State of New South Wales v Thurston

Recent Amendments to the Act

1. The Act commenced in April 2006 as a means for Parliament to address the issue of offenders who may re-offend after the conclusion of their sentence of imprisonment. The context surrounding the enactment of the Act has been addressed comprehensively in many decisions, including: State of New South Wales v Donovan [2015] NSWSC 1254 at [2]-[6]; State of New South Wales v Donovan [2015] NSWCA 280 at [9]-[10].
2. The Act was, at that time, concerned solely with high risk sex offenders (then termed "serious sex offenders"). In March 2013, the Act was amended so as to extend the Court's power to impose supervision and detention orders to high risk violent offenders: Crimes (Serious Sex Offenders) Amendment Act 2013.
3. The Act was recently amended by the Crimes (High Risk Offenders) Amendment Act 2017 ("the 2017 Amendment Act"), which commenced on 6 December 2017 following a review by the Department of Justice in 2016‑2017 of the framework governing the post-sentence supervision and detention of high-risk offenders.
4. Although these proceedings were commenced on 16 October 2017, the Court is required to apply the provisions of the 2017 Amendment Act by virtue of the transitional provision contained in Clause 19(2) of Part 10 of Schedule 2 of the Act.
5. The 2017 amendments were intended to make four principal reforms to the existing scheme. Two of these reforms are relevant for the present matter. First, the 2017 Amendment Act alters eligibility requirements to bring "so‑called generalist offenders" i.e. those who commit both serious violent and serious sex offences, within the scope of the scheme; secondly, the reforms reframe the test for making an ESO or continuing detention order ("CDO"): New South Wales Legislative Assembly, Second Reading Speech, 11 October 2017, p14.

Current Statutory Regime

1. In light of these recent amendments, it will be convenient to set out the statutory regime established by the Act.
2. As a threshold issue, pursuant to s 4 of the Act, to be considered an "offender" to whom the Act will apply the defendant must be a person who is 18 years or above and who has been previously been sentenced to imprisonment following a conviction for a "serious offence." This sentence of imprisonment may have been in the form of full-time detention or intensive correction in the community.
3. In the present matter, the relevant category of serious offence is a "serious violence offence". This term is defined in s 5A of the Act as a serious indictable offence whereby the offender causes death or grievous bodily harm to another person, whether acting intentionally or recklessly; or where the offender attempts to commit, or conspires with, or incites another person to do a like offence.
4. Pursuant to s 5B of the Act, the State must then satisfy the Court that four pre‑conditions have been met before an ESO can be made: 1. first, the State must satisfy the Court that the offender is serving, or has served, a sentence of imprisonment for a serious offence. This sentence may have been served either in custody or under supervision in the community; 2. secondly, the offender must fall within the definition of a "supervised offender", which is found in s 5I of the Act. Relevantly, a supervised offender is an offender who, at the time when the application for an ESO is made, is in custody or under supervision while serving a sentence of imprisonment (in the form of full-time detention in custody, intensive correction in the community, or parole) for one of four specified categories of offences. For present purposes, this includes a "serious offence". The offender may alternatively be under an existing ISO, ESO or an interim or continuing detention order; 3. thirdly, the application by the State for the ESO must be made in accordance with s 5I of the Act. In other words, such an application must only be made in respect of a supervised offender; and 4. finally, the Court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision. This final precondition is discussed further below.
5. Once these four pre-conditions are satisfied, then the Court's discretionary power to make an ESO, and the terms upon which such ESO is to be made, is engaged: s 9 of the Act. In considering whether to make an ESO, the paramount consideration for the Court is the safety of the community: s 9(2) of the Act.
6. Section 9(3) of the Act lists matters to which the Court must have regard in determining whether or not to make an ESO. The Court can have regard to any other matter which it considers relevant.
7. It is necessary to note two other sections of the Act. The first is s 12, which provides that a person who fails to comply with an ESO is guilty of an offence, the maximum penalty for which is a fine of $55,000 or imprisonment for five years or both. The second section to which it is important to have regard is s 21, which provides that proceedings of this kind are civil proceedings to be conducted in accordance with the law relating to civil proceedings. This has the effect that the proceedings are to be determined according to the civil onus - on the balance of probabilities.

