State of New South Wales v Thomas

State of New South Wales v Thomas - [2022] NSWSC 1338 - NSWSC 2022 case summary — Zoe

[4]

The legislative scheme and principles

The primary object of the Act is stated in s 3(1): The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.
A secondary object of the Act is to encourage rehabilitation of offenders. Obviously the safety of teenage children, the targets of Mr Thomas's offending, is an essential focus of the orders the Court makes and the conditions imposed.
At a final hearing for an ESO, the Court must first determine whether it is satisfied to a high degree of probability that Mr Thomas poses an unacceptable risk of committing another serious (sexual) offence if not kept under supervision under the order: s 5B(d).
The making of a ESO requires a state of satisfaction "to a high degree of probability". This indicates a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] per Mason P, Giles and Hodgson JJA.
The expression "unacceptable risk" is to be understood according to its everyday meaning in the context of ss 5B(d) and 5C(d), and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn") [58] per Beazley P.
The right of an offender to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an "unacceptable risk" (at [44] per Beazley P in Lynn), however consideration of an offender's circumstances, including the offender's interest in liberty and privacy, may influence the ultimate exercise of discretion as to whether or not to make an order: Lynn at [131] per Basten JA and at [149] per Gleeson JA.
In State of New South Wales v Simcock (Final) [2016] NSWSC 1805, Wilson J observed at [71] that "unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate"; see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15].
Of relevance and concern in this case is the fact that Mr Thomas has engaged in repeated and opportunistic long term sexual offending against vulnerable teenage boys and it is well known that sexual abuse of children often causes life-long harm to those children.

[6]

Criminal history, pattern of offending and views of the sentencing court at the time of sentencing

I adopt the background and summary of the offending history (which included the Index offending) set out by Rothman J in State of New South Wales v Thomas (Preliminary) [2022] NSWSC 917 at [4]-[14]: "[4] The defendant, Mr Thomas, is 75 years of age. He is one of five children and grew up on a farm in Tumbarumba in the Snowy Mountains of New South Wales. [5] The defendant was described as having a moderately supportive and stable family upbringing, despite his father's problematic drinking problems (although he did not appear to be violent or abusive) and the defendant experienced some trauma relating to finding the body of someone who had committed suicide, when the defendant was 12 years of age. [6] The defendant experienced sexual abuse by a priest in a boarding school as a teenager, which the defendant believes contributed to his own offending. The defendant has since utilised sex as a coping mechanism. The defendant experienced significant shame about his homosexuality, which was, during the defendant's young life, illegal. [7] The defendant began to drink excessively and engaged in frequent, impersonal and clandestine sexual activity. The defendant has a history of abusing alcohol, which contributed to some of his earlier offending, although the difficulties with alcohol seem to have dissipated in the recent past. The defendant was introduced to a group of men who condoned his activity and provided access to boys for sexual activity. [8] The defendant has been convicted on five occasions of sexual offences against 11 male teenage victims, from 1975 to 2013. Each of the offences has similar defining characteristics, namely that the offences were "impulsive and opportunistic", and each victim was a teenage boy - many of whom were socially disadvantaged - who were groomed by the defendant prior to the offences, and often times paid by the defendant (or given gifts) for the sexual acts. [9] As a result of his offending, the defendant has been in custody for lengthy periods since 1976, including for a continuous period of 20 years. The defendant was released on parole for the index offences, to which I will shortly refer, on 31 May 2022. The current parole period and conditions expire on 9 July 2022. Index offences [10] In 2014, the defendant pleaded guilty to four offences (and the sentence took into account six additional offences on a Form 1), which concerned two separate incidents of sexual assault against two teenage boys, aged 14 and 15 respectively. The index offending occurred between May and June 2013, when the defendant was 66 years old. The offending included sexual acts and sexual touching, as well as taking pornographic photos of the boys. [11] At the time of the offending, the defendant had previously completed the CUBIT and custodial management programs; was not subject to any conditions of parole or a supervision order; had participated in a community maintenance program; and, was in a stable de facto relationship with a 29-year-old man. [12] The defendant was sentenced for the index offences on 14 August 2015, by Judge Norrish QC DCJ, to a total term of imprisonment of 9 years, expiring 9 July 2022, with a non-parole period of 6 years. The defendant was first eligible for parole on 9 July 2019, but was only released, as earlier stated, on 31 May 2022 as a result of the defendant making a "manifest injustice" application to the State Parole Authority. Previous offending [13] The defendant's history of offending includes: (a) One count of indecent assault, committed in June 1975, to which he pleaded guilty and was sentenced to a 3-year good behaviour bond; (b) One count of indecent assault, committed in May 1976, to which he pleaded guilty and was sentenced to 12 months imprisonment; (c) Five counts of homosexual intercourse with a person aged between 10 and 18 years of age, committed in 1987, to which the defendant pleaded guilty. He was sentenced for these offences in August 1988 which sentence expired in June 1996. Contemporaneously, the defendant pleaded guilty to 9 robbery and firearm-related offences for which he was sentenced to approximately 15 years, which sentence expired in February 2005; (d) Ten counts of historical sexual offences (of which another 16 counts were taken into consideration on a Form 1) committed between 1978 and 1986, to which the defendant also pleaded guilty, in 1998. The defendant was ultimately re-sentenced for these offences by the Court of Criminal Appeal to a total effective sentence of 12 years' imprisonment. [14] The defendant has been charged with additional sexual offences that did not lead to conviction and he has admitted to other sexual offences for which he has not been charged."

