This is an application by the State of New South Wales made by an amended summons, filed today, for an order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 ("the Act") that the defendant, Thomas Shields, be subject to an Extended Supervision Order ("ESO") for a period of 2 years and 9 months from the date of the order and, further, that pursuant to s 11 of the Act he be directed for the period of the ESO to comply with the conditions set out in the schedule to that amended summons.
[2]
Should an ESO be Made?
In written submissions filed before the hearing, the defendant, by his counsel, indicates that he does not oppose the imposition of an ESO, although there were some conditions of the proposed ESO which he wished to contest.
In light of the defendant's attitude and having regard to all of the material which has been filed, I am well satisfied that this is a case in which it is appropriate to impose an ESO. I do not need to identify all of the material in the evidence which supports that need. However, I do note the following matters: first, that the statutory objects of the Act provide, as the primary object, for an ESO to be made so as to "ensure the safety and protection of the community". A further object is to encourage high risk sex offenders to undertake rehabilitation.
State of New South Wales v Shields [2022] NSWSC 1219 | Case summary | Zoe
In coming to the conclusion that an ESO is necessary, I need not determine that the risk of an offender committing a serious offence is more likely than not before determining whether there is an unacceptable risk of the person committing such an offence: see s 5D of the Act. And, in accordance with s 9(2) of the Act, I must keep in mind, when determining whether or not to make an ESO, that the safety of the community is the paramount consideration.
I note the following matters which are sufficient as a basis for the making of an ESO.
In a report dated 17 December 2021, Ms Cieplucha, senior psychologist with the Serious Offenders Assessment Unit Risk Management Program, addressed a range of psychological tests designed to measure, through an actuarial process, the assessment of the defendant's risks.
The defendant's risk of sexual reoffending was identified by using static risk factors (Actuarial Assessment - Sex Offending) Static-99R which indicate that the defendant's risk is well above average. On the dynamic risk factors, using the STABLE‑2007 Tool - the defendant was assessed as having a high density of criminogenic needs relative to other male sexual offenders and, when combined with the Static-99R test results, the defendant was assessed as being in the well above average risk level. When the defendant was assessed using the Risk of Sexual Violence Protocol, which is a structured professional judgment tool, the result suggested that the defendant fell into the moderate to elevated risk category for repeat sexual violence.
I note that the report of Ms Cieplucha concluded that it may be that the defendant could independently remain offence-free, but she said that the defendant's ability to manage independently and not reoffend was uncertain.
When the defendant was sentenced on 11 October 2019 in relation to the index offending giving rise to this application, Graham ADCJ said this:
"This was a prolonged bout of offending which involved two potential victims and was not, in its terms, a minor instance of any of those four offences. It was committed by a person who seems not to have any great degree of insight into what he was doing. There is no overt expression of remorse of contrition. The best that can be said is that his behaviour was, as he put it, reckless and stupid.
The circumstances as revealed by these offences, his history of offending and the findings of Dr Ellis would all suggest that he is not a person about whom it could be said that he has any low risk of reoffending. The Court should approach sentencing on the basis that there is a real risk that he would reoffend. The Crown submitted that he was a very real threat to the community. Presently, there is some element of truth in that submission, though I would not put it as highly as that."
The reference by Graham ADCJ to the findings of Dr Ellis is a reference to a report dated 24 August 2019 of Dr Andrew Ellis, a forensic psychiatrist. Dr Ellis diagnosed the defendant as having a substance use disorder and a borderline personality disorder. Dr Ellis noted that the defendant may also suffer from a mood or anxiety disorder that was currently being treated by a medication regime.
For the purpose of these proceedings, and pursuant to an order of the Court, the defendant was examined by two experts: one, a psychologist, Mr Patrick Sheahan; and the other, a psychiatrist, Dr Calum Smith. Both of these experts gave oral evidence as well. Mr Sheahan's opinion included the following:
"[The defendant's] overall risk of sexually reoffending is estimated to be at the high end of the risk spectrum relative to other men who have sexually offended, and his offence dynamic could well extend to a serious sex offence…"
Mr Sheahan noted that the defendant's previous offences:
"… have occurred against a background of emotional instability, personality disturbance, and substance abuse causing him to act impulsively in a bid to manage negative emotional states, being only focused on immediate relief or gratification. This has caused havoc in his broader life and is also part of the specific dynamic of his sex offences. He has completed an intensive residential sex offender treatment program in custody, but was unable to obtain release to parole prior to sentence expiry. He has achieved sustained remission from substance use, which is a favourable prognostic indicator with regard to his immediate risk."