Applicable Legal Principles

1. Section 3 of the Act contains two stated objects which "reveal that the legislation is protective rather than punitive in its intent": Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; (2007) 70 NSWLR 448 at [5].
2. The first and primary object of the Act is to ensure the safety and protection of the community. The second stated object is to encourage high risk offenders to undertake rehabilitation: Attorney-General for NSW v Quinn [2007] NSWSC 873 at [10]; Attorney-General for NSW v Winters [2007] NSWSC 611 at [7]; Attorney-General for NSW v Gallagher [2006] NSWSC 340 at [21].
3. The 2017 Amendment Act reinforces the primary purpose of the Act. In the former s 9, the safety of the community was one of a number of mandatory considerations for the Court in determining an application for an ESO. However, s 9(2) as amended provides the following: "9 Determination of application for extended supervision order (1) …. (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court."
4. I note that the former s 5E of the Act imposed a high threshold test before an ESO or CDO could be made in respect of a violent offender. The repealed subsection s 5E(1) was in the following terms: "5E High risk violent offender (1) An offender can be made the subject of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender."
5. Put another way, the Court's power to make an extended supervision order was previously enlivened "if and only if" the offender was a high risk violent offender. As McClellan CJ at CL observed in Gallagher at [34], this "caution" emphasised: "the care with which the Court must approach the question of whether to make orders imposing continuing restrictions, in whatever form, on a person's liberty."
6. The expression "if and only if" no longer appears in the Act, as amended. The fourth precondition noted above, which is found in s 5B(d) of the Act, now in effect functions as the gateway, or operative test, for this Court in making a determination about whether to make an ESO. This precondition may be separated into the following two issues: 1. whether Mr Thurston poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision; and 2. whether the Court is satisfied of the existence such unacceptable risk to "… a high degree of probability".
7. Section 5D of the Act further provides that, in determining the risk posed by the offender, the Court is not required to determine that the risk of an offender committing a serious offence is "more likely than not". The Court of Appeal has observed that this can be a risk which is less than 50%: State of New South Wales v Donovan [2015] NSWCA 280; (2015) 90 NSWLR 389 at [21]; Kamm v State of New South Wales (No 4) [2017] NSWCA 189; (2017) 345 ALR 669 at [130].
8. The terms "serious violence offence" and "unacceptable risk", as well as the standard of a "high degree of probability", have each been the subject of judicial elucidation.
9. Button J observed in State of NSW v Lynn [2013] NSWSC 1147 at [16] that the expression "serious violence offence" is a broad term which captures a wide range of criminal conduct. This conduct is not necessarily "… confined to offences of homicide, or even the intentional infliction of serious violence".
10. The offence of murder, the index offence in this case, undoubtedly falls within the ambit of the term "serious violence offence".
11. In State of NSW v Thomas (Preliminary) [2011] NSWSC 118, R A Hulme J considered the meaning of "unacceptable risk" in the context of high risk sex offenders and observed at [16]ff: 1. that a risk may still be a considered an "unacceptable risk" even though the State does not satisfy the Court that it is more likely than not that a defendant will commit a serious violence offence. As his Honour said: "Put another way, the risk may be less likely than not, but still be an unacceptable risk"; and 2. that a risk would be unacceptable if it was present to such a degree that "…the safety and protection of the community cannot be ensured unless an order is made".
12. These remarks are apposite for a high risk violent offender.
13. The Court of Appeal considered the meaning of "unacceptable risk" in the context of an application for an ESO in respect of a high risk violent offender in Lynn v State of NSW [2016] NSWCA 57. Beazley P (with whom Gleeson JA agreed) said at [49]-[61]: 1. the meaning of the phrase "unacceptable risk" raises a question of statutory construction; 2. the determination of the existence of an unacceptable risk is an evaluative task, which requires a normative context in which to be made; 3. the objects of the legislation may be relevant to the meaning to be given to the provisions of the Act, but those objects cannot control clear statutory language; 4. the preferable approach is to give the words their everyday meaning in the context of the provision in which they appear and having regard to the objects of the Act; 5. in the context of the Act, the evaluation being made by the Court is "… directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection"; and 6. the risk which must be unacceptable is one of the commission of a serious violent offence, if the individual is not kept under supervision.
14. Gleeson JA noted that in the determination of an unacceptable risk, the Court is not permitted to weigh the interests of the offender in personal liberty and privacy against the need to ensure the protection of the community. At [148], his Honour said: "It would subvert the language of the statute if the interests of the offender in liberty and privacy were to be taken into account in the assessment of the threshold of 'unacceptable risk' … There is no 'balancing' exercise involved in the Court's assessment of the threshold of 'unacceptable risk'."
15. As his Honour went on to explain, these considerations are taken into account at a later stage, when the Court is exercising its discretionary power under s 9 of the Act to either make or refuse to make an ESO, or else in the conditions which may be imposed under s 11 of the Act.
16. The Court of Appeal has also considered the meaning of the phrase "a high degree of probability". In Cornwall v Attorney-General for NSW [2007] NSWCA 374 at [21], it said: "The expression 'a degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious … offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of proof of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion 'likely' …"
17. These principles are also set out in Tillman at [27] and State of New South Wales v Turk [2017] NSWSC 705 at [11]-[13].