[8]

(i) Dr Youssef

Dr Youssef interviewed Mr Thomas on 8 August 2022. She diagnosed him as suffering from Other Specified Paraphilic Disorder, specifically Hebephilia (and Ephebophilia) (non-excusive type, sexually attracted to males). A hebephilic sexual interest is considered a lifelong condition, although it can include other elements that may change over time, with or without intervention, such as subjective distress, psychosocial impairment and/or the propensity to act out sexually with adolescents.
Mr Thomas told Dr Youssef that he wishes to relocate to Nepal to live with his former partner Bijay, and Bijay's wife and their young male children. He said that one of the reasons he was drawn to Nepal was because of the youthful appearance of the men. He also said that he wanted to "go around and interview refugees from Nepal" in Australian and write their stories.
Based on the information collected during interview, file review and risk assessments, Dr Youssef found that Mr Thomas is at Well Above Average Risk for sexual recidivism relative to other male sexual offenders. He has very few protective factors. Particularly salient dynamic risk factors identified by Dr Youssef are: 1. limited insight into his risk factors 2. deficits in general self-regulation (e.g., poor coping skills, negative emotionality, poor problem-solving) 3. deficits in sexual self-regulation (e.g., sex as coping, sexual preoccupation and deviant sexual interests) 4. intimacy deficits, demonstrated by difficulties in relationships 5. lack of prosocial supports 6. offence-supportive attitudes 7. limited insight regarding internal processes (i.e., thoughts, emotions, lack of self-efficacy and agency).
Dr Youssef stated that should Mr Thomas sexually reoffend, it is likely to be relatively opportunistic, with the victim being someone he has recently become acquainted with, either by a chance meeting in public, or via another adolescent or associate. It may be planned or organised by another associate. He is likely to take the younger person home with him, first purchasing or promising to purchase items, such as clothing, cigarettes, food, or toys or offering money. There may be a single victim or more than one. The victim would likely be an adolescent male between the ages of 12 to 16. They may be vulnerable by way of being homeless, in a refuge or foster care. The offence is likely to be intrusive in nature (e.g., sexual touching, sexual intercourse - anal and/or oral) and may recur with the same victim over a period of time. He is unlikely to use force or violence but will likely use the purchase of items or money to further gain victim compliance. He may offer for the victim(s) to stay with him. He may offend either on his own or in the company of another adult who would also engage in sexual offending behaviour.

