious problems which he has”. There was material before his Honour which indicated that the defendant had been accepted into the CUBIT program and that he had sought to begin a program of reformation “and to attempt to overcome the sexual impulses and the drinking habits, which combined with those impulses, has led to him falling foul of the law on so many occasions”. His Honour continued:

It is difficult to know when prisoners of such experience as this man are concerned, whether or not they are sincere, whether they are just merely going through the ritual, which the theory is, will lead to a reduction of sentence. I have no way of knowing for sure, but my impression is that Mr Thomas at age forty-three may well have realised that he is going nowhere unless some dramatic change occurs in the way he has led his life up until now. The prospects for the future are very bleak indeed and he may well spend a great deal more time in prison.

33 Although his Honour did not have any evidence before him indicating that the offences were premeditated, material is now available concerning what the defendant has subsequently said about the matter. It suggests that the reason the defendant developed a relationship with the victim’s mother was so that he could get close to the victim.

34 During the course of his interview with Dr Roberts, the defendant stated that whilst he had no desire, when sober, to have sex with the victim’s mother, he needed somewhere to live. He described the victim as having an “incredible body”, and said that she looked like a 20 year old. The defendant told Dr Lewin that he had an obsession with the girl’s body, and that he wanted to see it, although he said that he did not know how the offence had happened. He said that he believed at the time that the victim was giving him “the come on”, although he now realised that “maybe she was just a child. I interpreted it as something sexual which it wasn’t.”

The fourth sexual offence

35 The final sexual offence of which the defendant has been convicted occurred in Queensland on 11 July 2002. At the time of the offence the defendant was on parole, although his parole had already been revoked because of his failure to comply with his reporting conditions. I will return to this issue in due course.

36 The victim was a male who was 18 years old at the time of the offence. On the evening of the offence, the defendant was at the victim’s home. The defendant tried to proposition the victim, and when the victim declined his offer, the defendant “brushed his hands over the [victim’s] bottom before tapping the [victim’s] groin (penis area) twice with his hand”. The defendant pleaded guilty to sexual assault. When he was interviewed the following day, the defendant is reported to have said that:

[h]e could not recall touching the complainant last night however had propositioned him for sex and touched him on previous occasions. Deft. stated that he most probably did grab the complainant on the penis as this is something he would normally do. The deft. could also not recall offering the compl. money for masturbating him however stated he has offered the compl. money in the past for previous acts. The deft. stated he was sorry for his actions.

37 During the course of his interview with Dr Roberts, the defendant said that he had met a young man who was interested in working as a male prostitute. The defendant recalled that he had struck the man in the crotch with the back of his hand, and that the police had been called. The defendant said that he had been intoxicated at the time.

38 White DCJ, who sentenced the defendant, assessed the offence as being at the lower end of the scale of seriousness, notwithstanding the defendant’s extensive criminal history “including very serious sexual offences”. The sentencing judge was also satisfied that the time which the defendant had spent in custody, being 287 days, would adequately punish him for both the sexual assault offence and a further offence of escaping from lawful custody.

39 The defendant has been charged with a number of other sexual offences which have not resulted in a conviction. In April 1977 he was charged with the rape of a woman in Western Australia but was acquitted. On 17 August 1993 the defendant was charged with an aggravated indecent assault upon a woman in Port Macquarie. He was also found not guilty of this charge. On 17 November 2005 the defendant was charged with two counts of raping an 11 year old girl in Queensland. In a letter that he wrote to the NSW Parole Authority, dated 15 September 2008, the defendant said that the charges had been withdrawn and that the case had been dismissed. The defendant gave a similar account to Dr Lewin. There is no other information available in respect of these charges. It is common ground that the matters which have not resulted in a conviction are relevant only to the risk assessment issues raised by the Static 99 instrument to which reference will be made in due course.

40 Mr Sheehan made the following observations about the defendant’s criminal history:

Mr Thomas has recorded convictions for sexual offending occurring in 1977, 1983, 1998 and 2002. He has offended against adults and children, including male and female victims. The victims have generally been known to Mr Thomas. The offences have ranged from sexual fondling to penile-vaginal sexual intercourse. Victim ages have ranged from 12 years to adulthood. … Review of file material reveals an entrenched pattern of general criminality throughout Mr Thomas’ life. Without listing the non-sexual convictions individually, the totality of criminal records from NSW, Queensland and Western Australia indicate a broad range of offences including: property-based offences, fraud, interpersonal violence, firearm offences, drug-use, driving offences and failing to comply with supervision conditions (bail and parole). The range of offences suggests criminal versatility and the consistency of offending indicates a criminal lifestyle. It may be that Mr Thomas’ sexual offences are best viewed as embedded in a broader pattern of criminality.

41 In Mr Sheehan’s opinion, the defendant did not meet the diagnostic criteria for Paedophilia, as specified in the DSM-IV-TR. Mr Sheehan regarded the defendant’s choice of victims as being more a function of opportunity, as opposed to a fixated deviant interest in sexually immature children or sexual violence. Whilst Dr Lewin thought it possible that the defendant had an underlying and undisclosed Paraphilic Disorder, he considered that the evidence for a paraphilia, such as paedophilia, was not strong. He concluded that:

[I]t appears more likely that Mr Thomas took any available opportunity whilst heavily intoxicated.

42 Dr Roberts was also of the opinion that all of the defendant’s offending behaviour had occurred in the context of intoxication. Nor was he prepared to diagnose the defendant as having an underlying Paraphilic Disorder.

Section 9(3)(f): the level of the defendant’s compliance with any obligations to which he has been subject while on release on parole

43 It would appear that the defendant committed various further offences both in NSW and Queensland after having been released on parole in 1980 following his conviction for the offence committed in 1976.

44 A report prepared by the Queensland Parole Advisory Committee, dated 3 November 1986, recommended against granting the defendant parole following his 1983 conviction for rape. It concluded that the defendant was seen as a high risk recidivist case for the following reasons:

(1) He is a product of a disruptive upbringing with a lengthy juvenile history;

(2) He has a long criminal history;

(3) He has committed two offences of rape, the last being committed four months after his parole period for the previous rape offence expired;

(4) He has had convictions for failing to appear and breach of the Bail Act and his parole response appears to have been unsatisfactory; and

(5) He has a history of relationship problems with women and all such relationships have been of short duration. He appears to treat women as chattels.