Index Offence

1. The facts of the index murder offence were recited by Dunford J in his Remarks on Sentence, delivered on 1 November 2002: R v Lamb & Thurston [2002] NSWSC 1025. These facts were also summarised in the judgment of Rothman J in the State's application for an ISO: State of NSW v Thurston at [3]‑[9].
2. On 29 October 2000 Mr Thurston, along with his stepbrother Stanley Joseph Lamb, murdered Terrence Patrick Byrne, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW).
3. On the day of the murder Mr Thurston and Mr Lamb spent most of the day drinking wine and smoking marijuana with a number of other youths in Coledale - which is a suburb of Tamworth. That night, the two offenders met with the deceased in the Granny Munroe Park. The deceased, who had alighted from a taxi nearby and was on his way home, had purchased a bottle of wine from a nearby hotel. He shared some of this wine with Mr Thurston and Mr Lamb. They asked the deceased for another drink and the deceased indicated that he wished to keep the remainder of his wine for the next day.
4. The deceased set out to leave the park. One or both of the offenders decided to rob the deceased of his wine. Mr Lamb punched the deceased. Both offenders then repeatedly kicked and stomped on him. After initially denying any involvement in the murder, Mr Thurston ultimately admitted to participating in the offence. After his arrest, Mr Thurston told his then de-facto wife from the cells that "it was a roll that went wrong": R v Lamb & Thurston at [11].
5. It was Mr Thurston's defence that Mr Lamb was responsible for most of the injuries to the victim. This defence, along with Mr Lamb's pleaded partial defence of provocation, were rejected by the jury.
6. Dunford J in his Remarks on Sentence described the severe injuries of the victim at [12]: "The injuries inflicted on the victim were horrific. The autopsy revealed the presence of multiple blunt force injuries to the head, neck and trunk including extensive bruising to the face and scalp, fractures of the facial bones and skull, and injury to the underlying brain. The injuries to the neck included fractures of the larynx. Ill-defined areas of bruising and numerous abrasions were also present on the upper limbs and trunk, there were numerous fractured ribs on both sides of the chest and bruising of the lungs. There was injury to the heart and to a number of structures around the heart. There was also a small amount of bleeding around the left adrenal gland. The pathologist, Dr Sugo, identified 27 separate lacerations or areas of bruising to the head and neck, fractures of all ribs on both sides, except the first, and the ribcage was in effect crushed. All injuries sustained were consistent with kicking and stomping on the deceased while he lay on his back, on the ground, and it can only be described as a frenzied and vicious assault by two young men on a defenceless man considerably older than themselves."
7. Dunford J was satisfied that while Mr Lamb was the "principal aggressor", Mr Thurston "subsequently played an equally aggressive part" in the attack: at [21]. His Honour sentenced Mr Thurston to a term of imprisonment for the murder of 17 years, commencing 30 January 2001 with a non-parole period of 12 years and 9 months. This sentence was slightly less than the one imposed on Mr Lamb.
8. The Court of Criminal Appeal, by majority, dismissed Mr Thurston's appeal against conviction on 1 July 2004: R v Thurston [2004] NSWCCA 98.
9. Mr Thurston has been eligible for parole since 29 October 2013. Parole was refused on a number of occasions. He was ultimately released from custody to parole on 14 June 2017. His head sentence expired on 29 January 2018.

Other Criminal History

1. Mr Thurston has a lengthy criminal history in NSW and Queensland, with convictions from the age of 13. His first offences of violence began at the age of 16. Other convictions for violence before the index offence include the offences of robbery in company with striking and robbery with wounding in 1992, and convictions for armed robbery in 1996 and assault police in 1997.
2. There are a number of outstanding charges against Mr Thurston in Queensland from the 1990s, before the index offence. Two of these offences are offences of violence; namely armed robbery in company in 1999 and assault occasioning actual bodily harm in January 2000.
3. Mr Thurston offended whilst in custody after committing the index offence. He was convicted in 2001 of assault occasioning actual bodily harm after punching a fellow inmate approximately ten times in the head and face and sentenced by the Burwood Local Court to a fixed term of imprisonment for 6 months for this offence.
4. A Risk Assessment Report prepared by Dr Richard Parker at the request of the Commissioner for Corrective Services NSW on 13 June 2017 noted that Mr Thurston's behaviour in custody had been "poor for most of his sentence". Parker noted an earlier 2013 report, which outlined 29 instances of custodial misconduct involving Mr Thurston between 12 February 2001 and 10 July 2013. Eleven of those incidents involved violence or aggression. Further instances of misconduct occurred throughout the period of 2014 to 2016.
5. On 2 April 2012, Mr Thurston was sentenced by the Wellington Local Court to imprisonment for 3 months following a conviction for assaulting a law officer.
6. In December 2016, Mr Thurston also was noted by a corrections officer to have made threats of violence against another inmate. However, no formal actions were taken against him from July 2016, when he is said to have shown marked improvements in behaviour and attitude. This shift, as Parker notes, coincides with Mr Thurston's decision to enrol in the EQUIPS methadone program in prison from 17 June 2016.