Dr Smith diagnosed the defendant as having a borderline personality disorder and a complex post‑traumatic stress disorder ("PTSD"). He noted that this combined disorder was complex because of the way in which symptoms the defendant experienced arose. Dr Smith took into account his emotional lability and relationship turbulence. He also found that the defendant met the criteria for substance use disorder although he remarked that it was in remission. Dr Smith conducted a review of the various psychological tests and did his own review with a well‑established structured professional judgment tool. He concluded that the defendant's risk of the commission of a serious sex offence was above average.
These expert reports, together with all of the evidence which has been placed before the Court, satisfy me to a high degree of probability, as required by s 5B(d) of the Act, that the defendant poses an unacceptable risk of committing another serious sex offence if not kept under supervision pursuant to an ESO. For that reason, I regard it as appropriate to exercise my discretion to impose an ESO. Naturally, in making that determination, I have taken into account and considered each of the matters set out in s 9(3) of the Act and, in particular, I have had regard to the paramount consideration of the safety of the community.
[3]
Length of an ESO
Two matters remain outstanding to be considered. The first is whether the ESO should be imposed for the period of 2 years and 9 months which the plaintiff seeks, or for a shorter period of 2 years which is what the defendant accepts is a reasonable period.
Mr Sheahan, when giving evidence this morning, candidly conceded that determining the period for the imposition of an ESO in the case of this defendant over and above the minimum period of 2 years, which he regarded as necessary to achieve measurable outcomes on improvement of the chronic issues relevant to the defendant, is not a matter of science but, rather, is a matter of trying to determine, having regard to all of the evidence, what a reasonable period may be. Mr Sheahan expressed the view in his report that there may be some advantage to a shorter timeframe in order to engage the defendant's active participation in the supervision process. In his report, he said that a period of 3 years may also be sufficient to achieve a more enduring community adjustment.
The fact is, as it seems to me to be, that whether the ESO is imposed for 2 years or 3 years, it is impossible to be certain whether the shorter period is too short or the longer period is too long. A degree of estimation and balance must be engaged in. Any period which I fix can be extended on the application of the State if the defendant does not make the progress which it is predicted he should make. On the other hand, if the period of 3 years is fixed and that proves to be too long so that whilst the defendant is able to go about his ordinary life, he is nevertheless constrained by conditions imposed by this Court, then it would be inappropriate to require the defendant to apply to shorten the term of the order.
The period of an ESO should be based upon what is presently known to be appropriate to enable the defendant to demonstrate that he has taken up a life and lifestyle which does not involve any offending, thereby protecting the community from any risk of reoffending. I also note that an ESO with the sort of conditions which are to be imposed does in fact constrain the defendant as to how he might go about resuming his life as an ordinary citizen. In my view, that constraint should be no longer than is reasonably necessary to enable the relevant risk to dissipate. There is no single correct answer to this period issue in this case. However, weighing up all of the factors, and taking into account that the exercise of any power to make an ESO must keep the paramount consideration of the safety of the community in mind, in my view the appropriate period to impose is one of 2 years from the date that the order is made.
[4]
Application of Conditions
The parties are largely agreed on all of the conditions which are to be imposed. They are not agreed on Condition 5. In considering whether or not to impose a condition, it is necessary to set out briefly the relevant principles. Section 11 of the Act provides that an ESO may direct an offender to comply with such conditions as this Court considers appropriate. As Johnson J said in State of New South Wales v Ali [2010] NSWSC 1045 at [88]:
"… the imposition of conditions which are considered appropriate involves the striking of a balance between relevant considerations, so as to provide an outcome which is fit and proper. I bear in mind, as well, that the imposition of conditions under this Act creates a statutory offence if conditions are breached. The consequence of the ordering of a condition emphasises the need for a proper basis to be demonstrated for the condition to be made in the first place."
In State of New South Wales v Fisk [2013] NSWSC 364, Beech‑Jones J said at [99]:
"The imposition of 'appropriate' conditions under s 11 is governed by the overriding purpose of mitigating the identified risk of the high‑risk sex offender committing either serious sex offences, or at least offences of a sexual nature."
His Honour returned to that in a later decision of State of New South Wales v Burns [2014] NSWSC 1014 where at [59] he said:
"Usually it will be necessary for such a condition to be related to the mitigation of the unacceptable risk that led to the formation of the conclusion of the relevant offender as a high risk sex offender."