45 On 30 June 1989, the defendant was released on parole in relation to the sentence which was imposed upon him on 24 August 1988 for an offence of break enter and steal. He reported to his parole officer that day, but he failed to report thereafter. A Parole Report dated 22 December 1989 noted that it was not possible to contact the defendant at the address which he had provided because “it was non-existent”. The defendant was subsequently charged with further offences on 24 December 1989 and was taken into custody. On 25 January 1990 the Offenders Review Board revoked the defendant’s parole because he had breached that condition of his parole which required him to reside at an address agreed upon by a parole officer.

46 On 8 March 1990 the defendant was sentenced to three years imprisonment with an additional term of one year in respect of a range of offences. The defendant was released on parole on 24 December 1992. A Pre-Release Report prepared by the Probation and Parole Service, dated 26 August 1992, supported the defendant’s release to parole, inter alia because of his good record while in prison, his report that he had come to terms with his homosexuality, and the presence of support for him in the community through a sponsor who lived in Sydney. It appears that that arrangement proved not to be entirely satisfactory and from 19 January 1993, the defendant reported as directed to the Port Macquarie District Office, following his relocation to that area. On 17 August 1993 the defendant was charged with the sexual offences, to which reference was made earlier, and granted bail.

47 However, he failed to attend Lismore District Court on 3 November 1993 and a bench warrant was issued for his arrest. On 1 December 1993 the Probation and Parole Service prepared a report indicating that the defendant had not contacted the Service and that his then whereabouts were unknown. In due course the defendant was apprehended. He was ultimately tried in respect of those matters in February 1998 but was found not guilty.

48 The defendant was released on parole on 18 September 2001 in respect of the sexual offences which he had committed in 1998. The defendant failed to report to the Probation and Parole Service the following day as he had been directed to do. He also failed to attend a scheduled appointment at Forensic Psychological Services and it was also discovered that he had not been residing at the accommodation that had been arranged. The sexual offence for which the defendant was convicted in 2003 was committed whilst he was still on parole in respect of the 1998 offences.

49 At some stage during 2007, the defendant moved to Victoria. As I indicated earlier, the defendant was extradited to New South Wales in April 2008 to serve the balance of his parole period for the 1998 offences.

Section 9(3)(b): The reports received from the persons appointed under section 7(4) to conduct psychiatric examinations of the offender, and the level of the offender’s participation in any such examination

The report of Dr Roberts dated 13 May 2010

50 Dr Roberts interviewed the defendant on 6 May 2010. The defendant conceded to Dr Roberts that alcohol was a “huge” problem for him. He told him that he had commenced drinking at the age of 16 and that his consumption had escalated until he was in his late twenties. The defendant described himself as a “pub drinker”, drinking during the day until his money ran out and consuming up to twenty “pots” (5.7 litres) of beer per day. He also reported a long history of cannabis use. He told Dr Roberts that although he had tried other drugs, including heroin and cocaine, and that he had used speed on a weekly basis, he had not abused those drugs for a period of approximately 13 years.

51 Based upon the defendant’s account of his alcohol use, Dr Roberts considered that a diagnosis of Alcohol Dependence in Sustained Full Remission in a Controlled Environment (DSM-IV-TR) could be made. This diagnosis was based on the defendant’s account that he had achieved and maintained abstinence for the preceding four and a half to five years. Dr Roberts observed that it was uncertain how the defendant’s abstinence from alcohol in custody, being a controlled environment, would translate to the general community. Moreover, he noted that despite having undertaken some steps towards rehabilitation in the past, it was apparent that he had nonetheless relapsed into the abuse of alcohol. Dr Roberts said that the defendant acknowledged that alcohol had contributed to his offending behaviour. He said that the defendant also recognised the risks which were associated with consuming alcohol in the future.

52 Dr Roberts considered that the defendant had demonstrated insight into the abhorrent nature of his offences, and that he had expressed remorse. Dr Roberts expressed the opinion that the defendant represented a “moderate risk” of engaging in a further serious sexual offence if he was released into the community unsupervised. On the other hand, were the defendant to engage in consuming alcohol, his opinion was that the defendant would represent “a high risk of engaging in a further serious sex offence”.

53 Dr Roberts’ opinion as to the defendant’s otherwise moderate risk of reoffending was based on his understanding that the defendant had successfully participated in the CUBIT Program on two occasions and the fact that he had not abused alcohol or illicit substances for a period of between four and five years. The full circumstances surrounding the defendant’s participation in the CUBIT program are considered a little later in these reasons.

54 Dr Roberts expressed the opinion that lifelong abstinence from alcohol is “imperative” in the defendant’s case. Although his offending behaviour could not be simply ascribed to intoxication, Dr Roberts considered “that the disinhibition conferred by intoxication would have been a significant contributing factor to his conduct”. He also considered that the defendant should abstain from using other illicit substances, such as cannabis and other drugs, and that pharmaceutical products, such as benzodiazepines, should be avoided or, at least, closely supervised by a prescribing clinician.

55 Dr Roberts considered that the defendant required ongoing antidepressant medication, given his history of mood and anxiety symptoms. He also considered that the defendant would benefit from ongoing community based psychological therapy. Dr Roberts expressed the view that group therapy would provide the defendant with significant benefits, as it would facilitate the development of his social and communication skills. He said that it could also potentially assist him to establish a social network of people who were motivated to remain abstinent from substance abuse.

The report of Dr Lewin dated 17 May 2010

56 The defendant attended two sessions with Dr Lewin who examined him in all for almost two and a half hours. The defendant gave an account to Dr Lewin of having spent time in juvenile detention between the ages of 13 and 16. He told him that during that period he had been sexually assaulted by older male residents and staff. Before being sent to the detention facility, he said that he had run away from home on several occasions. On the last occasion, he said that he had spent several weeks in the company of an older man and several boys at Kings Cross, and that he had been sexually assaulted by the older man. As a consequence, he said that he was found by a court to have been exposed to “moral danger”.

57 Dr Lewin noted that the defendant was emotionally detached and that he appeared to be uninterested even when discussing his own experiences. Dr Lewin said that the defendant:

spoke in general terms of feelings of victims but did not appear to demonstrate a personal understanding of the impact of his behaviour. This was most apparent when he spoke about the rape conviction where he described ‘squaring up’.