Other Relevant Material

1. Mr Thurston's positive improvements in attitude and behaviour can be observed in the other material before the Court.
2. In the period leading up to the expiration of Mr Thurston's non-parole period on 29 October 2013, a report was prepared by the Serious Offenders Review Council ("SORC"). This report, dated 9 July 2013, noted that in April 2010, SORC recommended a reduction in Mr Thurston's security classification from "A2" to "B" within Wellington Correctional Centre in light of his completion of the Getting SMART and Pathways programs with very good reports, his contact with psychological services and anger management programs, and his recent clean urine tests. Mr Thurston was, at that stage, on the waiting list for the Violent Offenders Therapeutic Program ("VOTP") and had expressed willingness to participate in that program. This recommendation was approved by delegate of the Commissioner.
3. On 6 September 2011, SORC recommended that Mr Thurston remain as a "B" classification, but move to Parklea Correctional Centre to facilitate his participation in VOTP. These recommendations were approved.
4. A VOTP treatment report dated 30 July 2012 and prepared by Christina Stamoulis (Forensic Psychologist) stated the following conclusions: "Overall, Mr Thurston displayed a genuine motivation and mature attitude toward the program. Despite he [sic] apparent literacy and comprehension difficulties, he made efforts to complete program tasks in a timely manner and to the best of his ability. Through the program Mr Thurston identified the cognitions that were supportive of violence, criminality and substance abuse and he was able to generate appropriate challenges and apply them independently. Mr Thurston appeared to gain a greater insight into the victim issues and developed perspective taking abilities … He generated a self-management plan that included both intervention and prevention strategies to assist him to manage his risk factors and prevent relapse."
5. Following Mr Thurston's successful completion of VOTP, SORC in August 2012 recommended that his security classification be downgraded from "B" to "C1" and that he be transferred to Broken Hill Correctional Centre. This recommendation was also approved. SORC noted that after Mr Thurston's completion of VOTP, he acted as a mentor for other inmates and had obtained "very good" reports from VOTP maintenance. His completion of relevant further programs to address offending, including Getting SMART, CALM and Anger Management (NZ), were also noted.
6. In April 2013, SORC's recommendation that Mr Thurston remain a "C1" classification at Broken Hill Correctional Centre was approved. SORC's report noted that Mr Thurston had incurred offences in custody in January 2013 for fighting and failing a prescribed urine test. At that stage, Mr Thurston had been assessed as unsuitable for the Intensive Drug and Alcohol Treatment Program ("IDATP"). He had also declined a referral to CALM, but had successfully completed the programs noted above, as well as Managing Emotions, SMART Recovery, Hey Dad and the Prison Employment Program.
7. Mr Thurston was also noted to have completed approximately nine vocational courses, including his Certificate 1 in Visual Art and Contemporary Craft, Certificate 1 in access to work and training, Certificate 1 in Traditional Aboriginal Culture, CSI Hygiene Operations and two workplace safety courses (AEVTI Workplace Safety and CSI Working Safely).
8. On 18 June 2013, a progress report noted that Mr Thurston had two negative case note entries in 2013 for minor (and non-violent) misconduct in the form of disobeying directions. The Report also noted that he was currently managed on an inmate management contract as a result of previous misconduct and failed urine tests. This contract required him to maintain his employment and educational training; not receive negative behavioural reports; not refuse to give urine samples or return further positive samples and to abide by other behavioural standards. Mr Thurston was also noted as a person of interest in regards to drug and standover activity in Broken Hill Correctional Centre.
9. SORC's report of 9 July 2013 did not recommend that the State Parole Authority ("SPA") consider Mr Thurston for release on parole, as at that point in time he lacked both plans for accommodation and support in the community.
10. A report of 29 July 2013 by Elizabeth Smith, Community Corrections Officer ("CCO"), Broken Hill Office, also noted that Mr Thurston was not recommended for release on parole due to his failure to address his attitude and offending behaviour, as evidenced by his institutional misconduct and other records. Ms Smith recommended that Mr Thurston would benefit from further VOTP and substance abuse intervention in custody, as well as further time to benefit from employment and educational opportunities to assist his reintegration into the community.
11. A progress report dated 24 July 2014, from Katherine O'Grady, CCO, Wellington Community Corrections Unit, did not recommend parole due to Mr Thurston's lack of suitable accommodation in the community, the fact that he had yet to participate in an external leave plan and, again, the fact that his community reintegration would be facilitated by further time to access educational and employment opportunities in prison.
12. A Supplementary Report by the SORC on 5 August 2014 noted that, after being transferred to John Morony Correctional Centre in order to undertake the IDATP, Mr Thurston had self-harmed and threatened suicide if he was not returned to Wellington Correctional Centre. He was determined as being no longer suitable to undertake IDATP and was returned to Wellington. He remained classified as "C1". The report also noted that, since the previous report of SORC, Mr Thurston had failed two urine sample tests and had refused to provide a sample on another occasion.
