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Parties: State of New South Wales (Plaintiff)
Trevor Thomas (Defendant)

Representation: Counsel:
L Chapman (Plaintiff)
A Burkitt (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2025/45848

Publication restriction: Nil.

JUDGMENT

1. HIS HONOUR: By Summons filed on 4 February 2025, the State of New South Wales (“the State”), by principal relief, seeks an Extended Supervision Order (“ESO”) for a period of three years under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) against the defendant, Mr Trevor Thomas. Unless otherwise specified, all references to legislation in this judgment are references to that Act.

2. Mr Thomas accepts that the State’s evidence read in the proceedings justifies the ESO sought. The real issues for determination are the duration of the ESO and the appropriate conditions. However, the Court’s jurisdiction is not a consent jurisdiction, and it is necessary for the Court to be satisfied that the statutory preconditions for making an order are established. These include the condition under s 5B(d) that Mr Thomas poses an unacceptable risk of committing another serious offence if not kept under an ESO. This condition must be established to a high degree of probability. It is also necessary that the mandatory considerations specified in s 9(3) have been considered and justify the making of the order on the balance of probabilities. However, the consideration that Mr Thomas is represented by lawyers experienced in the field and, through them, does not wish to be heard against the making of the order (except to the extent to which I have specified) is a relevant consideration entitled to considerable weight, having regard to the discretionary nature of the power to make an order conferred on the Court by s 9(1). In this regard, it must be borne in mind that proceedings under the Act are civil proceedings which, subject to the Act, are to be conducted in accordance with the law relating to civil proceedings: s 21.

The Preliminary Hearing

3. Justice Fagan conducted the preliminary hearing of the matter on 6 May 2025 and in judgment given the same day ordered the appointment of two experts under s 7(4), and an interim supervision order (“ISO”) for a period of 28 days with conditions his Honour considered appropriate under s 11.

4. The ISO commenced on 5 June 2025. Its operation was suspended by Mr Thomas’s arrest and remand from 11 June 2025 on drug and firearm offences. He was convicted of these matters on 22 April 2026 at Nowra Local Court and sentenced to an aggregate term of imprisonment of 24 months, with a non-parole period of 12 months, expiring on 10 June 2027. He was released to his parole on 10 June 2026 pursuant to a statutory parole order. The term of the ISO was accordingly suspended during the period of custody by force of s 10C(1A). It was subsequently renewed twice, first by Yehia J and secondly by Emmett J. The third order expires on 30 August 2026, leaving a few days before the expiration of the time limited by s 10C(2) of three months.

5. There is no issue, and it is undoubtedly correct, that the statutory preconditions referred to in s 5B(a)-(c) are satisfied in the present case. When the application was made, Mr Thomas was an offender who was serving the balance of his total effective sentence of imprisonment of 20 years in the community on parole for three serious sexual offences. His parole expired on 5 June 2025. The same circumstances establish that Mr Thomas was a supervised offender under s 5I(2)(a)(i) for the purpose of s 5B(b) and the application made by the Summons complied with the requirements of s 6: State of NSW v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86 at [124]-[125].

6. Apart from Mr Thomas’s concession that the evidence read before me also satisfies the s 5B(d) unacceptable risk test to the high degree of persuasion required, from my consideration of that material, I am satisfied that concession is properly made. I will give reasons for that conclusion after I have considered the s 9(3) mandatory considerations. As these matters are not strongly in issue, I propose to provide my reasons for my decision in relatively short form before turning to the appropriate conditions to which Mr Thomas should be subject if I make the ESO.

Mandatory Considerations

7. Mr Thomas is an Indigenous man born in November 1965 in a “camp” on the outskirts of Nowra. He is now 60 years of age. Growing up he lived in various places in country New South Wales because members of his family did seasonal agricultural work. He was raised by his grandmother from about the age of six. While the evidence is not entirely clear, he was the sixth of ten or so children and had a highly dysfunctional upbringing. He was the victim of physical and sexual abuse. His father was said to have been violent towards the family. His mother died when he was 15 years old.