58 Dr Lewin observed that there was evidence in the defendant’s case:

of longstanding vulnerability including traits of lack of empathy in regard to the suffering of others, repeated difficulties in judging social situations, failure to learn from experience and a long-term pattern of anti-social conduct following an earlier period of conduct disturbance in childhood and adolescence.

59 He noted that the defendant demonstrated further evidence of personality vulnerability “when he described telling lies, cheating and manipulating others, a social life involving members of the criminal milieu and his involvement with running an escort agency”.

60 Dr Lewin considered that the defendant’s history of poly-drug abuse and addiction were consistent with his history of personality vulnerability of an anti-social type. Although the defendant had had a history of intermittent mood disturbance in the past, Dr Lewin observed no sign of a current depressive or anxiety disorder.

61 The combination of poly-substance abuse and a personality disposition of the anti-social type is, in Dr Lewin’s opinion, “of particular concern when assessing the future risk of offending”. He continued:

Further [the defendant] has demonstrated lack of empathy and lack of understanding of the nature of his transgressions are part of an ingrained pattern of behaviour which is unlikely to be amenable to treatment

This serious and entrenched pattern of disturbance has its origin in a disturbance of emotional attachment at an early stage in Mr Thomas’ life

Mr Thomas spoke of conforming to the requirements of the authorities with regard to his treatment program. I think it unlikely that he has the capacity to seek a change in his outlook through gaining insight or through learning to adopt more adaptive behavioural strategies

The best known method for assessing the relative risk of future violent behaviour is to consider the long-term pattern of behaviour in the past. Clinical experience suggests that anti-social character traits are unlikely to change significantly

62 Like Dr Roberts, Dr Lewin considered that accurate monitoring regarding the defendant’s use of alcohol and other illegal drugs would be promoted by regular attendance at a drug and alcohol facility together with random drug screening. Dr Lewin remarked that:

[c]onsidering the history provided by Mr Thomas, the onset of drinking or other drug-use behaviours appears to be a clear signal that his case is once again spiralling out of control. Careful monitoring in this regard may allow any early intervention and pre-emptive action. In regard to the risk of drinking or drug use in the future, this is no different to any other addict who also has anti-social character traits. The likelihood of deceptiveness should be noted.

63 In addition, Dr Lewin considered that the defendant should be referred to an addiction specialist, to review and rationalise his current prescription for Oxycontin, which, according to the defendant he has been taking, since shoulder surgery in 2007.

The report of Dr Lewin dated 27 May 2010

64 In this report Dr Lewin observed that:

[I]t would also be appropriate to note that personality change occurs very gradually and that individuals with an antisocial personality disposition are highly resistant to psychological or psychiatric treatment interventions. There is no evidence-based treatment which is widely accepted for Antisocial Personality disorder or the related cluster of antisocial character traits.

Section 9(3)(c): The results of any other assessment prepared by a …registered psychologist … as to the likelihood of the defendant committing a further serious sex offence, the willingness of the defendant to participate in any such assessment, and the level of the defendant’s participation in any such assessment

The Risk Assessment Report prepared by Patrick Sheehan

65 The defendant consented to be interviewed by Mr Sheehan to enable him to prepare the Risk Assessment Report to which I referred earlier. Mr Sheehan noted that his mood was generally euthymic “with the exception of one brief episode of tearfulness when the defendant was describing his feelings regarding being subject to a potential extended supervision order/continuing detention order”.

66 In the Executive Summary to the Report, Mr Sheehan observed that:

He is assessed as a high risk of sexually reoffending relative to other male sex offenders. He has a life-long and diverse history of sexual offending against children, adults and victims of both genders. Perhaps the most notable element of Mr Thomas’ offending history is his prior completion of an intensive treatment program and subsequent sexual reoffending within one year of release

67 Mr Sheehan expressed the opinion that the defendant’s history suggested:

an enduring pattern of inner experience and behaviour (as manifested in cognitive, emotional and interpersonal contact) that has led to significant distress and impairment in many areas of functioning.

68 The enduring, inflexible and self-damaging nature of this pattern was, in Mr Sheehan’s view, indicative of a personality disorder. He said that a number of hallmarks of Antisocial Personality Disorder were present over time including:

69 Mr Sheehan observed that although the defendant expressed positive intentions with regard to how he would manage his life on release, “his history of failing to apply positive custodial presentation to a community context would suggest caution when predicting his behaviour on release”. He also said that:

despite his stated verbal commitment to living an offence-free life, the overall totality of evidence suggests that Mr Thomas remains in the high risk category of sexual offending relative to other adult male sexual offenders.

70 Before expressing this opinion, Mr Sheehan examined the defendant’s dynamic risk factors, being those risk factors which have been consistently found to be related to sexual reoffending.

Intimacy deficits

71 Mr Sheehan said that the defendant’s history suggested deficits in his ability to invest in intimate and stable relationships. This, he said, could be attributed to his antisocial lifestyle, and to his transient living situation. Mr Sheehan described his pattern of relationships, as revealed by CUBIT case notes, as being “to commence with over-familiarity, false intimacy and poor interpersonal boundaries”, often presenting a self image that is unrealistic or unsustainable. He said that when the defendant does not feel satisfied that he is a central figure in the person’s life, or that he is controlling the relationship, “he becomes deeply anxious, fearful of dependency, and subsequently ruminative, paranoid and resentful”. The result was that he often drank to the point of being intoxicated.

72 Although the defendant does not presently have an intimate partner, and did not receive any personal visits whilst in custody, he indicated to Mr Sheehan that he had been in regular telephone contact with a man with whom he had enjoyed a stable intimate relationship during 2008. That information is supported by the custodial telephone records maintained by the Metropolitan Special Programs Centre at Long Bay although it is at odds with what the defendant told a parole officer in an interview in February 2010. He told that officer that he had chosen to discontinue that relationship because of his partner’s criminal affiliations. The defendant also suggested that he had been in weekly contact with his brother, although custodial telephone records suggest that he had only had seven telephone conversations with his brother since mid-2009. Mr Sheehan expressed the view that the development of an intimate familial connection “may be beneficial for the defendant and the process of cultivating this relationship will need to be undertaken carefully”.

Social Influences

73 Mr Sheehan described the defendant as having a “long history of gravitating towards antisocial peers”. During his interview with Mr Sheehan, the defendant acknowledged that he needed “to totally disassociate from such persons and start anew”.