13. A SORC report dated 21 July 2015 also did not recommend Mr Thurston be released on parole as Mr Thurston had still not yet participated in an external leave plan. The report further noted that Mr Thurston had incurred five offences in custody since the previous report, including three offences of failing drug tests, one offence of fight or other combat, and one offence of failure to comply with correctional centre routine.
14. In an interview with Mr Thurston on 25 September 2014 cited in the 2015 SORC report, Mr Thurston had denied that he continued to use alcohol, and said that he didn't have a drug problem. He stated that although he "isn't out chasing drugs every day", he has used drugs in prison on occasion to "calm down" and when he is "frustrated." The report also noted that SORC had, several months earlier, recommended that Mr Thurston be transferred to Broken Hill Correctional Centre, where he had previously sought to move to be closer to family. The Commissioner had approved this transfer on 15 May 2015.
15. A case note from Alesha Gordon, VOTP Psychologist, dated 3 July 2015, noted positive changes in Mr Thurston, including his developing motivation to abstain from drug use, his recent efforts to put his name forward for educational and employment opportunities and greater self-reflection.
16. On the basis of the SORC report of 2015, and with similar reasons as those expressed by SORC, the SPA on 16 September 2015 refused to release Mr Thurston on parole.
17. SORC, in a report dated 16 August 2016, again did not recommend that Mr Thurston be released on parole, noting his continued drug problem and his lack of approved accommodation upon his release. The report noted that Mr Thurston was transferred from Broken Hill to Wellington Correctional Centre in December 2015 due to his role in instigating racial problems at the Broken Hill Correctional Centre as part of a "gang of Aboriginal inmates who were involved in stand-overs, violence and distribution of contraband, [and] assaulting three other inmates". Mr Thurston was also recorded to have incurred three offences since the previous SORC report, namely failing drug tests, intimidation, and unlawful deliver/receipt of an article.
18. The 2016 SORC report also noted that Mr Thurston had recently commenced the EQUIPS Addiction program, and had started taking methadone on 26 July 2016. A case note of Ms Gordon dated 19 July 2016 recorded that Mr Thurston viewed methadone as a "good thing for him" because he had "realised he was getting nowhere" by "blaming everyone else" for his lapses. He had expressed that he felt happier and "more laid back" since commencing methadone treatment.
19. Ms O'Grady of Wellington Community Corrections Unit, in a pre-release report dated 28 July 2016, did not recommend Mr Thurston for release on parole due to Mr Thurston's lack of insight into the need to re-integrate back into the community, as well as his resistance to participating in pre-release leave programs. Similar views were expressed by Helen Dowling, the District Manager of the Wellington Community Corrections Unit, on 28 July 2016.
20. In its report dated 14 March 2017, SORC noted that Mr Thurston had not incurred any offences in custody since the previous report, and was "feeling settled and positive". The report cited Ms Gordon's report and noted that Mr Thurston had described his partner and approved co-resident, Ms Harris, as "very helpful and supportive."
21. The report also referred to the views of Lyndon Davis, a CCO in Wellington, who noted on 13 March 2017 that he would be recommending Mr Thurston's release on parole. Mr Davis had come to this decision in part because Mr Thurston now had suitable accommodation in Dubbo with Ms Harris, and because Dubbo is an area with significant services and support systems in place, including access to a methadone clinic, an Aboriginal men's group, substance counselling and educational and employment opportunities.
22. SORC ultimately recommended that Mr Thurston be released on parole for the remainder of his sentence in light of his "most recent positive behaviour."
23. On 30 May 2017, the SPA authorised and directed that Mr Thurston be released on parole. He was released from Wellington Correctional Centre to parole on 14 June 2017. He was subject to standard conditions, as well as conditions requiring him to: 1. remain abstinent from alcohol or prohibited drugs and substances, undertake or maintain alcohol and drug counselling and programs if directed, and make himself available for testing if directed; 2. undergo psychological assessment and counselling (including VOTP Maintenance) as directed; 3. avoid any contact or communication with the victim's family, or his co‑offender; and 4. abstain from visiting the local government areas of Tamworth, Armidale, Port Macquarie and Inverell, and the Mid Coast Council.
24. Mr Thurston appears to have maintained compliance with all the conditions of his parole. The report of his CCO Lyndon Davis of 30 August 2017 noted Mr Thurston's compliance with his methadone regime and the fact that numerous random drug analyses each returned negative results. Ongoing home visits, including unannounced after-hours visits, have all been conducted without issue. Mr Davis also described Mr Thurston's "positive attitude" when coping with the difficult challenge of his aunt passing away in August 2017. Further, Mr Davis expressed the following view on Mr Thurston's progress: "Perhaps the most outstanding part of Mr Thurston's supervision has been his attitude towards the offence and his time spent in custody. Mr Thurston has displayed what appears to be genuine remorse for his part in the offence, and he is able to recognise the impact his behaviour has had upon the victim, the victim's family, his own family, and the community as a whole. He stated the only way he can begin to make up for his transgressions is to "live a good life, reconnect with my family and reconnect with the community." At this juncture it seems Mr Thurston has made every effort to adapt to a normal, lawful community life."
25. As noted above, Mr Thurston has been under an ISO since 7 December 2017. There have been no noted issues with his compliance with the conditions associated with that ISO.

