State of New South Wales v Thomas [2011] NSWSC 307 | Case summary

Assessments as to the likelihood of the defendant committing a further serious sex offence: s 9(3)(c) 20I have before me on this application four reports dealing with statistical and other assessments as to the defendant's prospects of recidivism, specifically in relation to serious sex offences. 21In the preliminary judgment (at [28] - [35]) I set out a summary of the assessment made by Mr McElhone as follows: "[28] Mr McElhone carried out a risk assessment process with a view to assisting in the prediction of sexual recidivism for the defendant. Mr McElhone used the Static-99R instrument and in a range of scores from minus 3 to plus 12 rated the defendant with a score of 5. Such a score is said to have placed the defendant in the "medium-high risk category relative to other male sexual offenders". Mr McElhone reports that the rates of sexual recidivism for sexual offenders who had the same score as the defendant were between 11.4 per cent and 25.2 per cent over 5 years, and between 22.6 per cent and 35.5 per cent over 10 years. Individuals with such a score have an expected recidivism rate which is 2.23 times higher than the "typical" sexual offender. Mr McElhone noted, however, that an instrument such as Static-99R has certain limitations. It does not necessarily directly reflect the recidivism risk of an individual offender. [29] Mr McElhone also assessed certain "dynamic risk factors" that were present in the defendant's case. The first factor, intimacy deficits, is said to refer to the general capacity to make friends and feel close to others. Mr McElhone reported that there were noticeable changes in the defendant's ability to interact in a positive manner with others through his participation in CUBIT. The next factor, significant social influences, is said to be regarded as one of the most well-established predictors of criminal behaviour. It is reported that the defendant's social support network is currently limited to professional supports, such as those provided through Corrective Services. Through treatment, however, he did work on developing a more adaptable orientation to potential social support. [30] In terms of general self-regulation, that is an individual's ability to self-monitor and inhibit antisocial thoughts and behaviour, Mr McElhone reported that the defendant's history reflects significant problems in this area. However, there were reported changes in his thinking and emotional responses which seem to be associated with more adaptive reactions to interpersonal problems with people in authority. [31] Sexual self-regulation is a reference to an individual's ability to control their expressions of sexual impulses. Mr McElhone reported that the defendant's work in CUBIT had been important in the context of him learning to better control his sexual impulses. Mr McElhone wrote, "this has been reflected in his reported ability to challenge and reframe unhelpful thinking, his apparent ability to better manage emotional distress, and his reported ability to incorporate thinking about long-term consequences into his decision-making processes". [32] The next dynamic risk factor upon which Mr McElhone reported was cooperation with supervision, said to be whether or not the offender appears to be working with supervision or against it. Mr McElhone noted that the defendant had a long history of failing to comply with supervisory conditions. I referred to a number of examples of this in my earlier judgments. Mr McElhone reported that cooperation with supervision was focused on during the defendant's treatment. He reports that the defendant will need to continue to carefully monitor his thinking and his responses to staff supervising him in the community. He will need to communicate openly with support staff, such as his community based maintenance psychologist, to ensure that he is able to reflect on his attitudes and respond appropriately to the expectations of supervision. [33] In the next section of his report Mr McElhone addressed issues relating to the defendant's future management. In relation to "risk factors and warning signs", he reported that the defendant was able to identify a number of risk factors, internal warning signs, and external warning signs. It is said that the defendant demonstrated that he was able to recognise and effectively intervene to manage manifestations of these factors and warnings. [34] In terms of self-management, Mr McElhone reported that the defendant will need to continue to pay attention to his reactions to problematic situations, to challenge negative, unhelpful and unrealistic thinking, and to implement adaptive responses to these situations. [35] In concluding his report, Mr McElhone said that he had taken into consideration both static and dynamic risk factors and that he considered that the risk rating of "medium-high" on the Static-99R instrument accurately estimated the defendant's risk at this time. He recommended that the defendant participate in a community based maintenance program, and that he participate in Alcoholics Anonymous or similar alcohol and other drug programs to assist him with his goal to maintain abstinence from alcohol and illegal drugs." 