Distorted Attitudes

74 Mr Sheehan noted that the defendant had apparently “supported an antisocial belief system for many years, based on superficial self-interest, disregard for rules, a strong sense of entitlement and the ability to rationalise, justify or explain away irresponsible behaviour”. Mr Sheehan expressed his concern that the defendant’s ability:

to characterise his antisocial behaviour as benign has continued to influence Mr Thomas, as observed in the CUBIT program, where Mr Thomas sought to portray his involvement in pimping activities as ‘supportive’ and somehow pro-social (CUBIT case note, 18/11/09). His narrative that his most recent victim wanted to be a male prostitute (Grant, 3/2/10) may also be a form of distorted thinking, seeking to minimise the sense of wrong-doing.

General Self-Regulation

75 Mr Sheehan observed that the defendant has had “severe life-long problems with general self-regulation”. He went on to say that:

Sexual self-regulation

76 Mr Sheehan described the defendant’s sexual offences as:

a confluence of a general sexual preoccupation, blurred sexual boundaries, a sense of sexual entitlement and poverty of empathic connection with the distress of the victim.

77 Although the defendant’s offending history includes a child victim, Mr Sheehan saw this aspect of his history as being more a function of sexual opportunism and the vulnerability of young people as opposed to any specific sexual interest in children. Mr Sheehan also noted that during the course of the CUBIT program, the defendant tended to invade the personal space of others, although when the matter was raised with him it was noted that things improved. Mr Sheehan expressed the opinion that if the defendant maintained a respectful appreciation of interpersonal physical boundaries that, in itself, would provide some protection against the risk of future offending.

78 The defendant reported a reduced libido in recent years which he attributed to the use of heavy painkillers.

Acute Dynamic Risk Factors

79 Mr Sheehan identified the following matters as constituting acute dynamic risk factors in relation to the defendant:

80 Mr Sheehan noted that the defendant’s history did not suggest that he would “sexually act out” on every occasion on which those features coincided. Rather he concluded that his history suggested that:

over time as he was exposed to these risk factors without intervention, there would be less impediments to a sexual offence should the defendant find himself with an opportunity to sexually offend and feel sexually aroused.

Other Psychological reports

81 Aside from the Risk Assessment Report, the defendant has been assessed by psychologists on a number of occasions, particularly in relation to questions of sentence and/or parole.

82 Some of those reports are discussed in the context of the issues which are raised by s 9(3)(e) of the Act. For present purposes, it is convenient to refer to three other reports.

Report of Mr David Mutton dated 17 April 1990

83 Mr Mutton, a psychologist with Corrective Services (NSW), interviewed the defendant and prepared a report which was “based largely on self report and psychometric assessment”. Mr Mutton noted that the defendant acknowledged that he had an alcohol problem, and that abstinence was the only solution. The defendant expressed the view that abstinence would be easier to achieve if he was to work and live in the country. Mr Mutton also recorded that whilst in custody in 1986, the defendant became a polysubstance abuser following his mother’s death, using marijuana, and also speed and heroin for the first time. According to the defendant’s self report, he had attended one week of a drug rehabilitation program in Canberra, “but said that he recovered eventually under his own efforts”.

Report of Mr Peter Briggs dated 9 April 1999

84 Mr Briggs prepared a report on behalf of the defendant in respect of the sentencing proceedings which related to the “index offences”. According to the defendant’s account at the time, he had started consuming alcohol on the day of the offence at a hotel when it opened at 8am. He said that during the course of the day, he had consumed approximately 25 schooners of full strength beer, as well as approximately five glasses of bourbon and coke. He said that he had also consumed between 20-25 Valium tablets and that he had smoked approximately six “joints” of marijuana. Mr Briggs made the following observations of the defendant:

In my opinion he is fundamentally a very inadequate person, and this is clearly reflected in his dysfunctional adult life. He has low self esteem and a lot of underlying insecurities. Although he presents on the surface as if he is coping reasonably, in my opinion underlying this he has significant problems with anxiety and feelings of depression. He is a lonely and dissatisfied person who has problems forming and maintaining relationships. He has a very dependent personality, which in part is reflected in his tendency to rely on various drugs to help him cope.

He lacks commitment and direction in his life.

85 Although Mr Briggs was concerned that the defendant was before a court for a third occasion in relation to serious sexual offences, he did not consider it surprising “given his upbringing, his traumas and his personality problems”. He also considered that he required “considerable psychotherapy”.

Report of Ms Angela Allen dated 30 January 2009

86 Ms Angela Allen prepared a psychological report for the NSW Parole Authority in relation to its consideration of whether to release the defendant on parole in 2009. For the purposes of the report, Ms Allen interviewed the defendant on three occasions. Ms Allen noted that on a test administered to assess a range of entrenched personality variables and transient clinical states, the defendant’s scores revealed a personality style characterised by dependent traits which could also be characterised by antisocial patterns. Results on clinical syndrome measures revealed significant elevations for Anxiety, Alcohol and Drug Dependence.

87 On the LSI-R test, which is an actuarial assessment tool used for inmate populations, the defendant’s risk level fell within the high risk/needs category.

Section 9(3)(d): the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the defendant committing a further serious sex offence

88 In preparing his Risk Assessment Report, Mr Sheehan used the Static-99R instrument to assess the defendant’s static risk of reoffending. The instrument, which has moderate predictive accuracy, was updated in 2009 using studies from Canada, the United States, New Zealand and Europe with a total sample size of 6,774 sexual offenders. It now consists of 10 items and produces estimates of future risk based on a number of factors present in any one individual, which can be interpreted in two ways:

Absolute risk

Relative risk

89 The defendant scored a “6” on this instrument. In terms of absolute risk, Mr Sheehan reported that offenders with that score showed a rate of sexual recidivism ranging between 13.4-27.7 percent over five years, and between 16.7-37.3 percent over ten years. The rate of violent recidivism for offenders with a score of 6 in the sample ranged between 31.2-44.9 percent over five years, and between 39.2-53.2 percent over ten years. The recidivism rate is expressed in terms of a range of percentages due to the significant differences which are found in recidivism rates within the same Static-99R score.

90 In terms of relative risk, Mr Sheehan concluded that the defendant is at a high risk relative to other male sexual offenders. Indeed a score of 6 and above places a person in the high range. According to Mr Sheehan, “offenders with a score of 6 showed 2.96 times the recidivism rate of a ‘typical’ sex offender’”.