[9]

(ii) Dr Smith

Dr Smith diagnosed Mr Thomas as having Complex Trauma as the victim of childhood sexual abuse and that he described an experience that is objectively traumatising. At interview he described what sounded like convincing post traumatic symptoms such as flashbacks. These symptoms may be ameliorated by medications. Dr Smith also diagnosed antisocial personality disorder, other Specified Paraphilic Disorder namely Hebephilia, and substance abuse disorder in remission.
Dr Smith thought there may be cognitive impairment and that Mr Thomas should be assessed for that.
Dr Smith stated that the diagnosis that most affects Mr Thomas's risk is the diagnosis of hebephilia - he is sexually attracted to pubescent and teenage boys. This is the primary driver of risk, but it is the interactions of various aspects that present the risk. He has a primary sexual drive toward boys of that age. His hypersexuality makes this drive stronger. Past substance abuse likely made him more impulsive. His apparently inherent anti-sociality makes rule breaking not such an issue, and means that he spends his time with antisocial peers, and has little motivation to develop healthy age-appropriate relationships. Trying to develop age-appropriate healthy relationships would be more difficult due to his offending history.
Dr Smith stated that pharmacological treatment may assist to manage his conditions - anti-depressants for his post-traumatic stress and anti-social personality disorder and anti-androgen treatment for his paraphilic disorder. While psychological counselling should continue, it is unclear how beneficial it will be, and individual counselling may be more appropriate.
Dr Smith stated that the likely manner of any re-offending would be similar to what has happened before, i.e. he would identify and engage a vulnerable boy between the ages of 12 to 15, whom he would groom by gift-giving (or even provision of fundamental needs such as food and shelter) for sexual activity. This would likely start with non-penetrative aspects such as photo taking, and then transition to penetrative sex.
Dr Smith offered the opinion that there may be some degree to which Mr Thomas's lower sex drive owing to his advanced age may reduce his risk of reoffending, however it is still possible that he would be driven to offend against boys of that age range. Given that his mechanism of recruitment is psychological grooming, rather than physical threats or violence, this aspect of his offending is not encumbered by his age. There remains little or no evidence that he understands the inherent "wrongness" of these acts, or at least is able to engage that level of cognitive thought when engaging in criminal acts.
Dr Smith concluded that Mr Thomas presents a risk of committing a serious sex offence as defined in the Act because of the combination of the following factors: he has committed serious offences when in the community whilst being under supervision, he has longstanding engagement with the criminal justice system prior to this and has re-offended despite this, he belongs to a cohort (those whose motivation is deviant sexual arousal) and so he represents a high risk of future offending. Other previous risk assessments have come to the same conclusion.
Dr Smith also concluded that there is little to suggest that his risk has significantly ameliorated. His engagement with psychological work has been mediocre, and generally there is nothing in the materials or at interview to suggest a reduced risk from previous assessments due to some sort of psychological change. He is not undertaking any pharmacological treatment such as anti-libidinal medication.

[10]

Reports and assessments of other psychologists and/or psychiatrists or medical practitioners as to the likelihood of the defendant committing a further serious offence; reports of psychologists or others applying statistical or other risk assessments regarding persons with histories and characteristics similar to the offender: s 9(3) and 9(3)(d)