8. He did not like school but attended Nowra Public School and Nowra High School. He has very negative memories of his teachers. He had learning difficulties including dyslexia. Due to his proclivity to bullying, and fighting with, other students, he was expelled from high school in Year 8 or 9. He may have performed some agricultural work after leaving school. He does not seem to have had much regular employment. Three months work was said to have been his only period of employment after school. He may not be a completely accurate historian.

9. Substance abuse issues involving alcohol and various prohibited drugs, including cannabis, eventually progressing to heroin and other opioids, commenced at the age of 13, worsening when he entered adulthood.

10. His contact with the criminal justice system commenced as a teenager. His record of serious offending as an adult was summarised by Fagan J in his judgment of 6 May 2025. I have considered the evidence for myself, and I am satisfied on the balance of probabilities that the salient features of that record have, with respect, been accurately summarised by his Honour. For convenience, I set out his Honour’s findings at the preliminary hearing about this topic (at [6]-[14]):

“6 In early June 1990, at the age of 24, the defendant killed a man named Mark Robson by striking him to the head with a hammer. The defendant was not charged in relation to that until July 1997 when he pleaded guilty to manslaughter. By that date he was in custody for another matter to which I will refer shortly. Up to August 1993, at which time the defendant was aged 28 years, he had accumulated five previous convictions for malicious wounding and four for assault. It does not appear that he had been sentenced to imprisonment for any of those offences up to the middle of 1993.

7 On 21 August 1993, the defendant killed a former partner of his sister by stabbing him. He was convicted of manslaughter for that offence and was sentenced by Dunford J to imprisonment for 6 years with a non-parole period of 3 years and 6 months. That sentence commenced from 3 November 1994, making allowance for the time that the defendant had served on remand and allowance for a 6 month sentence that he had served, after his arrest for the manslaughter, on account of earlier non-fatal violence offences.

8 While still serving the term imposed by Dunford J, the defendant was sentenced in 1997 for the manslaughter of Mark Robson in 1990. A term of imprisonment of 6 years with a non-parole period of 3 years was imposed. The cumulative effect of the various terms of imprisonment that he commenced to serve from when he was arrested in August 1993 is that he remained in prison for 10 years and 9 months from 1993 until his release on 2 September 2004. He was thus in prison continuously from the age of 28 to nearly 40. During that period of imprisonment, the defendant was charged with murder for a homicide that occurred within a correctional facility but he was acquitted of that charge.

9 Following the defendant’s release on 2 September 2004 he committed in early 2005 the index offences to which I have earlier referred. They are detailed in the remarks on sentence of Conlon DCJ, who sentenced him on 10 May 2007. The first of the principal offences that resulted in the term of 20 years with a non-parole period of 15 years to which I earlier referred, was committed on 26 February 2005 when the defendant accosted a young man walking alone in the Nowra area and forcibly carried out anal intercourse upon him at the point of a knife. The defendant also robbed the victim.

10 A little over a week later, on 6 March 2005, the defendant committed a robbery on another young man in the Nowra area, again at knifepoint, and caused a serious knife wound to the young man’s arm. It appears that but for resistance of that victim, fending off the defendant, he also would have been sexually assaulted. At the time when the victim was able to escape from the attack by the defendant, the latter was in the process of unzipping his fly. For reasons that are not apparent in the records, despite the fact that the defendant was identified and arrested, he was released to bail and he committed another similar offence in the Broadmeadow area of Newcastle on 2 June 2005.

11 This was another offence against a victim quite unknown to the defendant, who was sexually assaulted in a similar manner and robbed. When the defendant was sentenced for these crimes, there was taken into account on a form 1 another very serious offence of having struck a man with a beer glass to his left eye, causing a deep laceration that required surgery. That occurred in a hotel in Oxford Street, Darlinghurst as the culmination of an altercation.