91 Mr Sheehan observed that:

[t]he recidivism estimates provided by the Static-99R are group estimates based on reconvictions and were derived from individuals with the same score. As such, these estimates do not directly correspond to the recidivism risk of an individual offender. The offender’s risk may be higher or lower than the probabilities estimated in the Static-99R depending on the other risk factors not measured by this instrument.

Section 9(3)(e): Any treatment or rehabilitation programs in which the defendant has had an opportunity to participate, the willingness of the offender to participate in such programs, and the level of the defendant’s participation in any such programs

92 Between 25 June 1999 and 2 June 2000, the defendant participated in the CUBIT program. The CUBIT Final Treatment Report dated 2 June 2000, which was prepared by Messrs Baird and Bright, described the defendant’s performance as “varying between satisfactory and poor”. They also noted that the defendant was “consistently troubled with therapeutic work which focussed on emotional states”.

93 The authors concluded that:

[d]uring treatment in CUBIT, Mr Thomas has started to develop an understanding of the factors which led him to commit sexual offences. Mr Thomas has a long criminal history which includes a range of sexual offences. Given this history, it is positive that Mr Thomas chose to attend the CUBIT programme and remained committed to treatment.

In order to decrease his level of risk and to reduce his risk of reoffending, Mr Thomas needs to continue to address the issues he has commenced working on whilst in the CUBIT programme. In particular he needs to develop challenges to cognitive distortions and practice these regularly. He also needs to work at gaining a more meaningful understanding of his offence cycle and relapse prevention plan.

94 In a psychological report prepared for the NSW Parole Board, dated 12 April 2001, Ms Anne Young observed that the defendant had began maintenance group work at Kirkconnell on 7 June 2000 but had dropped out in August, stating that he wanted to deal with things on his own. He had returned to the group on 18 December 2000, “as a result of being told he would be removed from Kirkconnell CC if he was not attending”. Ms Young stated that he had thereafter participated satisfactorily in that group.

95 Ms Young noted that while the defendant was able to “very effectively challenge other group members”, which demonstrated that he had an understanding of the concepts and connections between thoughts, feelings and behaviours, “at times Mr Thomas does not apply the same degree of insight to himself and his behaviour”. Ms Young assessed the defendant’s risk of sexually reoffending as being in the moderate range, with warning signs that he was not managing his risk factors. These included the use of illegal drugs and alcohol, isolating himself, not meeting commitments, poor management of negative emotional states, and employment in industries that encourage casual sex.

96 In terms of further progress, Ms Young stated that the defendant:

still needs to increase the number of positive social influences in his life. He has no personal support in the community. His past friendships have involved people who would endorse attitudes that support sexual abusive behaviour. He is very well aware that it will not be helpful for him to mix with these people. However, he has yet to develop any positive social influences in his life.

97 On his return to custody in April 2008, the defendant was offered the opportunity to participate in the CUBIT program. He declined to do so. He did, however, participate in the maintenance program from October 2008. When staff became aware that the defendant had committed a further sex offence in Queensland, he was encouraged to re-engage with the CUBIT program instead of attending the maintenance program. The defendant declined to do so. He did however continue to attend the maintenance program and completed six sessions in total.

98 Following an unfavourable parole hearing, the defendant re-entered the CUBIT program on 23 April 2009. The evidence indicates that he “commenced the program in a state of ambivalence”. Mr Sheehan described his participation in the program in the following terms:

During the first half of the treatment program, Mr Thomas was coasting, making modest treatment gains and continuing to exhibit behaviours such as: crossing interpersonal boundaries, explaining away outstanding treatment goals when challenged, and procrastinating with written tasks. However, towards the end of 2009, Mr Thomas was noted to reflect more personal responsibility for his behaviour both past, present and future. He is noted to use therapy sessions to greater effect, by reflecting on his own behaviour and appearing amenable to open discussion about this. Changes were also observed in the greater CUBIT therapeutic community, where Mr Thomas was noted to have improved his interpersonal style by not crossing interpersonal boundaries and exhibiting less irritability. Importantly, Mr Thomas’ recent written work suggests that he has spent time on the details of a positive lifestyle.

99 During the course of the defendant’s interview with Mr Sheehan on 18 February 2010, he demonstrated, according to Mr Sheehan, “an ambivalent attitude toward ongoing risk”. Although the defendant stated that he was glad to have engaged in CUBIT, and acknowledged that it was important for him to address his interpersonal style, Mr Sheehan said that he “consistently sought to describe his problems as strictly in past tense”. Mr Sheehan observed that the defendant:

explained that he believed he had established a stable and future oriented lifestyle in the months before his extradition to NSW in 2008. Mr Thomas explained that he had arranged for the male victim of the 2002 offence to travel to Sydney as a character witness during court proceedings for the current application, reflecting ongoing ambivalence regarding his understanding of that offence. Mr Thomas also expressed the conviction that his risk is now ameliorated because he has now come to terms with his identity as a homosexual male.

100 It may be noted that, as far back as 1992, the defendant had advanced as a reason why he should be granted parole, the fact that he had come to terms with his homosexuality.

Section 9(3)(g): level of the defendant’s compliance with any obligations to which he has been subject under the

Child Protection (Offenders Registration) Act 2000

or the

Child Protection (Offenders Prohibition Orders) Act 2004

101 The provisions of the Child Protection (Offenders Registration) Act 2000 which came into operation on 15 October 2001, do not apply to the defendant and nor has he been subject to any orders made under the Child Protection (Offenders Prohibition Orders) Act 2004.

Section 9(3)(i): other information available as to the likelihood that the defendant will in future commit offences of sexual nature

Drug and alcohol abuse

102 When the defendant was asked by Dr Roberts what he considered to be the risk factors in relation to his offending behaviour, he referred to “a complete breakdown of any thought process” in the context of an addiction to alcohol.

103 Mr Sheehan reported that the defendant’s files include multiple references to his history of polysubstance abuse, including alcohol, cannabis, opiates and amphetamines, with many of his offences, both sexual and otherwise, being “temporally associated with alcohol or other drug intoxication”. An electronic case note dated 10 November 2008 in relation to the defendant’s self-referral for the Getting SMART program, indicated that the defendant had commenced drinking alcohol at the age of 12 and that by the age of 18 he was drinking on a daily basis. The defendant told the Services and Programs Officer at Kirkconnell that he had used speed and cocaine almost daily in his late 20s, whilst he was working as a chef. He said that he had also occasionally used heroin and methadone during this period.