Ms Sarah Wright, Psychologist, interviewed Mr Thomas for a five hour period over three sessions in November 2021. She refers to having taken into account a large volume of material relating to Mr Thomas's history of sexual offending, treatment in sex offender programs and other psychological assessments.
At the time of her assessment, Mr Thomas was in custody and participating in the High Intensity Sex Offenders Program (HISOP). This was the second sex offending treatment program in which he has participated in custody, having previously completed the Custody Based Intensive Treatment Program for sex offenders (CUBIT) during a prior period of custody and a maintenance program in custody and in the community following his release. The Index offences were committed after he had completed the CUBIT program.
Ms Wright noted that Mr Thomas tended to minimise his sexual offending by portraying his young victims as willing sexual participants who benefited financially from the sexual activity.
Ms Wright concluded that Mr Thomas fell within the Well Above Average risk for sexual reoffending. In her assessment of his risk for committing further sexual offences, Ms Wright identified the presence of the following dynamic risk factors: 1. His long history of sexual violence; 2. Psychological coercion in sexual violence; 3. Sexual deviance and attitudes that support or condone sexual violence; 4. Sexual preoccupation and using sex to cope; 5. Problems resulting from child abuse; 6. Problems with relationships; 7. Emotional identification with children; 8. Impulsivity, problems with planning and problem solving; 9. Negative emotionality; and 10. Problems with supervision.
Ms Wright characterised the sexual offending as chronic. He has been convicted on five occasions against eleven victims for offences that took place on dates between 1974 and 2013. He was also charged with other sexual offences that did not lead to conviction, and has admitted to other sexual offences for which he has not been charged. There has been little diversity in his sexual offending - almost all of his victims were vulnerable young males whom he groomed. Some of the offending involved physical coercion.
The sexual offences follow a similar pattern. In Ms Wright's opinion the most likely scenario for further sexual offending would be committing a contact sexual offence against an adolescent boy. His offending would be driven by his deviant sexual interests, desire for sexual gratification, particularly if he was sexually preoccupied and/or was in the pursuit of feelings of power and control. The victim would likely be a socially vulnerable boy. His sexual violence would likely include masturbation and penetrative sexual activity. He may find his victim opportunistically or may seek out opportunities to make contact with vulnerable boys. He would likely seek to groom his victim and would justify his behaviour as being mutually beneficial. The sexual offending may be limited to one occasion or ongoing.
Alternatively, his sexual offending may involve coercive non-consensual sex with a young and vulnerable teenager or adult man. Coercion may be physical or psychological.
Certain factors would be indicative of an increased or acute risk of sexual offending such as a return to alcohol abuse (although this was not a factor in the Index offending), sexual preoccupation, a change in social supports, particularly if it involved reacquaintance with those that condone child sex offences, access to potential victims, emotional collapse or the rejection of supervision.
Ms Wright used the Static-99R and STABLE-2007 as a basis for her assessment that Mr Thomas was in the Well Above Average Risk Category relative to other male sex offenders. A further assessment of his dynamic risk factors was made using RSVP V2. That assessment suggests that he falls in the Moderate/Elevated risk category for repeat sexual violence. The main risk factors identified from that assessment were chronicity of sexual violence, psychological coercion in sexual violence, attitudes that support or condone sexual violence, problems resulting from child abuse, sexual deviance, problems with relationships, problems with planning and problems with supervision.
Dr Youssef also conducted statistical assessments using Static-99R, STABLE 2007 and RSVP V2 and came to similar conclusions as Ms Wright as to the risk of re-offending presented by Mr Thomas.

[12]

Treatment and rehabilitation programs offered in custody and the defendant's participation in those: s 9(3)(e)