22I also set out in that judgment (at [36] - [42]) a summary of Mr Sheehan's assessment: [36] Mr Sheehan noted that, at the time of his previous assessment of the defendant in September 2009, it was difficult to accurately gauge his true attitude towards his risk of sexual recidivism. This was contrasted with an interview with the defendant in November 2010 in which it appeared that the defendant had developed a greater understanding of his offending and the features that contributed to it. The defendant was able to identify that the main issues that he needed to be mindful of were his attitude towards women and his anger. He explained to Mr Sheehan that by maintaining a positive attitude towards women, self-monitoring his thoughts and behaviour, and practising consequential thinking, he could manage his risk and generally live a more adaptive life. [37] Similarly to Mr McElhone, Mr Sheehan reported that the notes and assessments of the defendant's participation in CUBIT indicated that the experience of treatment was positive for him. Mr Sheehan's review of the material indicated to him that the defendant attended treatment sessions as required, participated when expected, and completed treatment exercises when requested. He provided a written and verbal disclosure of his sexual offences which represented a significant departure from his previous inability to directly and openly discuss his offences. Significantly, however, Mr Sheehan reported: "Although it is important to draw attention to the positive behaviour exhibited by Mr Thomas during his participation in CUBIT, there is much work to be done in building on the successes made in CUBIT and transferring them to the context of community life". [38] Mr Sheehan reported that to best take advantage of the gains that the defendant had made in treatment, he should participate in a post-treatment maintenance program, such as the Community Based Maintenance Programme offered by Corrective Services NSW. [39] Mr Sheehan also used the Static-99R instrument in assessing the defendant's static risk factors and scored him at 4. Although this was slightly less than the scoring by Mr McElhone, it still placed the defendant in the "moderate-high" risk category relative to other male sexual offenders. [40] Mr Sheehan assessed the dynamic risk factors in the defendant's case in a similar manner to Mr McElhone. His conclusions were similar. In short they may be summarised by saying that whilst improvements through participation in CUBIT had been noted, there remains work to be done in a number of areas. Gains thought to be made in a custodial based therapeutic program might be regarded as promising. However whether the gains are real and can be further developed will not be known until Mr Thomas is tested by being back within the community. [41] Mr Sheehan concluded on the question of overall risk with the statement: "At this point, the overall totality of evidence suggests that Mr Thomas remains in the high risk category of sexual offending relative to other adult male sexual offenders". [42] In his conclusions and recommendations Mr Sheehan reported that the defendant's ability to manage himself and his interactions with those around him may indicate that he has an increased chance of responding positively to supervision in the community. He reported, "from a therapeutic and risk management prospective, now would be the optimal time to take the opportunity to transition Mr Thomas into the community." 23Dr Jeremy O'Dea interviewed the defendant on 21 March 2011. Dr O'Dea had previously prepared reports in respect of the defendant which are dated 10 July 2008, 2 October 2008 and 11 November 2009. In State of New South Wales v Thomas (Final) I reviewed the earlier reports by Dr O'Dea at [47] - [58]. I will not refer further in this judgment to that material but simply indicate that it is part of the material I have taken into account. What follows is derived from the report of 28 March 2011. 24Dr O'Dea reported that he did not observe a significant shift in the defendant's clinical presentation or risk profile between his earlier interviews in 2008 and 2009 and his most recent interview. He continued to consider that the defendant's primary psychiatric problems have been related to his personality that remained best understood as an antisocial personality disorder characterised by a history of repetitive antisocial behaviours from at least his early teenage years, with ongoing problems with limited remorse and insight into his history of sex offending. Dr O'Dea also noted that the defendant had a history of substance abuse disorder, including alcohol and cannabis abuse and dependence. This included cannabis use on his most recent release into the community in late 2008. Further, Dr O'Dea also noted a history of anxiety which was consistent with a psychiatric diagnosis of anxiety disorder, likely complicated by the defendant's history of substance abuse, his personality and his life circumstances. 