104 Although heroin was described as being the defendant’s drug of choice, it appears that he was, and remained, a more frequent user of cannabis. Mr Sheehan referred to the fact that on his most recent reception into custody the defendant had reported having consumed 20 “pots” of alcohol as well as smoking 4 “joints” of cannabis each day. The defendant said that he had last consumed those substances four days before coming into custody. The defendant was assessed on reception at Lismore as rating 2 on the Alcohol Withdrawal Scale, which is defined as “constant tremor, upper light extremities”. This assessment of his condition is at odds with other accounts that the defendant had given about his drinking habits. In an electronic case note dated 3 February 2010, for example, the defendant told a parole officer that he had ceased alcohol abuse in 2007 as a result of being prescribed Oxycontin. He also stated that he been admitted to hospital on a number of occasions because he had mixed alcohol and his medication.

105 The defendant has engaged in a number of custodial programs directed at addressing his substance abuse. An electronic case note prepared by the Services and Programs Officer at Kirkconnell indicated that by 2 December 2008, he had completed 12 sessions of the Getting SMART program, describing his attendance as punctual and noting that he had completed all homework tasks. The Officer considered that the defendant had good relapse prevention strategies in place and was “planning on still attending AA for support”.

106 Mr Sheehan came to the same view as that expressed by the court appointed psychiatrists, namely that management of substance use would “require ongoing attention throughout any community supervision order”.

Post release plans

107 During the course of his interview with Mr Sheehan, the defendant indicated that he wished to return to Victoria, which is where he had been residing prior to his extradition to New South Wales. The defendant informed Mr Sheehan that he wanted to obtain accommodation near his brother’s residence in rural Victoria, his brother having apparently agreed to let him reside with his family until the defendant found his own place.

108 The defendant told Dr Roberts that if he was not placed on an extended supervision order, he would travel to Melbourne “to see how it went” with the man with whom he had been in an intimate relationship in 2008. That is the relationship to which I referred earlier. The defendant told Dr Lewin that whilst he was no longer involved with that man, he wondered whether they might be able to re-establish a relationship in the event that he was permitted to relocate to Victoria.

109 Dr Roberts noted that in an Offender Intake Form, dated 1 December 2008, the defendant had referred to concerns which he had, before his relationship with the man ended, about that man’s association with other criminals. That raised a concern in Dr Roberts’ mind “about the stability of the environment into which Mr Thomas would be returning in the event that he returned to that relationship and its potential impact in terms of his risk of recidivism”.

110 During a recent interview with a member of staff of Corrective Services (NSW) who is currently supervising him, the defendant indicated that if an extended supervision order was made he would look to moving into men-only supported accommodation. He also said that he aimed to complete a traffic control course, and that he planned to consult with Centrelink about utilising his excavator and front end loader qualifications in a manner that was compatible with his receipt of the Disability Support Pension.

Gambling

111 In a letter which was written by St Vincent De Paul Aged Care & Community Services, dated 17 June 2008, in support of the defendant’s application for parole in 2008, reference was made to the defendant having experienced problems with gambling.

Non-compliance with court orders

112 As well as having constantly breaching the conditions of parole orders, the defendant has consistently and repeatedly breached the conditions of other court orders. He has, for example, breached the conditions of good behaviour bonds and of probation orders. He has failed on occasions to report to police whilst on bail and to keep appointments with officers of the Probation and Parole Service. He has also failed on occasions to appear in court to answer his bail and he has at least one conviction for escaping from lawful custody.

Section 9(3)(a) – the safety of the community

113 As I said earlier, ensuring the safety of the community is the primary object of the Act. All of the matters to which reference has been made are relevant to that issue but the following matters are worthy of repetition in the present context:

(i) the defendant’s very lengthy criminal history;

(ii) the defendant’s history of committing serious sexual offences over a extended period of time against both males and females ranging in age from 12 to adulthood and his seeming inability to alter his predatory behaviour over that period;

(iii) the circumstances of the defendant’s offending behaviour including the fact that at least some of the sexual offences suggest a measure of premeditation;

(iv) the defendant’s history of non-compliance with parole and other supervision orders;

(v) the assessment of the defendant as presenting a high risk of sexual reoffending if released into the community without supervision.

114 In the light of the material which has been placed before the court, I am satisfied that the requirements of s 9(2) have been satisfied. Nor are there any countervailing factors which would justify the court in refusing to make it. In my view the need to protect the community, as well as the need to facilitate the defendant’s rehabilitation, require that an extended supervision order be made upon the conditions which appear in the Schedule to the amended summons. I am fortified in that view by the fact, that the defendant does not oppose the making of the order. Nor is objection taken in respect of any of the proposed conditions which, as I have said, have been the subject of agreement between the parties.

Duration of the order

115 That leaves for consideration the issue of the duration of the order. As I said at the outset, the plaintiff has sought an order for five years, being the maximum period for which an order can be made under the Act.

116 Section 10 relevantly provides:

(1) An extended supervision order:

(a) commences when it is made, or when the offender’s current custody or supervision expires, whichever is the later, and

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

117 Section 13(1) provides that:

The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State of New South Wales or the offender.

118 Each of the court appointed psychiatrists was asked to express an opinion as to the “suitability of the length of the proposed extended supervision order, namely five years”. Dr Roberts expressed his opinion upon that issue in the following terms:

It is also my understanding that Orders can be extended on application to Court. It is my opinion that Mr Thomas will require a period of no less than two years of supervision to ensure an optimal process of reintegration into the community

It is my opinion that any conduct on Mr Thomas’s part indicative of escalating risk will be likely to manifest within the first two years of his release

119 Dr Lewin declined to express a view as to the duration of the order even when he was asked to provide a supplementary report about that specific issue.

120 The following extract appears in the joint report of Dr Lewin and Dr Roberts to which I referred earlier:

From the psychiatric perspective, what is the period during which offending by the defendant is most likely to reoccur.

When considering psychiatric expertise, there is abundant research evidence that indicates that the threat of a reimprisonment is a powerful motivating factor. Where there is a supervision order, it is reasonable to presume that such a motivation continues.