12 Further offences taken into account on form 1 schedules included that on 11 May 2005 the defendant attacked a person in a residence in Bega. This was a person whom he knew and the offending took place when a number of people, including relatives of the defendant, were gathered in a home. The defendant had a disagreement with the victim and removed a 10-centimetre knife from the waistband of his jeans and stabbed the victim to the left side of his neck. It is not apparent why this additional, very serious offence against a separate victim, or the other offence constituted by the glassing incident in the hotel in Darlinghurst, were dealt with on form 1 schedules rather than as substantive counts.

13 During his imprisonment under the term imposed by Conlon DCJ, the defendant has committed numerous serious assaults on prison officers and has been dealt with for literally dozens of disciplinary breaches, at least 20 of them of a violent nature. As can be seen from the date of release to parole that I quoted earlier, the defendant spent nearly 19 years in prison in relation to the matters for which Conlon DCJ sentenced him. The result is that he was in full-time custody from the age of 41 years up to his present age of 59. Apart from the period of approximately nine months between early September 2004 and June 2005, the defendant has in effect spent almost the whole of his adult life in prison, from the age of 28 through to nearly 60.

14 This record of offending, having regard to the nature and seriousness of it, would appear to leave little doubt that the defendant remains at serious risk of committing further offences of violence if not supervised. In those circumstances, I have no difficulty in finding that the final criterion for making an interim supervision order is satisfied and accordingly I will make orders 1 and 2 in the summons.”

As I have said, I am satisfied from the evidence before me that his Honour’s account is accurate. It is clear than that Mr Thomas has a record of serious offending within s 5 for serious sex offending, and s 5A for serious violence offending.

11. It is an agreed fact that, from the age of 16, Mr Thomas has a history of violent offending for which he has been sentenced to control orders as a juvenile and significant terms of imprisonment as an adult. He has spent most of his life in custody. On 2 September 2004, he was released from custody having served a continuous period of 10 years and 9 months in prison. Part of that time related to his remand for the offence of murder, allegedly committed against another inmate while Mr Thomas was in custody on 5 July 1998 of which he was acquitted. The effect of this meant that he had been in custody without the opportunity for parole and upon his release following his acquittal he was reintroduced to the community without supervision.

12. The index offences for the present application were three serious sexual assaults between February and June 2005. To be more particular, the offences are:

(a) Aggravated sexual assault with threat to inflict actual bodily harm on the victim with a weapon and robbery armed with offensive weapon, occurring on 26 February 2025; (b) Inflict actual bodily harm with intent to have sexual intercourse with the victim and aggravated robbery with wounding/grievous bodily harm, occurring on 6 March 2005; and (c) aggravated sexual assault with threat the inflict actual bodily harm on the victim and robbery armed with offensive weapon, occurring on 2 June 2005

13. Of concern, Mr Thomas claims not to remember theses offences due to memory loss he attributes to heavy methylamphetamine use at the time. Each of the victims was a stranger to Mr Thomas, randomly selected by him in an opportunistic way while the respective victim was vulnerable, being alone and probably intoxicated in a public place.

14. The aggregate sentence passed was one of 20 years, with a non-parole period of 15 years. He served just short of 19 years of the head sentence before being granted parole in April 2024. While in custody, he committed two further offences of violence, being assaults on corrections officers. The first occurring on 12 November 2007, resulting in a sentence of 15 months’ imprisonment. The second occurring on 25 June 2014, resulting in a period of imprisonment of 16 months. In custody Mr Thomas was charged with 28 breaches of discipline and 65 custodial offences, including engagement in violence. The frequency of his offending generally reduced over time. Most of his time in custody was in the High-Risk Management Unit (“HRMU”) in the Goulburn Correctional Centre.

15. Mr Thomas pleaded guilty to the index offences and related charges, although not at the first available opportunity. He was sentenced by Conlon SC DCJ on 10 May 2007.

16. Dealing with the offences, including Form 1 offences, together, his Honour observed, “[t]he offender’s conduct involved a high degree of criminality. With the regard to the objective seriousness of each of these offences I regard the element of deterrence, both specific and general, to be significant factors on sentence.” (Remarks on Sentence (“ROS”), p 14.)