25The defendant gave a history to Dr O'Dea which included that he experienced auditory hallucinations and claimed to have been diagnosed with paranoid schizophrenia. I gain the impression from the terms of his report that Dr O'Dea is somewhat doubtful about such a diagnosis but it is noted that the defendant claimed that he had been prescribed antipsychotic medication to which he had responded favourably. Dr O'Dea expressed the view that the defendant's "overall clinical presentation is not typical of a major psychotic illness such as schizophrenic illness". 26The defendant has a number of medical conditions to which I have referred in earlier judgments. Dr O'Dea did not consider that the issues related to the defendant's general medical condition and his risk of engaging in further sex offending behaviours had significantly altered since his reports in 2008 and 2009. Similarly, he did not consider that the defendant's "full clinical psychiatric risk assessment and attendant risk management considerations have substantially or significantly changed" since the earlier reports. 27Dr O'Dea noted that it was encouraging that the defendant had completed the CUBIT program, but cautioned against assuming that this would automatically be translated into better management by the defendant of his risk of engaging in further sex offending behaviours upon release into the community. It was Dr O'Dea's experience that it is often the case that inmates who have completed programs such as CUBIT acquire a greater vocabulary in this regard. Despite this, Dr O'Dea was of the view that there remains no good evidence that participation in such psychological programs alone significantly reduced the risk of participants engaging in further sex offending behaviours in the community in the long term. 28The experience of being released upon an extended supervision order and then being returned to custody for an extended period was regarded by Dr O'Dea as a possible signal to the defendant that future breaches would not be tolerated. This, coupled with his successful completion of the CUBIT program, may have enhanced his capacity to engage more successfully with supervisors and treatment providers in the community in the longer term. 29In the final analysis, Dr O'Dea considered that: "there remains a significant risk (that could be considered a high degree of probability) that Mr Thomas may commit a further serious sex offence in the community in the long term that should be actively managed by supervision. Except for the potential effects of the aging process on Mr Thomas' physical health and sexuality, further periods in custody are not likely to significantly reduce this risk on his subsequent release into the community". 30Dr O'Dea was invited to include in his report his views as to the appropriateness of the proposed conditions of an extended supervision order. He reported that they appear to him to encompass appropriate psychiatric risk management interventions for the defendant upon his release. Dr O'Dea added that it seemed to him to be appropriate that upon release, the defendant have the opportunity to access a suitably qualified and experienced forensic psychiatrist and forensic psychologist on a regular long term basis. The need for this was said to be in order for the defendant to continue to explore his sexuality in general and his sexual offending behaviour in particular, and also to consolidate upon any gains that had been made through participation in the CUBIT program. 31As to the use of testosterone lowering medication or other anti-libidinal medication, Dr O'Dea remained of the view he had expressed in his report of 10 July 2008. In short, that such medications should only be taken after careful consideration and consultation with an endocrinologist and cardiologist because of the potential risks such medications may present to the defendant's physical health. 32As to the proposed length of the order, Dr O'Dea noted that the defendant's current risk factors requiring specific management are likely to be longer term issues and of at least that duration. Dr O'Dea concluded his report with a suggestion that regular review of the defendant's general medical status and dynamic risk factors at 6 to 12 month intervals was likely to enable more adequate and appropriate interventions as time progressed. 33Professor Greenberg provided a report of 7 April 2011 following an examination of the defendant on 1 April 2011. Professor Greenberg had previously provided reports in relation to the defendant which are dated 7 July 2008, 2 October 2008 and 10 November 2009. I reviewed the opinions expressed in the earlier reports in State of New South Wales v Thomas (Final) at [34] - [46]. As with Dr O'Dea, I will not further review that material in this judgment but simply record that I have taken it into account. 34In his latest report, Professor Greenberg said that the defendant had told him that he found the CUBIT program helpful because it helped him to understand his thoughts and feelings. He claimed to have learnt that women were human beings and that they have rights. He expressed an acknowledgement that what he did to his victims was wrong. He claimed to have now learnt to handle depression and to pause and consider his options rather than act impulsively. 