State of New South Wales v Thomas

Index offences

1. 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.
2. 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.
3. 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

1. The defendant's history of offending includes: 1. One count of indecent assault, committed in June 1975, to which he pleaded guilty and was sentenced to a 3-year good behaviour bond; 2. One count of indecent assault, committed in May 1976, to which he pleaded guilty and was sentenced to 12 months imprisonment; 3. 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 1998 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; 4. 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.
2. 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.

Evidence

1. Much of the evidence is uncontroversial or uncontroverted (if that be different). There is, as is obvious from the foregoing, a Risk Assessment Report, dated 18 November 2021 from Ms Sarah Wright. The Risk Assessment Report provides the following insights: 1. Ms Wright expresses the opinion that the defendant has a deviant sexual interest in children, although his sexual interest is not exclusive to children. The Report notes a previous diagnosis of Other Specified Paraphilic Disorder and Ms Wright characterises the defendant's sexual offending as chronic. The defendant was assessed as falling within the "well above average risk" range for sexual reoffending. This is a range measured in relation to sexual offenders. 2. Ms Wright noted that the defendant tended to minimise his sexual offending by portraying the young victims as being willing participants, who benefited financially from the sexual activity. However, Ms Wright concluded that the defendant no longer appears to hold these beliefs and now recognises that they were cognitive distortions. 3. Ms Wright noted that the defendant said that he no longer has any sex drive and has difficulty achieving an erection but did report ongoing intrusive sexual thoughts about children. Ms Wright concluded that he continues to be sexually attracted to teenage boys. 4. The defendant told Ms Wright that he is optimistic about his ability not to reoffend, as he is more fearful of the consequences; has more support, being that which Ms Wright referred to as a "pro-social network", and more to lose; and he is older. However, Ms Wright noted that the defendant has expressed similar attitudes in custody prior to the index offending. 5. Ms Wright recommended that the conditions of the ESO should involve intensive supervision, strict monitoring and case management. Ms Wright suggested that risk management strategies may include scrutinising his social context; being subject to tests for substances; providing a schedule of daily activities and/or electronic monitoring; location restrictions to prevent access to children; the monitoring of electronic devices and online activity; and assistance for the defendant to develop strategies to manage his deviant sexual interests and address his risk factors.
2. While in custody, the defendant has completed the following programs: 1. Targeted treatment for sexual offending (CUBIT) (while in custody for previous offences during the period 2004 to 2005); 2. Custodial alcohol problems (1998 and 2006); 3. Two-year custodial maintenance program (while in custody for previous offences in 2006 to 2009); 4. Community-based maintenance program (2009-2010); 5. HISOP targeted sex offending treatment (while in custody for the index offences in 2021-2022); and 6. RUSH program (while in custody for the index offences in 2021).
3. The Risk Management Report prepared by Ms Shantelle Robinson, dated 21 January 2022, suggests the following conditions to address the risks identified by Ms Wright; 1. Weekly schedule of movement; 2. Electronic monitoring; 3. Place and travel restrictions; 4. The encouragement of employment, education and training and the monitoring of potential employment; 5. Notification by the defendant of his associations (and permission for the department to notify them of the defendant's offending history); 6. Internet/electronic restrictions and monitoring; 7. Alcohol prohibition order; 8. Search and seizure order; 9. The necessity for approval of changes to name and/or appearances; 10. Attendance at psychological treatment; and 11. Attendance at community-based intervention.
4. The evidence, which has been tendered in two volumes of Exhibit JM-1 to the affidavit of Jessica Leigh Murty, affirmed 28 February 2022, is not the subject of dispute by the defendant in these interim proceedings.
5. In addition to the above-mentioned reports, the Exhibit JM-1 contains further evidence regarding the criminal history and subjective circumstances of the defendant. That further evidence includes: 1. The defendant's NSW and South Australian Criminal History and associated Parole and Custodial Records; 2. Documents relating to and involved in, the five sets of offences for which the defendant has been convicted, as well as for the charges which did not result in conviction; 3. Six psychological and psychiatric reports dating from 1976 to 2015; 4. Treatment records for the programs undertaken by the defendant; and, 5. Child Protection Register material relating to the defendant.

Unacceptable risk: principles.