With the establishment of community contacts, relationships and networks of support, Mr Thomas is likely to appreciate that he has more to lose from re offending. The greater his integration into the community networks, etc, the more powerful this protective factor is likely to be. When considering the published research regarding alcohol dependence, the development of new, loving relationships is considered to be a powerful protective factor in assisting the individual to abstain from the use of alcohol. Clinical experience suggests that the same observations are relevant with regard to other substance related problems.

The development of close, interdependant, loving relationships is a matter which takes time to evolve. This is unlikely to be an important protective factor under a period of 12 months. A somewhat longer period would allow such relationships to become established.

Clinical experience also suggests that the longer the period of abstinence (alcohol, marijuana, etc) the more likely that abstinence is to be enduring. The capacity of Mr Thomas to reintegrate into a regular, unsupervised community living (network of friendships, work, other social supports) is a complex assessment which relies on multiple variables. The provision of a period of supervision will commit Mr Thomas to develop new habits of conduct, to develop coping skills and to practice coping with a range of ordinary adversities in a community setting. When considering the long-term life history he described, Mr Thomas has had little opportunity to develop these adult coping skills, either in adolescents or in his early adult years, because of previous adversities.

Mr Thomas is at greatest risk in the first few months after release

from custody and during the first few months following the withdrawal of all supervision. Clinical experience suggests that the best measure of likely future behaviour is his response to the progressive relaxation of conditions of his supervision, his acceptance of the orders initially and his management of the inevitable challenges which will arise over the next year or two

6. Is there a risk in maintaining supervision for a period significantly longer than indicated in question 5a (i.e. frustration and bleak loss of hope by the defendant)?

The emotions of frustration and loss of hope fall within the normal human range of experience. In the presence of a program of supervision such as that described above, there would be opportunity to support Mr Thomas in the event that he experienced such emotions in order to avert an inappropriate behavioural response. The presence of a supervision order permits early intervention in the event that such emotions arise.

121 The plaintiff emphasised that the legislation was protective, rather than punitive, in nature. It was also submitted that the combination of the defendant’s offending history, the entrenched nature of his anti-social character traits, his history of substance abuse and his dependency upon the opiate-based medication, oxycontin, created the need for an order of the duration which was sought, in order to ensure that the risk which the defendant posed to the safety of the community could be adequately contained. It was also submitted that a measure of flexibility had been built into the conditions which have been proposed which meant that the level of supervision of the defendant could be reduced over time depending upon how he responded to it. In other words, the defendant had an incentive to comply with the conditions of the order because compliance carried with it the prospect that they would be progressively relaxed over time.

122 The defendant’s position, when ultimately refined in oral submissions was that an order for a period of 3 years was, in the circumstances, more appropriate. Counsel for the defendant, whilst recognising that the legislation was not intended to be punitive nonetheless highlighted what was described as “the highly intrusive nature of orders [made] under the Act and the consequence of up to two years imprisonment for breach of any conditions”. The defendant also placed considerable reliance upon the opinion which was expressed by Dr Roberts.

123 It was also submitted that s 13 of the Act enables the plaintiff to make a further application should it become necessary to do so. That argument was developed in the following fashion in written submissions:

124 Counsel for the defendant also submitted that the defendant had made good progress in the two months since he had been released from custody. Although there is no evidence before the court to support that contention, it must nonetheless be recognised that there is nothing to suggest that any problems have been encountered in that respect. Counsel also referred to the fact that the defendant had reported that he had now abstained from consuming alcohol for a period of 5 years. I have already observed that there is a considerable tension between the various accounts which the defendant has provided about matters relating to his background. I am not disposed to uncritically accept assertions which he has made in the absence of supporting evidence.

125 In State of NSW v Quinn [2008] NSWSC 1080, Hidden J observed of that offender that his:

rehabilitation would be fostered by his seeing some light at the end of the tunnel. [para 10]

126 It was submitted that a similar approach was warranted in the present case. Moreover, it was submitted that an order of the duration which the plaintiff sought may prove to be counter-productive in that it may cause the defendant to lose hope, and then in a state of despair, resume his offending conduct.

127 Other than the matters which are identified in s 3, the Act otherwise provides no particular guidance as to how the length of the term is to be determined. In the final analysis I must make an evaluation, based on the evidence which has been adduced on this application, whilst bearing in mind that the primary object of the legislation is “to ensure the safety and protection of the community”.

128 It is axiomatic that the task of assessing the risk that a particular person may reoffend is fraught with difficulty. Even more hazardous is the task of predicting the duration of that risk. Nevertheless in my view it is not without significance that Dr Roberts, who has some experience in applications of the present kind, arrived at the opinion to which I referred earlier. I have also been assisted by the views which are expressed in the joint report. It is against that background that the other submissions which the defendant has advanced assume greater cogency than might otherwise have been the case. On the other hand, the number and range of challenges which confront the defendant, lead me to conclude that an order of greater duration than the one suggested by Dr Roberts is required. I have concluded that the order should be of four years duration.

Conclusion

129 Pursuant to s 9(1) of the Act, I order that, for a period of four years from today, the defendant be subject to an extended supervision order by complying with the conditions set out in the Schedule to the amended summons.

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SCHEDULE TO AMENDED SUMMONS:

SUPERVISION CONDITIONS

For the purpose of these conditions, the Departmental supervising officer is the person authorised from time to time by the Commissioner of Corrective Services to manage and supervise the defendant pursuant to the extended supervision order. The Department is the Department of Justice and Attorney General ("the Department"). Corrective Services NSW is a division of the Department. The Community Compliance Group (“the CCG”) and Probation and Parole are each part of Corrective Services NSW.

1 For the duration of the supervision order, the defendant must accept the supervision of the CCG for so long as the CCG is involved in the supervision of the defendant and, for any period that the supervision of the defendant is transferred from the CCG to Probation and Parole, the defendant must accept the supervision of Probation and Parole.
2 The defendant must report personally once a week to the Departmental supervising officer or as otherwise directed by that officer.
3 The defendant must comply with any reasonable direction given by the Departmental supervising officer or any other Departmental officer who may from time to time be allocated to the defendant's case.
4 The defendant must wear such electronic monitoring equipment as may from time to time be directed by the Departmental supervising officer and comply with all instructions given by a CCG officer in relation to the operation of such equipment, and must not tamper with or remove such equipment.
5 If directed by the Departmental supervising officer, the defendant must inform the Departmental supervising officer of his movements 48 hours in advance by providing a schedule in writing (or as otherwise directed by the Departmental supervising officer) and must obtain prior approval from the Departmental supervising officer for any proposed change.
6 Condition 5 does not apply if the defendant requires urgent medical attention and he is either unable to inform the Departmental supervising officer of his proposed movements in advance or is unable to obtain prior approval from the Departmental supervising officer for any proposed change 24 hours in advance.