17. From psychological evidence read in mitigation, his Honour referred to Mr Thomas’s 10 years and 9 months spent in custody until 2004 in the following way (ROS, p 16): “… Mr Thomas has limited insight into his anger and violence and he expressed interest in participating in the violent offender treatment program to assist in this regard. Mr Thomas described his experience in the HRMU as being very negative … he claimed that his time in the HRMU had caused him to feel more angry and resentful and as if he has ceased to exist as a person. As such he found the experience of being released straight from the HRMU particularly confronting and noted that he did not discuss with any one as he believed that no one would understand and that it was also inappropriate to discuss his difficulties with others.”

18. His Honour referred to Mr Thomas’s disadvantaged background, which he took into account in mitigation. His Honour considered that Mr Thomas presented a risk of reoffending such as he was satisfied that protection of the community was a particular object of sentencing in the case at hand. His Honour reminded himself that “purely preventative detention” is not justified (ROS, p 23).

Risk Assessment Report (s 9(3)(c))

19. Given his long period in custody, Mr Thomas has been subject to many risk assessment reports and psychological assessment reports, including for the purpose of sentencing proceedings. Given his attitude to the making of an order, it is not necessary to review all of these.

20. For the purposes of this application, the State relied upon the Risk Assessment Report of Dr Richard Parker, dated 29 July 2024. Dr Parker’s Report was a desktop review. Dr Parker’s overall assessment was that Mr Thomas fell within the highest categories of risk for both sexual and violent offending. This risk would escalate if Mr Thomas relapses into substance abuse. While Mr Thomas had completed the Violent Offenders Therapeutic Program (“VOTP”) in November 2023, he had struggled at times with the program but had made substantial progress. He required further treatment.

21. Dr Parker noticed that previous applications of risk assessment tools had produced a range of results, including “well above average”, “moderate high-risk category” and “moderate”. Dr Parker combined scores from the STABLE-2007 and the STATIC-99R assessments, yielding a “well above average risk”. The risk scenarios identified by Dr Parker for the commission of violent or sexual offences were related to a combination of substance abuse, isolation and negative psychology. They could lead to violence or sexualised violence against a victim who may or may not be a stranger to him.

22. In a Supplementary Risk Assessment Report of 9 June 2026, which followed an assessment of Mr Thomas on 5 June 2026, Dr Parker recorded that Mr Thomas had been mostly compliant with the conditions of his parole. Difficulties with complying with his schedule of movements was a result of a cognitive decline and associated general disorganisation, rather than “an oppositional attitude”. Mr Thomas expressed a desire to transition to independent living in the community. The application of risk assessment tools by Dr Parker resulted in a somewhat lower score than previously. Mr Thomas was more in the medium than the high range. He was “above average risk” rather than “well above average”.

Ms Lisa Zipparo – Court Appointed Expert

23. Ms Zipparo is a Senior Clinical Neuropsychologist, and her First Report is dated 1 July 2025, which was admitted as Exhibit CB-7. Her Second Report of 6 July 2026 was admitted as Exhibit CB-8.

24. The results of Ms Zipparo’s neuropsychological testing indicated that while Mr Thomas was estimated to have average premorbid functioning, there were deficits in his verbal abilities consistent with a Specific Learning Disorder. Application of the STATIC-99R tool produced a result placing Mr Thomas in the “moderate-high” range for the risk of sexual reoffending. He was not in the “high” range because of his advancing years. The HCR-20 tool produced a “high” loading of risk factors.

25. Ms Zipparo was also of the opinion that Mr Thomas was suffering from a Major Neurocognitive Disorder, which was most likely substance induced. This condition contributed to the risk of reoffending because it limited Mr Thomas’s capacity to consolidate and implement learning from rehabilitation programs. The associated poor memory would interfere with his ability to comply with ESO conditions. He was likely to require significant support in his daily routines and Ms Zipparo recommended that NDIS funding should be sought on his behalf. He should be examined by a neurologist or a geriatrician. Ms Zipparo was of the view that the proposed ESO conditions would help mitigate the risk of Mr Thomas reoffending. He would benefit from support to assist with compliance, because of his significant cognitive limitations. In her Second Report, Ms Zipparo noted further cognitive decline, which persuaded her that he was probably suffering from a neurodegenerative process, possibly an Alzheimer’s type Dementia, rather than a condition attributable to his substance abuse. However, a mixed aetiology may be more likely given his many risk factors. She considered he was in rapid decline.