I emphasise what RA Hulme J said at [36]-[38] of his judgment in the State of New South Wales v Green (Final) [2013] NSWSC 1003, the effect of which is that any condition attaching to an ESO in respect of a serious sex offender must specifically address issues relevant to currently identified risk factors in relation to future offending, and be limited to addressing conduct regarding the risk of future serious sex offences and not criminal offending generally. I note that RA Hulme J also accepted a submission that conditions which are imposed are not to be unjustifiably onerous or simply punitive.
I bear these principles in mind in considering the arguments before me on the imposition of conditions.
The first such condition is Condition 5. The plaintiff seeks the following condition:
"The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment. …"
Whilst the defendant does not oppose that condition, given that he has been using the equipment for about 2½ months without incident, and given that he has a need to be able to reintegrate into society generally, the defendant submits that there should be added to that condition a limitation by reference to time for that condition. The defendant proposes 12 months from the date an Interim Supervision Order ("ISO") with such condition was imposed.
In my view, a limitation of the kind suggested by the defendant is appropriate. The fact is this: by a period of about one year from when he first is obliged to wear electronic monitoring equipment, it will be obvious whether the defendant can be relied upon to comply with such other conditions as are in existence. If he does not, then, subject to a finding that he has breached any condition of the ESO, it will be open to the relevant Departmental Supervising Officer ("DSO") to continue to require the use of electronic monitoring equipment.
Accordingly, I am satisfied that Condition 5 should be imposed, but it should be in the following terms:
"5. The defendant must wear electronic monitoring equipment as directed by DSO and must not tamper with or remove the equipment. The defendant is not required to continue to wear such equipment as and from 24 April 2023 unless prior to that time, the defendant has been found to have breached any condition of this Extended Supervision Order."
The next conditions which are subject to debate are those dealing with whether the defendant ought be required to submit a schedule of his movements to a DSO upon direction, together with consequential conditions about changes and deviations from that schedule.
Originally, the State sought conditions that the defendant was required to provide a weekly plan of all movements for approval. In his decision imposing an ISO, Wright J, for the reasons which he described, and which are recorded in State of New South Wales v Shields (Preliminary) [2022] NSWSC 469 at [18]-[19], imposed a modified condition that required the defendant to provide a weekly plan of appointments and activities. The plaintiff now seeks the imposition for the entirety of the period of the ESO of the conditions determined by Wright J.
In my view, such conditions are, with further modification, appropriate to be included as a condition of an ESO. I am dealing with a longer period than that dealt with by Wright J, and I cannot be satisfied at the moment that a weekly plan of the defendant's activities would address any of the relevant risks of offending. I am, however, satisfied that it is appropriate for the defendant to provide details of his appointments with medical, psychiatric, psychological or other health providers to the departmental supervising officer so that supervision can occur with respect to those appointments.
I decline to order Conditions 6 to 8 as sought by the plaintiff in its Amended Summons. I will, however, impose the following conditions:
"SCHEDULE OF APPOINTMENTS
6. If directed, the defendant must provide a weekly schedule of appointments with any medical, psychiatric, psychological or other health provider. This is to be provided three days before it is due to start.
7. If the defendant wishes to change any appointment, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period.
8. The defendant must attend his appointments in his weekly schedule, except in an emergency."
In considering all of the conditions to be imposed, whilst I note that the balance of conditions are consented to, I am not satisfied that the terms in which Condition 15 are expressed are at all appropriate.
Condition 15, as expressed, requires the defendant to surrender any passport held by him to the Commissioner of Corrective Services. So expressed, it does not leave any flexibility on that question. It seems to me to be contrary to appropriate practice to require a defendant, the subject of an ESO, to attend upon the Commissioner for Corrective Services to surrender his/her passport. Accordingly, I will not impose Condition 15 in the specific terms which are set out, but I will impose such a condition modified in this way so that it reads:
"The defendant must surrender any current passport held by him to a DSO within 14 days of the making of this order and must not be in possession of any current passport and must not attempt to apply for any new passport or other travel document."
[5]
Orders
For these reasons and subject to the amendments to the conditions which I have announced, I make the following orders:
1. Order pursuant to s 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to an Extended Supervision Order for a period of 2 years from 5 July 2022.
2. Order pursuant to s 11 the Crimes (High Risk Offenders) Act 2006 that the defendant for the period of the Extended Supervision Order is to comply with the conditions set out in the Schedule to this order.
3. Order that access to the Supreme Court's file for any document shall not be granted to a non-party without the leave of a judge of the Court and without the parties being notified of such application so as to allow them an opportunity to be heard in relation to it.
[6]
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Decision last updated: 14 September 2022