35Notwithstanding claims of that nature having been made by the defendant of his experience in the CUBIT program, Professor Greenberg's view was that the defendant's "insight remained poor with regard to his offending behaviour although he had made some gains in victim empathy and understanding limited aspects of his offending behaviour". 36Professor Greenberg remained of the view expressed in his earlier reports that the primary diagnosis of the defendant is that he has "a severe Antisocial Personality Disorder". He also reported diagnoses of Poly-Substance Abuse (historical) (Cannabis Abuse current) and Anxiety Disorder with panic attacks (query agoraphobia) and depression. As with Dr O'Dea, Professor Greenberg received a history from the defendant that included experiencing auditory halluciantions. However, the professor said that the defendant's reports of these were not consistent with a diagnosis of a functional illness such as schizophrenia or a biopolar disorder. 37Professor Greenberg noted in his report of 10 November 2009 that the defendant's revised Static 99 score had a total of 4 which placed him in the "moderate-high" risk category range relative to other sex offenders. He noted, however, that the defendant's risk of sexual re-offence relative to the general male population without previous sexual charges or convictions should be regarded as higher. It was noted that there were limitations in the revised Static 99 scale, but it was the professor's opinion that this scale was more accurate than clinical assessment alone. 38Professor Greenberg's report then moved to the topic of dynamic risk factors which are thought to relate to sexual recidivism but are amenable to change in individuals. He noted, however, that changing the dynamic risk factors may or may not have a positive effect on re-offending rates in individuals convicted of sexual offences. 39The defendant has the diagnosis of severe antisocial personality disorder and Professor Greenberg also referred to his lack of close interpersonal relationships. He expressed the view that these personality patterns are extremely difficult to change and will require long term therapeutic interventions over several years rather than several months. 40Social influences are another of the dynamic factors thought to be relevant to sexual recidivism. The defendant told the professor that he hoped to acquire new friends and join Alcoholics Anonymous, church and social groups. It did not appear that he had any specific plans as to how he would achieve the goal of finding new friends, which led Professor Greenberg to the view that changing social influences would be a challenging task for the defendant following his release into the community. 41General self-regulation has been an enduring problem for the defendant which was in keeping with the personality pattern of antisocial personality disorder. The defendant claimed that his main problem was impulsivity but that the CUBIT program had taught him to stop and take "a backward step" and then hopefully make the right decision. Professor Greenberg was of the view, however, that the defendant's problems with general self-regulation are part and parcel of his enduring and persistent pattern of maladaptive behaviours in keeping with his antisocial personality disorder. It was his view that such patterns of behaviour tend to be chronic and persistent and are extremely difficult to change. This was typified by the reported problems the defendant experienced under the extended supervision order, as well as his past offending history. Professor Greenberg was of the view that the limited gains the defendant had made within the CUBIT program "should be regarded with caution at this time". 42In regard to some specific acute dynamic risk factors which may impact upon future sexual recidivism, the defendant expressed claims to Professor Greenberg that he would abstain from alcohol and other illicit substances, he would avoid sexual contact with women, and that he would comply with the terms imposed under a supervision order. In respect of the latter, the defendant claimed that he had learnt his lesson. Professor Greenberg noted that similar claims had been made by the defendant in the past. Specifically it was noted that in a Probation and Parole Report of 16 August 1984 the defendant was reported to have been adamant that he had "finally learnt his lesson" and had also claimed that "no woman is worth making a gaol sentence for". 43It was Professor Greenberg's opinion that the defendant's risk of committing a further serious sex offence had not changed significantly since his previous report, even though there had been the completion of the CUBIT program and the defendant was now 18 months older. It was noted that the defendant had a gradually deteriorating physical health and a gradually deteriorating capacity to engage in sexual output with advancing age, but these factors would not, in the professor's view, preclude the defendant from committing a further sexual offence. It was his view that the defendant's primary motivating factor in his serious sex offending behaviour is likely a consequence of his severe antisocial personality disorder. 