26. Ms Zipparo regarded the most suitable placement for Mr Thomas to be an aged care facility, providing continued daily support and supervision. I interpolate that Mr Thomas is not in favour of this approach. He would prefer to live independently. His cognitive decline may make Mr Thomas more reactive and more easily trigged into aggressive responses.

27. Initially, Ms Zipparo expressed the opinion that a ESO of three years’ duration was appropriate. She modified that opinion in her oral evidence. In particular, she identified the need to stabilise Mr Thomas’s living situation and appropriate supports as the key determinant. This could range anywhere between one to two years. Indeed, the appropriate duration of the order was, given the uncertainties, difficult to estimate. One particular uncertainty is the future availability of any funding for treatment by the NDIS.

Dr Calum Smith – Court Appointed Expert

28. Dr Smith is a Forensic Psychiatrist. He conducted two assessments of Mr Thomas, on 18 and 25 June 2026, by audio visual link. Dr Smith’s cognitive testing of Mr Thomas demonstrated significant reduction in powers of recall, considerable difficulty in motor abilities and a shortfall in abstract thinking and reasoning. The relevant assessment tools indicated a clear degree of elevated risk in relation to both violence and sexual violence, mainly due to the “significant historical loading”. Dr Smith regards Mr Thomas as being at high risk, particularly in relation to a serious violence offence. Dr Smith, like Ms Zipparo, was of the view that Mr Thomas should be managed under an ESO.

29. Dr Smith was of the view that Mr Thomas suffered from both a Substance Use Disorder, which was currently in remission due to his compliance with an opioid replacement therapeutic program, and also a Major Neurocognitive Disorder in the nature of Dementia. The memory difficulties will be challenging in terms of Mr Thomas’s compliance with the conditions of an ESO. He requires appropriate accommodation and support, such as under the NDIS. Dr Smith was of the view that the risk for violent and sexual offending generally decreases with age. He observed that Mr Thomas was becoming more physically frail due to his Dementia. If appropriate accommodation is found and appropriate support is provided, an ESO may not be needed. Dr Smith therefore suggested a two-year duration of an ESO, to allow for appropriate stability to be established in the community, having regard to Mr Thomas’s Dementia.

30. In his oral testimony, Dr Smith reaffirmed that there could be difficulty with compliance with conditions because of Mr Thomas’s Dementia. The appropriate duration for an order was uncertain because it depended on the achievement of stabilisation in an appropriate residential environment with appropriate support to guard against Mr Thomas relapsing into substance abuse and homelessness, which would increase the risk.

Risk Management Report

31. I had the benefit of evidence principally in Affidavit form from Ms Kelli Grabham. Her Affidavit was affirmed on 14 August 2026. Ms Grabham is a High Risk Offender Applications and Operational Governance Officer, with the Extended Supervision Order Team. She has currently been in that role since April 2025 and previously occupied the same position between April 2019 and March 2023. While she has not met Mr Thomas, she has reviewed the file, and her Affidavit was mainly concerned with the question of appropriate management in the community. Ms Grabham gave a very detailed account of the operation of the ESO team. It is unnecessary for me to detail this evidence, but it is a multidisciplinary team drawing members from various agencies and expert disciplines. A Departmental Supervising Officer (“DSO”) is allocated to Mr Thomas’s team as is primary point of daily contact.

32. As is consistent with the objects of the Act, the primary focus of the supervision is to ensure the protection of the community. To this end, the DSO and other members of the team seek to assist with the creation of safe and positive support networks in the community, facilitate appropriate interventions to address the risk of reoffending and maintain long-term independent accommodation. As Mr Thomas is an Indigenous Australian, community based cultural support is sought to be provided through Aboriginal elders and the Aboriginal Medical Service in his locality. Ms Grabham is aware of Mr Thomas’s Dementia and the need for particular support in relation to that matter. With the imposition of appropriate conditions, Ms Grabham is of the opinion that Mr Thomas’s risk can be appropriately managed in the community. The overall thrust of Ms Grabham’s evidence is that, even allowing for the diagnosis of Dementia, which has now emerged, Mr Thomas’s risk can be adequately managed in the community under appropriate conditions.