Reports of Drs Parker, Adams and O'Dea

1. The reports dated 13 June 2017 (Dr Richard Parker), 31 January 2018 (Dr Jonathon Adams) and 1 February 2018 (Dr Jeremy O'Dea), address Mr Thurston's psychiatric profile and personal background. Each report also expresses the author's opinion, based upon various risk assessment instruments administered to Mr Thurston, with respect to the likelihood that he will commit further serious violence offences.
2. It is clear from each of the reports that Mr Thurston has a history of material deprivation and exposure to violence. Although Mr Thurston has described his childhood in positive terms, he has also reported a highly dysfunctional family environment in which he was exposed to parental alcohol abuse, domestic violence and physical abuse. As a teenager, he was homeless for 18 months in Sydney and during this time developed a persistent drug habit. The reports also note that Mr Thurston's levels of literacy are relatively low due to sporadic attendance at school. He has since improved his literacy and numeracy through completing various educational programs whilst incarcerated.

Report of Dr Parker

1. Dr Parker, Senior Psychologist in the Serious Offenders Assessment Unit, interviewed Mr Thurston at Wellington Correctional Centre on 6 June 2017 at the request of the Commissioner for Corrective Services. He utilised a tool of risk assessment, namely the Violence Risk Appraisal Guide - Revised ("VRAG-R"), to provide information about the likelihood and severity of the risk posed by Mr Thurston. Dr Parker's report also notes Mr Thurston's previous scores on two other metrics: the Violence Risk Scale ("VRS"), which was conducted by a Corrective Services psychologist on 19 February 2010, and the Level of Service Inventory - Revised ("LSI-R"), which was conducted whilst Mr Thurston was in custody on 21 July 2016.
2. Dr Parker found that on the VRAG-R, an assessment tool developed to assess the risk of violent re-offending, Mr Thurston's score was equal to, or higher than, the score of at least 98% of the construction sample. He noted that 76% of violent offenders with a similar score re-offended violently within five years, and 87% within twelve years. The construction sample was not described by reference to its characteristics.
3. Dr Parker's report also found that on the LSI-R, an assessment tool related to general re-offending, Mr Thurston's score of 38/54 was assessed as medium/high risk for general re-offending. He noted that 67% of offenders in NSW who were assessed as medium/high risk re-offended and were returned to Corrective Services within two years.
4. On the VRS, which again, was conducted in 2010, Mr Thurston's risk of violent re-offending was rated as high. Major risk factors noted were: lack of work ethic, association with criminal peers, interpersonal aggression, emotional control, violence during institutionalisation, substance abuse and violence cycle.
5. Of the results of these actuarial tools, Dr Parker commented that the calculated score "… can then be associated with specific group-based probabilities of recidivism … and have moderate predictive accuracy".
6. Overall, Dr Parker found that these actuarial instruments placed Mr Thurston "at a high risk of violent recidivism and a medium/high risk of general recidivism". However, as Dr Parker acknowledged, it is not scientifically possible to accurately predict whether or not an individual will or will not re-offend. He also accepted that violent behaviour is the result of the individual interacting with their immediate environment.
7. Dr Parker also acknowledged that actuarial instruments which mainly use historical factors can be insensitive to changes over time. He also accepted that the actuarial instruments "… cannot determine whether this particular individual will actually reoffend".
8. Dr Parker opined that Mr Thurston demonstrated a number of "criminogenic needs" - which are dynamic risk factors believed to have a causal role in offending, and which, if appropriately addressed, should reduce the risk of future violent offending. These needs are: associating with criminal/anti-social peers, substance abuse, and criminal thinking - namely, the normalisation of violence, rejecting society's role in setting laws, using pre-emptive violence to respond to perceived hostility, and other thought patterns which may result in violence.
9. Dr Parker suggested that Mr Thurston's propensity towards violence is triggered by: "….a combination of underlying aggressive cognitions and the disinhibiting effect of mind-altering substances - the former provides the motivation for violence, and the latter represses the inhibitions against actual violence."
10. However, he went on to opine that a number of factors ameliorated Mr Thurston's risk of re-offending, including: 1. his participation in the methadone program; and 2. his current age - 41 years - which meant that he was well past the peak age for violent offending.
11. Dr Parker was also careful to note that the various actuarial instruments used by him adopted a less serious definition of recidivist offending including violent re‑offending or violent behaviour, than the definition of "serious violence offence" used in the Act. Put differently, a serious violence offence is a smaller sub-set of violent re-offending or violent behaviour identified in the tools used.
12. Dr Parker ultimately found that Mr Thurston is likely to need, and likely to benefit from, a period of strict monitoring to implement and consolidate the skills and attitudes he learned in VOTP. He advised that this would assist in helping Mr Thurston to avoid gravitating to anti-social acquaintances and resuming his prior lifestyle, and instead facilitate his development of a "pro‑social lifestyle in the community".