1. The legal test for to determining whether the defendant is an unacceptable risk have been rehearsed on a number of occasions. In order to issue an ISO binding on the defendant, the Court is required to be satisfied that the defendant's current custody or supervision will expire before the proceedings are finally determined and that the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order. [3]
2. As a consequence of the reference to the Court being required to be satisfied that the matters alleged justify the making of an Extended Supervision Order, the Court is required to deal with the determination of an application for an ESO, prescribed by s 9 of the Act. In considering that issue, the Court is required to treat the safety of the community as the paramount consideration.
3. Section 9(3) of the Act prescribes several factors that are required considerations when the Court is dealing with an application for an ESO. Some of those criteria are not relevant to an order for an ISO, because some of them depend upon circumstances that have not yet occurred.
4. Before dealing with the issues prescribed by s 9 of the Act, it is necessary to deal with the criteria for an ESO, prescribed by s 5B of the Act. Those criteria require that the defendant be an offender who is serving or has served a sentence of imprisonment for a serious offence; the defendant is a supervised offender, being a person who, when the application for an ESO is made, is in custody or under supervision for a serious offence or an offence of a sexual nature (relevantly); the application has been made prior to the last nine months of the defendant's current custody or supervision, addresses each of the matters prescribed by s 9(3) of the Act and includes a report prepared by one of a number of prescribed professionals assessing the likelihood of the defendant committing a serious offence; and, that the Court be satisfied "to a high degree of probability" that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. [4]
5. Notwithstanding the requirement for the Court to be satisfied to a high degree of probability of the unacceptable risk posed by the defendant, the Court is not required to determine that the risk of the defendant committing a serious offence is more likely than not. [5]
6. From the facts already outlined in these reasons, it is clear that the application for an ESO, by the filing of the summons on 1 March 2022, was made within the 9-month period prior to the expiry of the sentence of the defendant; the defendant is a supervised offender within the meaning of s 5I of the Act; and the documentation prescribed by s 6(3) of the Act has been provided.
7. The assessment of a defendant as posing an unacceptable risk involves the evaluation of a matrix of factors, including the likelihood that a serious offence will be committed in the absence of supervision and the harm that would be done were such an offence to be committed. If the evaluation of that matrix results in the proposition that the defendant poses an unacceptable risk and the Court is so satisfied to a high degree of probability, then, subject to any discretion under s 9 of the Act, the Court may issue an ISO.
8. The defendant, at least for the purposes of the application for an ISO, concedes each of the statutory prescriptions required before an ISO may issue. Included in the foregoing concession is that the defendant concedes that, at least for the purposes confined to the interim application, poses an unacceptable risk of the kind to which the Act refers in s 5B(d). Notwithstanding the agreement of the defendant, the Court is required, as a matter of jurisdiction, to determine that an unacceptable risk is posed by the defendant.
9. The Risk Assessment Reports to which the Court has already referred describe the risk levels as "well above average" for a sexual offender, being a description of the risk of reoffending. The history of the defendant is such that, coupled with that assessment, the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence, if not kept under supervision under an ISO or ESO.
10. Further, the Court is satisfied that it is appropriate to make ancillary orders the effect of which is to appoint a psychologist and/or psychiatrist to report to the Court and to require the defendant to attend any examination required by the persons appointed.
11. Conditions
12. As is obvious from the foregoing, the only matters upon which the parties are in dispute, for the purposes of the ISO, are the conditions that the Court should impose upon the defendant during the course of his ISO.
13. Essentially, the defendant submits that the Court should grant the ISO with the conditions of the defendant's current parole order. The defendant submits that the State Parole Authority is assumed to have considered that the conditions of Parole that were imposed on the defendant were appropriate so as to grant the release of the applicant, which they are capable of doing only if the Authority is satisfied that the release of the defendant is in the interests of the safety of the community. [6]
14. The defendant relies upon the proposition that the defendant has been compliant with his parole conditions and that there has been no offending or breaches of parole during his conditional liberty.
15. There is much to be said for a consistent regime to be applied to defendants who are likely to be the subject of an ISO or ESO, or an application for such an order. However, while the State Parole Authority is required to exercise its power to release a person on parole only in circumstances where the safety of the community is not thought to be compromised, there are a number of significant differences in the circumstances in which persons are on conditional liberty for parole vis-à-vis those that are the subject of an ESO, or, in the interim, an ISO.
16. It would be most useful if the government were to organise Corrective Services in a way which allowed for a continuation and/or consistency in relation to parole conditions and those conditions that are likely to be imposed as a result of the operation of an ISO or ESO.
17. The reliance by the defendant on the defendant's compliance with his parole is, to some extent, misplaced. The defendant has been on parole for a very limited period and the limited nature of the period does not allow the Court to conclude that, in the longer term, such conditions would be sufficient to ameliorate the unacceptable risk that otherwise has been determined.
18. Over and above the foregoing, for the Court to impose the parole conditions as the conditions applicable under an ISO would have detrimental effects on the defendant. The parole conditions grant a significant range of discretion to the appropriate officer.