Treatment and Rehabilitation Programs

33. Mr Thomas had difficulty completing programs during his prolonged time in custody. As I have already stated, he did manage to complete the VOTP program in November 2023, prior to his release to parole in April 2024. Given his learning difficulties and perhaps emerging, but not fully appreciated, neurocognitive difficulties, Mr Thomas had difficulties with full compliance. It has been suggested he would need further engagement in the community. I am of the view that Mr Thomas will seek to comply with any further programs offered to him in the community, but his emerging Dementia and his learning disabilities will provide significant challenges for him.

Options to Reduce the Likelihood of the Offender Reoffending

34. As I have tried to make clear, the matters which may be seen to be ameliorating Mr Thomas’s risk factors currently are his age and his emerging Dementia, which will only worsen. Should he obtain NDIS funding to place him in suitable accommodation with appropriate supports, those matters would further reduce the likelihood of Mr Thomas reoffending. Currently, no NDIS application has been lodged. In fact, his present situation is somewhat precarious. He is in temporary boarding-house-style supervised accommodation, which in someways has proved satisfactory, but it will not be available to him permanently. Moreover, understandably, Mr Thomas would prefer to live independently in the community. Given his emerging neurocognitive disorder, I doubt very much whether that ambition is now achievable. It would seem realistically that the only option currently available to reduce the risk is an ESO.

35. Notwithstanding his offending so soon after the ISO came into effect, I think it likely that he will comply with the ESO. He seems to have satisfactorily complied with the requirements of parole after his release in April 2024. To return to the theme, the aspect which will present the most challenges with his compliance will be his neurocognitive disability. This may lead him unwittingly to failing to comply with whatever conditions are imposed. In particular, already he has experienced difficulties remembering to recharge the battery of his electronic monitoring device. There is always a degree of complexity to the conditions imposed with an ESO. This will present challenges for Mr Thomas. They will require the DSO and the whole ESO team to deal with his particular case with a high degree of sensitivity, always bearing in mind protection of the community as the primary function of an ESO.

36. I have dealt already with Mr Thomas’s criminal history and the views of Conlon SC DCJ and I will not repeat those matters here.

Assessment of Risk

37. Notwithstanding Mr Thomas’s age and his Demetia, I am satisfied to a high degree of probability that Mr Thomas presents an unacceptable risk of committing another serious sexual offence and/or violence offence while in the community if not under an ESO. The risk relates mainly to historical factors: his profoundly socially deprived upbringing; his truly appalling record as both a juvenile offender and an adult; and the high degree of institutionalisation engendered by spending most of his adult life in custody (much of which was in a high-risk management unit) points strongly to a conclusion that he presents with an unacceptable risk. This is borne out by the opinion of the experts and the results produced by the application of the statistical risk analysis tools. The matters I have referred to are, of course, the high historical loading referred to by the experts. His reoffending so soon after the imposition of the ISO in May 2025 and its commencement on 6 June 2025, including for possession of an unregistered firearm, illustrate the risk.

38. Currently, on his opioid replacement therapy program and due to his emerging Dementia, his substance abuse issue appears to be in remission. This of course is an important criminogenic factor in Mr Thomas’s case, but I am not satisfied that, left to his own devices and without supervision, his remission from substance abuse disorder, age and Dementia, without proper assistance, provide sufficient protection for the community.

Should an Order be Made?

39. For the reasons I have given, I am satisfied that I should exercise my discretion under the provisions of s 9 to make an ESO. There is a question about duration as I have already indicated. As Mr Thomas grows yet older and his Dementia progresses, provided he has adequate support in the community otherwise, his risk may reduce to the point where an ESO is no longer required. It is very difficult to forecast when that time might come. With due respect to the Court appointed experts, they seem to have the same difficulty. In my view, no less than two years is an appropriate period. If Mr Thomas’s risk can be shown to have reduced before the expiration of the order, an application can be made for the variation or revocation of the ESO under s 13.