Mr Thomas participated in the CUBIT program between September 2004 and August 2005. His Final Treatment Report from that program concluded that overall he had made some positive treatment gains and had begun to take responsibility for the majority of his sexual offending. He could identify how he had groomed the victims and how his association with other people who committed sexual offences against children provided access to children and normalised his behaviour. The report concluded however that "considerable work was required" by way of maintenance program to address outstanding treatment issues and to make any sustained modification of the positive changes he had made. It noted absence of victim empathy, an inability to recognise high risk situations and that he needed to develop plans to minimise the risk of reoffending. Ongoing treatment was required in relation to sexual fantasies about children, distortions about feeling more comfortable around children, entitlement distortions, externalisation of responsibility distortions and revenge type fantasies.
Following the CUBIT program, Mr Thomas participated in a custody based maintenance program from 2006 to 2009. While his earliest date for parole was 16 December 2006, he was not granted parole then so that he could complete the CUBIT maintenance program in custody. Parole was refused again in November 2007, in part so that he could continue the custodial based CUBIT maintenance program. During his CUBIT maintenance program period in custody, Mr Thomas developed a consensual sexual relationship with a vulnerable 19 year old prisoner to whom he was giving money. That behaviour was a further factor in the decision not to release him to parole. He was noted to have an inconsistent focus on treatment goals and his relationship with the 19 year old inmate was problematic because it was reminiscent of his offending behaviour.
After two years in the maintenance program Mr Thomas was considered to have made all of the treatment progress that he could, although his continued association with young inmates was a noted concern. Parole was eventually granted on 20 March 2009.
Upon his release from custody on 24 March 2009, Mr Thomas participated in a community based maintenance program until October 2010 when he was discharged after an assessment was made that he had "gained all he needs from the maintenance program". He offended again with the two teenagers in 2013 in much the same way as his earlier offending and was returned to custody.
The HISOP program recommenced on 23 March 2021. He was refused parole so that he could complete the program. He completed the program on 29 April 2022. Mr Thomas told Ms Wright on interview that he was "more meaningfully engaged" in the program this time, but the Treatment Reports suggests his participation was "superficial". He demonstrated little insight into the causes of his offending and had difficulty developing plans to manage his risk factors. Mr Thomas actually told Dr Youssef that he was "damaged" by HISOP. Both Dr Youseff and Dr Smith are of the view that Mr Thomas appears to have obtained little insight into his risk factors, despite his participation in intensive treatment.
Mr Thomas also completed the Real Understanding of Self-Help Program (RUSH) on 30 June 2021. Noted to be a quiet participant, it was concluded that he had a sound understanding of the skills taught in the program.
Alcohol related programs were completed in custody in 1998 and 2006.

[14]

Pattern of offending and views of Sentencing Court: s 9(3)(h)