7 For the duration of the extended supervising order the defendant must reside at such accommodation as is approved in advance by the Departmental supervising officer.
8 The defendant must accept visits at his approved accommodation, including visits without prior notice, by the Departmental supervising officer or any other Departmental officer who may from time to time be allocated to the defendant’s case.
9 If directed by his Departmental supervising officer, the defendant must be at his approved address between 9pm and 6am (or such other hours as may be specified) unless his presence at another place during those hours has been approved by his Departmental supervising officer.
10 The defendant must not leave New South Wales without the prior written permission of the Commissioner or his delegate.

11 The defendant may only enter into employment arranged or approved by the Departmental supervising officer and must not enter into or undertake employment unless it has been so arranged or approved.
12 If deemed necessary by the Departmental supervising officer, the defendant must make his employer aware of his offending history and that he is subject to an extended supervision order and of the terms of this order.

13 The defendant must not possess or consume any alcohol or illicit drugs or abuse prescription medication (including any alcohol-based products such as methylated spirits).
14 The defendant must submit to drug and alcohol testing as directed by the Departmental supervising officer.
15 The defendant must attend community based drug and alcohol programs as directed by the Departmental supervising officer.
16 The defendant must not attend licensed premises, including but not limited to hotels, bars, licensed clubs and racecourses without the prior approval of the Departmental supervising officer.

17 The defendant must not associate with persons who are specified by the Departmental supervising officer as persons with whom he must not associate.
18 Except with the permission of his Departmental supervising officer, the defendant must not approach or have any unsupervised contact with any persons under the age of 16 years.
19 Without limiting the generality of the previous condition, the defendant must not approach or have any contact with children under 16 years of age at any sporting facility, sporting venue or public swimming pool.
20 Should the defendant propose to enter into a sexual relationship with another person, he must notify the Departmental supervising officer at the earliest opportunity. The defendant must disclose his offence history to that other person if the Departmental supervising officer is satisfied that it is necessary or desirable in the interests of the safety of the other person, or persons in their custody, that they be aware of the defendant’s offence history, and directs the defendant to do so.

21 The defendant must comply with any direction made by the Departmental Supervising Officer regarding access to or use of the World Wide Web and the internet by him and without limitation the Departmental Supervising Officer may direct the defendant to use on any computer a parental lock or other device or software that may restrict access to or permit access only to certain websites.

22 The defendant must not change his name from Edward Reginald Thomas, use or be known by any other name without prior approval of the Departmental supervising officer.
23 The defendant must not, without the approval of the Departmental supervising officer, change his facial appearance, including facial hair or the colour of his hair and must not alter the length of his hair to the extent that he cannot be reasonably recognised.
24 If the defendant's proposed change of appearance is approved, he must allow himself to be photographed by or on behalf of the Departmental supervising officer.

25 If directed by his Departmental supervising officer, the defendant must accept such psychological intervention by psychologists employed by the Department as may be offered to him, including the maintenance program provided by the Forensic Psychology Services and must participate in all such rehabilitation treatment and programs as may be directed by the Departmental supervising officer.
26 The defendant must accept a comprehensive assessment (and further assessments from time to time) including medical examinations, pathological investigations, psychometric testing and radiological imaging to be conducted by the Community Forensic Mental Health Service (CFMHS) or the Area Mental Health Service (AMHS) (or Justice Health), to determine what treatment is required, in light of the defendant’s potential for sexual reoffending.
27 The defendant must accept psychological and psychiatric assessment and treatment as may be arranged by an AMHS in consultation with or by the CFMHS, including counselling and psychological therapy.
28 The defendant must disclose to his Departmental supervising officer the identity of any medical or mental health practitioner, including psychologists, whom he consults.

29 The defendant must consent to his general practitioner, any other medical practitioner, his treating psychologists or psychiatrists, the AMHS and CFMHS sharing information about him, including reports on his progress and information he has disclosed during treatment with each other and with the Departmental supervising officer and any other departmental officer directly involved in his supervision.
30 The defendant agrees to all sharing of information between the Departmental supervising officer, other officers of the Department whom the Departmental supervising officer considers it is necessary to inform, the defendant's employer (if any), CFMHS, any treating AMHS, the defendant's general practitioner and any treating psychologist or psychiatrist.
31 The defendant must attend a six monthly meeting with all agencies or parties in attendance if required by the Departmental supervising officer at which point the defendant’s management plan may be reviewed and adjusted if considered appropriate.

CITATION:	State of NSW v Thomas [2010] NSWSC 677
HEARING DATE(S):	21/06/2010, 22/06/2010
JUDGMENT DATE :	24 June 2010
JUDGMENT OF:	Buddin J
DECISION:	Pursuant to s 9(1) of the Act, I order that, for a period of four years from today, the defendant be subject to an extended supervision order by complying with the conditions set out in the Schedule to the amended summons.
CATCHWORDS:	Serious sex offender - application for extended supervision order - no opposition to making of order or conditions attached thereto - issue as to duration of order
LEGISLATION CITED:	Child Protection (Offenders Prohibition Orders) Act 2004 Child Protection (Offenders Registration) Act 2000 Crimes Act 1900 Crimes (Serious Sex Offenders) Act 2006
CATEGORY:	Principal judgment
CASES CITED:	Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 State of NSW v Quinn [2008] NSWSC 1080 State of New South Wales v Thomas [2010] NSWSC 314 Tillman v Attorney General for New South Wales (2007) 70 NSWLR 448
PARTIES:	The State of New South Wales (Plaintiff) Edward Reginald Thomas (Defendant)
FILE NUMBER(S):	SC 2010/85162
COUNSEL:	C Adamson SC/A Mitchelmore (Plaintiff) D Thiering (Defendant)
SOLICITORS:	IV Knight (Crown Solicitor) (Plaintiff) S O'Connor (Solicitor for Legal Aid) (Defendant)