Conditions

40. I turn then to the imposition of such conditions as I consider appropriate for the management of Mr Thomas’s risk and promotion of his rehabilitation. Many of the conditions sought by the State are agreed. Given Mr Thomas’s Dementia, the parties have agreed to produce the proposed conditions in plainer English than normally utilised for the purposes of the Act, and I commend them for this. Given that some conditions were not pressed, the conditions have been renumbered from the proposed conditions attached to the Summons. To assist the parties in reconciling the proposed conditions with those as made, I will hand down an aide-memoir with (but not forming part of) this judgment.

41. I do not propose to deal with every condition. Rather I will focus on the disputes either as to whether it should be imposed at all or the terms on which it should be imposed.

42. The first matter in dispute is condition 3, requiring truthful answers to questions from the DSO. The only dispute here is as to terminology and I have preferred that version proposed by the State. That proposed on behalf of Mr Thomas is somewhat qualified, I think inappropriately.

43. The next condition which is in dispute in substance is condition 4, in short, prohibiting threatening or intimidating behaviour towards staff responsible for Mr Thomas’s supervision under the order. Mr Thomas opposed this. It was argued that there was adequate protection provided by the general criminal law and that different wording in a condition may confound this. It may lead him unwittingly into the commission of a serious offence, referring to the provisions of s 12, under which a breach of a supervision order carries a maximum penalty of 5 years’ imprisonment. With respect, I am unpersuaded by these arguments. The conditions, taken together, provide a regime of conduct for Mr Thomas. He is unlikely to have regard to the general criminal law in his dealings with the DSO. Reducing the condition to writing reinforces it and provides him with certainty as to what is required of him. I have imposed the condition contended for by the State in its agreed plain English form.

44. Electronic monitoring is opposed. This is proposed condition 6. The terminology is also imposed. It is understandable that electronic monitoring is always controversial for a person subject to an ESO. I appreciate that in the present case, unlike in others, compliance with keeping the monitor charged has been a problem for Mr Thomas because of his Dementia. As I have said, sensitivity needs to be adopted by the DSO and the whole ESO team with regard to this. I am of the view, however, that electronic monitoring has an important part to play in community protection, and I propose to impose that condition in the plain English form contended for by the State.

45. Condition 7 requiring a schedule of movements from Mr Thomas is also opposed. Again, the practical difficulties given his neurocognitive condition are emphasised, understandably. I am of the view that a schedule of movements works in concert with electronic monitoring to provide optimum supervision. To put it in simple terms, if Mr Thomas’s movements are to be effectively monitored, the monitor has to know where he is supposed to be at any given time. The schedule of movements provides the necessary guidance. With some modification I have adopted the plain English version contended for on behalf of Mr Thomas as appears in the schedule.

46. Conditions 8 and 9 are opposed. They relate to compliance with the schedule of movements once provided each week. As I understand it, Mr Thomas’s opposition relates to his basic opposition to providing the schedule at all, rather than the need to comply with it, if I decided to impose that requirement. For condition 8, I have adopted the plain English version proposed on behalf of Mr Thomas, with a degree of modification. For condition 9, I have adopted the State’s proposal.

47. Condition 11 seeks to impose a curfew between 9:00pm and 6:00am. This is opposed by Mr Thomas. I find it difficult to conceive of what Mr Thomas would lawfully wish to do between the hours of 9:00pm and 6:00am which would keep him from being home. Considering the circumstances of the index offending in particular, there is a real possibility that the risk presented by Mr Thomas may materialise in the hours of darkness. I regard the imposition of a curfew as appropriate and relatively undemanding. I have adopted the agreed plain English proposal.

48. Condition 12 confers a right upon the DSO to make random visits to Mr Thomas’s home, subject to a qualification as to frequency. The main dispute seems to relate to which plain English version should be adopted. With modifications, I have adopted the State’s proposal.