19. While the Court accepts that the officers in question would ordinarily act reasonably, or seek to act reasonably, a breach of conditions - which, in this case, would include a breach of a direction from the appropriate officer - would result in a criminal offence.
20. As a consequence, the Court considers it appropriate to be more prescriptive in the nature of the conditions that are to be imposed, rather than leave to the discretion of an officer the conditions by which the defendant is required to abide.
21. As a consequence of the foregoing view, I accept that the appropriate format of the conditions is that proposed by the State. Nevertheless, I have made some alterations consistent with that which, in my view, is appropriate and directed to the alleviation of the risk, and its policing, but no further.
22. In relation to Condition 6, it seems unnecessary to provide details other than the places to which the defendant intends to travel, the means of travel, the dates of travel and the person he intends to meet there, if anybody. Further, an alteration to a schedule may appropriately be effected by notifying the DSO in writing at least 24 hours in advance (unless a shorter period is approved by the DSO), and providing that the DSO must not withhold approval except on a reasonable basis.
23. In relation to Condition 9, as proposed by the State, such bylaws, in order to be part of the ISO by reference, should be confined to bylaws that relate to contact with, or the safety of, either the defendant or the other occupants of the premises. Further, in relation to Condition 11, the Court does not see it as appropriate to prohibit or restrict adult to adult sexual conduct, which is otherwise legal. This latter aspect is relevant to other proposed conditions.
24. As a consequence, where the defendant seeks to spend the night other than at his approved address, it will be sufficient for the defendant to notify the DSO, and any prohibition of such conduct may not be effected other than on a reasonable basis. Similarly, Condition 12 will not permit a person to stay overnight unless the DSO has been notified of that fact.
25. In relation to Condition 16(d) I have altered the wording to make clear that the prohibition on attending concerts, theatre shows, movies or events is confined to such concerts, theatre shows, movies or events intended for the entertainment of children.
26. Given the other restrictions imposed upon the defendant, it seems unnecessary, to ameliorate the risk posed by the defendant, to require the defendant to provide his financial affairs, or documents relating to it, to the DSO. The foregoing relates to Condition 20.
27. In relation to Condition 26, for the reason already outlined relating to lawful sexual conduct, the age at which the prohibition will operate is 16. I will leave to later in these reasons, the issues associated with Condition 30.
28. I have altered Condition 34 so as to make clear that a moniker, pseudonym or "handle" usually used for Instagram and other such electronic/social media may be used if the name or identifying tag is known to the DSO. In relation to Condition 48, the change is confined to facial appearance and requires notification of the DSO and, if the DSO so directs, provision of a photograph with his new appearance.
29. I turn to the provisions of Condition 30. The defendant has been described as, and diagnosed as, having a paraphilic disorder. Ordinarily, on expert material that has been tendered in proceedings before the Court on this and other occasions, such disorders are incurable. They are treated in several ways.
30. First, they are often treated by anti-libidinal medication. Most often they are treated by therapy and the encouragement of socially acceptable relationships. Condition 30 seems to operate inconsistently with the formation of a socially acceptable relationship, unless there is the opportunity for the defendant to inform a person with whom he intends to have a relationship in a manner that is appropriate. In those circumstances, it seems a more appropriate condition is the following: "Should the defendant intend to enter into a relationship with another person (in this condition called "the other person") and the defendant anticipates or hopes that the relationship will develop into a relationship involving sexual or intimate contact, the defendant must notify the DSO at the earliest opportunity. The DSO, after providing the defendant with an opportunity to disclose to the other person the history that gave rise to his status as a serious sexual offender, may disclose such history to the other person, if the DSO is satisfied that to do so is necessary or desirable in the interests of the safety of the other person or a family member of the other person or a person under the age of 16 at times cohabiting with the other person. If the DSO considers it necessary to disclose such matter to any other person, application may be made to the Court at short notice by either party."
31. Otherwise, the conditions are those suggested by the State and those conditions will form an annexure to the orders that the Court now issues.
32. The Court makes the following orders: 1. Pursuant to ss 10A and 10(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"), the defendant shall be subject to an Interim Supervision Order commencing on 9 July 2022 ("the Interim Supervision Order") for a period of 28 days from that date; 2. Pursuant to s 11 of the Act, the defendant is directed, for the period of the Interim Supervision Order, to comply with the conditions set out in the Annexure to this Order; 3. Two qualified psychiatrists or two registered psychologists, or a combination of one of each, shall be agreed between the parties to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Court on the results of those examinations by 9 September 2022; 4. The defendant shall attend any examination arranged in relation to each such psychiatrist or psychologist; 5. Access to the Supreme Court file in this matter is restricted in respect of this proceeding so that access will only be permitted to a non-party with the leave of a judge of the Court and only after the parties have received notice of the non-party's application for access and each has been afforded an opportunity to be heard with respect to the application for access. 220707 - Schedule of Conditions - Thomas (138699, pdf)

Endnotes

1. Reported to Ms Sarah Wright, the author of the Risk Assessment Report, 18 November 2021, Exhibit JM-1, Tab 1.
2. Risk Assessment Report of Ms Sarah Wright, 18 November 2021, Tab 1 of Ex JM-1.
3. Crimes (High Risk Offenders) Act, s 10A.
4. Crimes (High Risk Offenders) Act, ss 5B, 5I and 6.
5. Crimes (High Risk Offenders) Act 2006 (NSW), s 5D.
6. Crimes (Administration of Sentences) Act 1999 (NSW), s 135. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2022