There is a clear pattern of offending prior to the Index offences.
On 4 August 1998 Mr Thomas was convicted and sentenced for 5 counts of homosexual intercourse with a person between 10 and 18 years of age that took place over a 2 week period in late February 1987. The victim "V3", was a 12 year old boy who had run away from home. Mr Thomas befriended him, bought him some clothes and let him stay in his house where Mr Thomas was living with another young man he described as his son. Other young boys were frequent visitors to the house. The victim slept in Mr Thomas's bed and on five occasions on five separate days he had penile/anal intercourse with the child. Mr Thomas gave him money, took him out for meals and to a pinball parlour. Some of the sexual offending involved participation of another adult male who was also convicted of intercourse with V3.
At the same time Mr Thomas was sentenced for the above offences, he was sentenced for five armed robbery offences that occurred between July 1988 and March 1989. He pleaded guilty to each of those charges and another four offences (break, enter and steal, firearm possession and assault).
In 1998 Mr Thomas also pleaded guilty to and was sentenced for ten other sexual offences against six other children, with another 16 charges against those children being taken into account on a Form 1. The charges were historical, having taken place over various periods between 1978 and 1986. Nine of the counts to which he entered pleas of guilty involved penetrative sexual activity. The children were boys aged between 10 and 15 years. Multiple offences were committed by Mr Thomas against three of the boys and these were taken into account as representative offences. At the time Mr Thomas was charged with and pleaded guilty to these offences, he was serving a custodial sentence for the armed robberies and sexual offences set out in [56] and [57].
In upholding a manifest inadequacy appeal from the sentences given by Horler QC ADCJ, the NSW Court of Criminal Appeal accepted that the sentencing judge was correct to characterise the offending as premeditated and pre-planned, with Mr Thomas identifying and targeting vulnerable male children from troubled homes who might be likely to exchange sexual activity for gifts and displays of affection. The offences were part of a systemic pattern over an 8 year period. When Mr Thomas participated in an ERISP and admitted to the sexual activity, he sought to minimise his own predatory conduct and denied that the victims were unwilling participants.
The facts of the offending for which he was sentenced in 1998 are dispiritingly similar to other offending by Mr Thomas. The victim "V13" met Mr Thomas in 1978 when he was about 10 or 11 years old and riding his bike. Mr Thomas offered him some food and took him to the shop and then to his work where he took hold of V13's hand to touch Mr Thomas's penis and then performed fellatio on V13. Mr Thomas gave V13 $10 and they arranged to meet the following weekend. Sometime later Mr Thomas had anal intercourse with V13. Between 1978 and 1986 there were numerous further instances of sexual activity involving masturbation and oral and anal intercourse until V13 was 16 years old. Mr Thomas gave V13 money following many of the assaults.
Another victim was V14. V14 first met Mr Thomas in 1981 when he was 9 years old and riding his mini bike. At the time he had been deemed an "uncontrollable child" and was living with his grandmother. Mr Thomas's offending against him commenced with touching V14's penis and quickly developed into mutual masturbation and oral sex and about a year later anal intercourse occurred. By that time V14 was living with Mr Thomas, and did so for about four years. The sexual offences were committed over a 6 week period.
V15 was introduced to Mr Thomas by another paedophile in 1981 when V15 was 13 years old. On their first meeting, V15 was asked to fellate Mr Thomas and Mr Thomas digitally anally penetrated him, and then had penile/anal intercourse with V15. Their association continued for about three years, with Mr Thomas supplying V15 with cannabis, alcohol, food and board. The sexual offences were committed over a 12 month period between 1981 to 1982.
A further victim, V16, was introduced to Mr Thomas by another paedophile in 1983 when he was 11 years old. V16 began to live with Mr Thomas shortly afterwards, and Mr Thomas was later appointed his guardian. While V16 was living with Mr Thomas there were numerous instances of sexual activity between them, including anal intercourse, indecent assault and indecent acts.
V11 was introduced to Mr Thomas by another paedophile in 1984 when he was 12 or 13 years old. Numerous acts of masturbation and oral sex occurred over the next two to three years. When V11 was 15 years old, Mr Thomas had anal intercourse with him without V11's consent. The offences were committed between 1984 and 1986.
V12 met Mr Thomas through other victims in 1984 when he was 12 years old. Mr Thomas offered to let V12 drive his car. V12 sat on his lap and he touched V12's penis on the outside of his clothing.
For all of this offending Mr Thomas was ultimately sentenced to 12 years imprisonment with a non-parole period of 8 years. He was not released to parole until March 2009 so had a relatively brief period on parole prior to the Index offending.
Mr Thomas was also convicted of indecent assault on a male on 28 May 1976. He pleaded guilty in the Local Court and was sentenced by Boulton DCJ to 12 months imprisonment with a 6 month non-parole period. (He was not released on parole because at the time he was eligible for parole there was an outstanding charge). The victim, V17, was 12 years old at the time. He met Mr Thomas when he was fishing and camping at Bobbin Head reserve with some other boys. Mr Thomas was there with the son of a friend. During the night, V17's's older brother asked Mr Thomas if V17 could sleep in the car as he was cold. Mr Thomas agreed and V17 fell asleep in the back seat of the car. While V17 was asleep Mr Thomas put his hand down the boy's shorts and underpants and touched his penis. V17 woke up, screamed and ran to where the other boys were camping.
Mr Thomas was also convicted of the indecent assault of a male on 20 June 1975. V18 was 14 years old at the time. On 9 May 1974, V18 visited the house where Mr Thomas was living. While there Mr Thomas held him down on the ground and performed fellatio on V18. He tried to force V18's hand onto his penis but V18 resisted. Mr Thomas rolled V18 over onto his stomach and attempted to have anal intercourse with him, however V18 was able to get away and shortly afterwards left the house. Later that evening V18 returned to the house with some other boys and Mr Thomas took them into the city before driving them home.

[17]

Should an ESO be made?