49. Condition 14 requires Mr Thomas to notify his DSO of any visitor entering and remaining at his approved residence. The condition is opposed as an unnecessary infringement on Mr Thomas’s liberty and freedom of association. However, associations are relevant to risk, although for his most serious offending, Mr Thomas has acted alone. I think the condition appropriate and I propose to allow it in the plain English form proposed on behalf of Mr Thomas.

50. Condition 20 authorises a DSO to make reasonable requirements of Mr Thomas for engagement in various activities. Some of these activities seem to be unlikely to be achieved, such as employment, education or training. This unlikelihood relates to Mr Thomas’s lack of education, his age and his neurodegenerative condition. However, other pro-social programs may assist Mr Thomas with diversion and social engagement, which in my opinion will help to reduce the risk and also promote his rehabilitation. Given his difficulties with learning and his Dementia, I think the plain English version proposed by the State is satisfactory and should be imposed, although I have made a modification to clarify that is includes activities recommended, rather than merely suggested, by the DSO.

51. Mr Thomas opposed the imposition of condition 23, prohibiting his entry into licensed premises, other than cafes and restaurants, without the prior approval of a DSO. I find it difficult to understand the opposition, given the flexibility inherent in the ability to seek prior approval. Given the abstinence requirement, which is an appropriate requirement to reduce Mr Thomas’s risk, I am of the view a version of condition 23 should be imposed and, while there is not much in it, I prefer the State’s version and have imposed it.

52. Condition 24 requires Mr Thomas to engage in drug and alcohol rehabilitation courses if so directed and the direction is reasonable. This is opposed. I appreciate there may be some difficulties due to his learning disorder and his progressive Dementia. Provided the condition is applied with discretion and sensitivity, Mr Thomas’s participation will assist in reducing his risk and I have imposed the plain English version proffered by the State.

53. Condition 26 relates to association with persons under the influence of illegal drugs or prison inmates. With modification, I have adopted the version proposed on behalf of Mr Thomas.

54. Again with modification, I have adopted the version proposed by Mr Thomas in relation to condition 28, which in some circumstances permits the disclosure of Mr Thomas’s criminal record by the DSO to others in situations relevant to the risk of further offending.

55. Condition 29 requires notification to the DSO within 48 hours if Mr Thomas decides to join a club or organisation. This is opposed as an unreasonable imposition upon Mr Thomas’s liberty. I disagree. Obviously, membership of clubs and other organisations may be relevant to risk and harmful to rehabilitation. I do not regard the plain English version proposed by the State as being an unreasonable encroachment upon his liberty, given that he is subject to an ESO.

56. Condition 31 (in concert with condition 30) prohibits the possession or use of certain weapons. The area of dispute is the terminology. With modifications, I have adopted the State’s plain English version.

57. Condition 33 imposes obligations on Mr Thomas not to interfere with the right of search afforded to the DSO under condition 32. The debate is about terminology, and I have adopted the State’s version.

58. Condition 40 requires Mr Thomas to notify his DSO of the name and address of any health practitioner he consults. This is opposed but provided its terms are limited to his mental state, which informs the relevant risk, I regard it as appropriate. I have redrafted this condition which reflects a plain English proposal of the original condition sought.

59. Condition 42 requires Mr Thomas to advise his DSO if he unilaterally ceased to take or declines to commence taking prescribed medication. Given an untreated mental condition may enhance the risk of commission of a serious offence, I consider the condition reasonable and the State’s plain English version is adopted.

60. For these reasons, my orders are:

61. Under s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is subject to an Extended Supervision Order for a period of two years from the date of the expiration of the Interim Supervision Order currently in force.

62. Under s 11 of the said Act, I direct that the defendant complies with the conditions set out in the schedule to this judgment for the duration of the Extended Supervision Order.

63. Access to the Court’s file in respect of any document is not to be granted to a non-party without the leave of a Judge of the Court after the plaintiff and the defendant have been notified of the application for access by the Registrar, so as to allow them a sufficient opportunity to be heard in relation to the application.

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