Report of Dr Jonathan Adams

1. Dr Adams, an independent psychiatrist appointed by the Court, assessed Mr Thurston on 23 January 2018, and prepared a risk assessment report dated 31 January 2018. He was cross-examined on 19 March 2018.
2. Dr Adams' report began by addressing Mr Thurston's psychiatric history, history of drug and alcohol abuse, family history and other personal history. He noted statements from Mr Thurston in respect of turning to illicit substances and alcohol from a very young age in order to control his emotional disturbance, and recorded that Mr Thurston reports being prescribed various anti-depressants, as well as Olanzapine, a mood stabiliser and anti-psychotic drug, in the period after the index murder offence.
3. Dr Adams' report also detailed Mr Thurston's current living situation in Dubbo with his partner, Ms Harris, who has six children from a previous relationship, three of whom reside with them. Mr Thurston reported having occasional verbal, but non-physical, altercations with the children due to their own illicit substance abuse and attitude towards their mother. On cross-examination, Dr Adams accepted that it stood to Mr Thurston's credit that he was able to address these issues without resorting to violence.
4. Like Dr Parker's report, Dr Adams' report addresses the positive changes in Mr Thurston's outlook and conduct since his release from custody. Mr Thurston reported an improved mood; abstinence from illicit substances and alcohol; regular contact over the phone with his drug and alcohol worker; a stable and supportive relationship with his partner; regular contact with the Aboriginal Employment Support Service; consistent work as a labourer; the completion of a music course at TAFE; the attainment of a construction license, a forklift license and a railway license; regular contact with his CCO; ongoing participation in an Aboriginal men's group; enjoyment of exercising and socialising with family members; and avoidance of anti-social acquaintances.
5. Dr Adams notes that when asked about the impacts of a possible ESO, Mr Thurston "initially thought this was a positive move as he saw several benefits in the support he had been offered". However, he also observed that more recently Mr Thurston has opposed an ESO due to concerns about the restrictions an ESO would place on his ability to work on the railways or visit his daughters in Queensland, and his belief that he does not require an ESO in light of his stability and substance abstinence over the last seven months. Mr Thurston told Dr Adams that if an ESO was not implemented he would nonetheless continue with all avenues of formal support available, with the exception of his CCO. On cross-examination, Dr Adams agreed that a number of the aspects of Mr Thurston's existing management plan could be continued in the absence of any ESO.
6. Dr Adams assessed Mr Thurston using a commonly used violence risk assessment tool, namely the Historical Clinical Risk Management 20, Version 3 ("HCR-20 V3"). He cautioned that his assessment of the violence risk presented by Mr Thurston is necessarily limited by the fact that he only assessed him once. This assessment tool contains ten historical risk factors, five current risk factors and five future risk factors.
7. Dr Adams recorded that by its nature, HCR-20 V3 was not exhaustive, and that as a risk assessment tool, it cannot be used to estimate the specific likelihood or absolute probability that an individual will commit violence in the future, nor that he may commit a serious violence offence.
8. Dr Adams concluded that Mr Thurston continues to manifest difficulties with insight in some respects, but has not recently manifested any violence risk factors. However, he did say: "It is evident that the majority of Mr Thurston's violence risk factors are historical. Nevertheless, it is important to note that many of these violence risk factors are not purely historical and can certainly become a present day problem, particularly factors such as relationship difficulties, employment problems, substance use, major mental disorder, and treatment/supervision response issues."
9. On the issue of psychiatric diagnoses, Dr Adams suggested that Mr Thurston manifested a number of factors consistent with a diagnosis of anti-social personality disorder but that such a diagnosis was not available to be made. He also expressed the opinion that Mr Thurston has likely experienced episodes of major depression and has likely also experienced substance‑induced psychotic disorders in the past.
10. Dr Adams concluded that as drugs and alcohol were a critical factor when considering Mr Thurston's violence risk, drug and alcohol rehabilitation should continue as a key aspect of Mr Thurston's management and treatment plan in the longer term. He recommended, in the short to medium term, that this should take the form of psychological therapy with regular follow-ups with a drug and alcohol worker, along with compliance with methadone and regular screening tests. Pharmacotherapy could be considered as an additional treatment option in the future if Mr Thurston's craving for illicit substances and alcohol increased.
11. In oral evidence, Dr Adams said that Mr Thurston's risk factors for violence were not currently present. He said that was so because of the presence of, in particular, four things: a stable relationship, employment, drug abstinence and taking advantage of the support being offered under his current comprehensive management plan.
12. He also accepted that a number of factors which the evidence revealed to be present, such as compliance with the methadone program, provided a positive indication of the reduction in violence risk factors and a successful, although necessarily incomplete, rehabilitation.
13. Dr Adams also agreed that many of the elements of support which Mr Thurston was receiving could be acquired by him in the community regardless of whether or not he was subject to an ESO.