Pursuant to s 9(1) of the Act, the Court may determine an application for an ESO by making an ESO or dismissing the application. The Court therefore retains a residual discretion not to make an ESO, even in circumstances where the statutory preconditions are made out. In determining whether or not to make an order, the safety of the community must be the Court's paramount consideration: s 9(2).
In determining whether or not to make an order, the Court must also have regard to the matters set out in s 9(3) of the Act, together with any other matter it considers relevant.
The question as to whether or not to impose an ESO can be a complex one, involving as it does, a weighing and balancing of risk and unknowns, against incursions into the liberty of a person who has already served his or her sentence(s) for prior offending.
This was aptly described by Gleeson JA in Lynn at [149]: "[149] The interests of the offender in liberty and privacy are to be taken into account in the exercise of the court's discretionary power under s 9 of the Act to either make an extended supervision order, or dismiss the application for such an order. Although not explicit in the Act, conceptually the exercise of the discretionary power can be viewed, as Basten JA has suggested, as involving an intermediate stage of considering the appropriate conditions which might be imposed as part of an extended supervision order, before considering whether such an order is otherwise appropriate. I agree with Basten JA that consideration of the possible intrusions on the offender's liberty and privacy are appropriately taken into account at that intermediate and final stage of exercise of the discretionary power. Contrary to the appellant's submissions in the present case, there is nothing inherently artificial in separating the adverse consequences for him and dealing with them only after the threshold assessment of unacceptable risk has been made."
I have decided that an ESO should be made. I entirely accept Ms Gallagher's persuasive written submissions on this question. It was submitted, correctly, that the evidence establishes the following concerns: 1. Mr Thomas has a lengthy history of sexual offences against children that commenced when he was 29 years old and continued until he was 66 years old. He has committed sexual offences against 11 victims aged between 11 and 15 years. Most of his victims appear to have been vulnerable boys whom he groomed for sexual activity. 2. The Index offences are serious examples of sexual offending against children, involving penetrative sexual activity of two vulnerable boys who were groomed by Mr Thomas. 3. The Index offences were committed about two years after Mr Thomas had completed four and a half years of targeted treatment for sex offending. Whilst he was in custody prior to the Index offences he completed intensive treatment (CUBIT) for a period of about 12 months, with a further 2 years of maintenance treatment whilst in custody and another 18 months of maintenance treatment with FPS whilst in the community. Even after receiving targeted, lengthy treatment and appearing to have gained all he could from treatment, within about two and a half years Mr Thomas was watching a great deal of pornography involving young looking adult men, was in possession of child abuse material and had committed the sexual offences against the two young victims of the Index offences. 4. The Index offences were committed whilst Mr Thomas was subject to the conditions of an order under the Child Protection (Offenders Registration) Act 2000 (NSW). He had been given a warning by police that he was in breach of that order by attempting to befriend a young teenage boy a few months prior to committing the Index offences. The conditions of the CPR did not deter him from sexual offending against children in 2013. 5. The Index offences were committed whilst he was in a stable de-facto relationship with a 29 year old man and had pro-social support in the community. That support did not act as a deterrent in 2013. 6. Should Mr Thomas be released from custody without an ESO, he will have no further supervision by Community Corrections as his sentence has expired. Mr Thomas himself indicated to the sentencing judge for the Index offences that the absence of supervision by Community Corrections at the end of his parole period was a contributing factor in his commission of the Index offences. Both the sentencing judge for the Index offences, and Mr Sheehan who provided a report for those sentencing proceedings, were of the view that Mr Thomas required a significant period of supervision following his release from custody. In Dr Youssef, Dr Smith and Ms Wright's views, one of his risk factors is his difficulty identifying and managing his risk factors as well as planning. The conditions of a Child Protection Prohibition Order (CPPO) will not provide adequate supervision. Intensive supervision by Community Corrections is likely to reduce his risk of re-offending. 7. Mr Thomas was diagnosed in 2015 with Other Specific Paraphilic Disorder (Hebephilia/Ephebophilia, Non-Exclusive, Sexually Attracted to Males). This is a chronic, relapsing condition. Despite his advanced age, he has reported continuing to have intrusive sexual thoughts about young teenage boys. Dr Youssef, Dr Smith and Ms Wright each identify sexual deviance and attitudes supportive of sexual violence, sexual pre-occupation and identification with children as risk factors. 8. He has very few protective factors. Those that he does have, an optimistic attitude about his ability to not reoffend, and a pro-social support network in the community, were both present prior to and at the time he committed the Index offences. 9. Dr Youssef, Dr Smith and Ms Wright have each assessed Mr Thomas's risk for further sexual offending and concluded that he has a Well Above Average Risk of sexual offending when compared with other male sex offenders. 10. While Mr Thomas is of advanced age, (now 75 years old), and that is usually a protective factor, this is not so for all offenders. In both Dr Youssef's and Dr Smith's view Mr Thomas's advanced age is not necessarily an ameliorating factor, given the chronicity and recency, (relative to his age), of his offending.
I am satisfied that an ESO should be made with conditions that address the risk that Mr Thomas presents to vulnerable male children.