44Professor Greenberg acknowledged that the CUBIT program seems to follow standards of best psychological practice but he noted that there had been no rigorous randomized control studies undertaken to show that psychological treatments are effective in treating sex offenders. He also noted that persons with severe antisocial personality disorders are extremely difficult to treat. Nevertheless, he was of the view that there was some cause for optimism in that the defendant had made some reported limited gains in completing CUBIT, and this, coupled with the aging process and ill-health, were factors that may provide hope for his future rehabilitation and reintegration into the community. Having said that though, the professor's overall opinion had not significantly changed and it was his view that the defendant's prognosis remained guarded until such time as there is a pattern of adaptive behaviours. 45Professor Greenberg was of the opinion that the proposed duration of five years for an extended supervision order was not unreasonable given the severity of the defendant's antisocial personality disorder. Changes in his maladaptive patterns of behaviour were likely to be gradual. No lesser period of supervision would likely have significant impacts on his chronic maladaptive behaviours. Professor Greenberg also expressed the opinion that "it may take years of psychotherapeutic interventions which may or may not have any beneficial effect on the (defendant's) real risk". While there is a very gradual decreasing risk of re-offence with the ageing process and the defendant's declining physical health, he remained, in the professor' view, still at "an unacceptable risk of committing a further serious sex offence if he is not kept under supervision". 46Finally, like Dr O'Dea, Professor Greenberg was of the view that anti-libidinal medication was inappropriate for the defendant because of his various medical conditions. As to other conditions proposed by the State the Professor was in agreement that they were appropriate and desirable for the management and supervision of the defendant in the community. He supported the proposal to provide ongoing community based sex offender maintenance treatment and other supportive rehabilitation services to the defendant.

Conclusion 51Under s 9(1), the Court may determine an application for an extended supervision order by either making such an order or dismissing the application. The defendant has not opposed the making of an order, and has not disputed that it should be for a period of 5 years. Be that as it may, it remains for me to determine whether the various statutory criteria have been satisfied: Attorney General for the State of NSW v Hayter [2007] NSWSC 983 at [4]; State of New South Wales v Manners [2008] NSWSC 1242 at [4]. 52The question for determination is whether I am satisfied "to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if ... not kept under supervision": s 9(2). As I noted in the preliminary judgment, this is a new formulation of the test which was inserted in the Act by the Crimes (Serious Sex Offenders) Amendment Act 2010. The old formulation of the test was whether there was "a high degree of probability that the offender is likely to commit a further serious sex offence if ... not kept under supervision". 53Another amendment was the insertion of new sub-s (2A) in s 9 which provides that in determining whether a person poses an "unacceptable risk of committing a serious sex offence" the Court is not required to determine that such risk is "more likely than not". 54In considering these provisions the objects of the Act need to be borne in mind: 3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation. 55The need for a "high degree of probability" in s 9(2) remains unchanged. It has been held that it constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard: see, for example, Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 per Bell J at [27]; Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. 56The "unacceptable risk" formulation has not previously been considered in this Court. In the preliminary judgment I indicated a tentative view: [20] ... I would regard the test in s 9(2) as being satisfied if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made. 57Upon the final hearing, senior counsel for the plaintiff provided me with written submissions which contained an analysis of similar legislation in Queensland, Western Australia and Victoria which employ an "unacceptable risk" test. It was acknowledged, however, that there are difficulties in applying a construction of such a test that exists in different, albeit slightly, legislative contexts. 58In the end, I have concluded that the present is not such a case as calls for a detailed analysis of the new formulation. Giving the words their everyday meaning, in the context of the provision in which they appear, and having regard to the objects of the Act, it is plain on any view that there is a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if not kept under supervision. So much is apparent from the evidence to which I have referred above. 59It is for these reasons that I made the 5 year extended supervision order sought by the plaintiff.

State of New South Wales v Thomas

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