[19]

Conditions

Section 11 of the Act provides for the Court to impose conditions that it considers appropriate, and sets out the types of conditions that could be considered to be appropriate. Those conditions should be the least intrusive conditions consistent with the Court's assessment of the risk, and after an assessment as to what level of conditions are likely to be effective: Lynn per Basten JA at [129] to [130].
In this case substantial agreement was reached about the form of conditions, but challenge was made to the overly-broad nature of condition 27, the non-association condition, and a submission made that the monitoring condition (condition 4), should have an inbuilt "sunset clause" to set a closed period for which Mr Thomas would have to be electronically monitored.
Ms Cook submitted that given the secondary purpose of the legislation being rehabilitation of offenders, it is appropriate for the Court to circumscribe the time electronic monitoring will be in place. The prosect of four years of electronic monitoring is disheartening and given Mr Thomas's advanced age and the mode of asserted offending, its need and efficacy for such a long period is questionable. Any "sunset clause" - 9 months was suggested - can include an order that if there is any breach of any conditions, the monitoring will be reinstated.
Ms Gallagher responded that it would be arbitrary to introduce a 9 month (or other) time limit at this stage. First, it is still very early in the supervision period and there has already been some non-compliance and a formal direction issued in August after a previous warning was unheeded. The discretion should remain with the DSO as to when to step up or step down the necessary aspects of monitoring. If all goes well, the stepping down may occur earlier than 9 months. There is an inbuilt mechanism for regular reviews and a sunset clause would interfere with the DSO's role and the DSO's discretion and ability to respond to Mr Thomas's contemporaneously presenting risks.
I agree. I am of the view imposing a sunset clause to the electronic monitoring is not appropriate and interferes with the dynamic measuring of progress and risk that will be conducted by the DSOs over the ESO period.
On the issue of non-association, Ms Cook raised her client's perception that he was being unfairly treated by the direction he had been given that he must not associate with his friend and former partner, Bijay Balami.
Ms Cook proposed that any non-association condition should have as part of its terms that contact with the person in issue should only be proscribed where it increases the risk of sexually offending. Ms Cook submitted that it is unfair and unhelpful to deprive Mr Thomas from the company and comfort of his friend, Mr Balami.
In response, Ms Gallagher directed my attention to entries in the records regarding Mr Balami, including the fact that he has young male children, and is planning to move to Sydney from overseas with his wife and family and plans to stay with Mr Thomas.
It is not this Court's role to micro-manage how a DSO should decide who should be subject to a non-association condition and who should not, but the decision should be informed by the question of whether the association increases the risk of sexual re-offending. I have no reason, based on what appears in the Crown material, to take the view that the non-association direction involving Mr Balami does not have a proper basis of concern, and I reach no conclusion about that direction already made, however, I will introduce into the non-association condition a rider that clarifies the nature and quality of what comprises a "reasonable basis" in this context: Association with Others (not children) 27. The defendant must not associate with any person or persons specified by a DSO where there are reasonable grounds for that non-association direction linked to the risk of the defendant sexually offending.
Although not requested by the parties, I have also modified the wording of condition 31 to remove the words "or desirable" from the second sentence as I consider that introduces a vagary into the condition which is not appropriate.

At a glance

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Judgment (21 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)