Report of Dr O'Dea

1. Dr O'Dea, an independent forensic psychiatrist, interviewed Mr Thurston on 12 January 2018. His report addressed substantially the same background and personal history as the reports of Drs Parker and Adams. It is unnecessary to repeat that material here. However, Dr O'Dea's report canvassed in greater detail the criminal histories of each of Mr Thurston's siblings, and the acknowledgement of Mr Thurston that he was subject to physical and sexual abuse when he was a child, and a sexual assault whilst he was held in custody at a young age.
2. Dr O'Dea did not diagnose Mr Thurston as suffering from a major psychiatric illness but, like Dr Adams, he noted Mr Thurston's extensive history of substance use disorder as well as demonstrated anti-social traits.
3. Like Drs Parker and Adams, Dr O'Dea emphasised the link between Mr Thurston's history of substance abuse and his future risk of violent re‑offending if he were to relapse. He opined that if Mr Thurston were to remain abstinent from alcohol and illicit substance use in the long term, he would consider that, from a psychiatric perspective, the risk of his engaging in further violent behaviour in the community "could and would be adequately and appropriately managed". Dr O'Dea said that abstinence from alcohol or illicit drug use was likely to be the single most effective intervention in assisting Mr Thurston to manage his risk of re-offending.
4. Ultimately, Dr O'Dea expressed the view that Mr Thurston's risk of relapse and his associated risk of re-offending violently "remains long term, and of at least a further 3 years duration." He accordingly posited that the risk management program to be implemented should likewise be of at least three years duration, with regular monitoring and reviews every six to 12 months.
5. Dr O'Dea said that he regarded the risk of Mr Thurston engaging in further violent behaviours in the community as being "… significantly high". Dr O'Dea also thought that Mr Thurston would pose a "significant and potentially unacceptable risk of committing a further serious violence offence in the community in the long term". However, the specific basis for this conclusion was not apparent from his report unless it is to be inferred in his conclusion from Mr Thurston's past history and identified risk factors.
6. Dr O'Dea's oral evidence largely confirmed his written report.

Threshold Question: Supervised Offender

1. The first question which must be determined is whether, within the meaning of the current s 5I of the Act, Mr Thurston is a "supervised offender". This is a generalised term that replaces the specific terms "supervised sex offender" (in the former s 5I) and "supervised violent offender" (in the now repealed s 5J).
2. It was conceded by Mr Thurston in his submissions at the preliminary hearing that he has served a sentence for a serious violence offence, being murder. He also conceded that he fell within the definition of a supervised violent offender. For present purposes under the terminology of the 2017 Amendment Act, I am satisfied that he is a supervised offender.
3. The proceedings were commenced on 16 October 2017, at which time Mr Thurston was on parole and under supervision for the offence of murder. That offence, which is contrary to s 18(1)(a) of the Crimes Act, falls within the definition of a serious violence offence in accordance with s 5A of the Act.
4. Accordingly, Mr Thurston was, at the time when the Summons was filed, a supervised violent offender, and the State was entitled to seek orders of the kind set out in the Summons.

Threshold Question: Unacceptable Risk

1. Section 5B of the Act requires that before the Court can make an ESO, the Court needs to be satisfied to high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
2. In making this determination, s 5D of the Act provides that the Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
3. Although the legislative provisions are different since the 2017 amendments, the wording of this threshold question is the same as that which used to exist in s 5E prior to the amendments.
4. There is no reason, as it seems to me, not to apply the existing authorities I have earlier addressed on this phrase.
5. Therefore, I must be satisfied that the risk, which must be unacceptable, is one of Mr Thurston committing a serious violence offence, if he is not kept under supervision: Lynn at [55]. The evidence, which I have reviewed above, whether related to historical factors, or more recent dynamic factors, all points to a relative risk which can be described as significant, that Mr Thurston will be likely to re-offend at some time in the future. By reference to a similar cohort, he has a high likelihood of re-offending.
6. The actuarial tools used by the experts, however, do not consider whether that relative risk of re-offending or violent re-offending would constitute a serious offence as that term is defined in the Act. Nor can those tools justify a conclusion specific to Mr Thurston that he is likely to commit any offence at all, let alone a serious violence offence as that term is defined in the Act.
7. It is convenient to remind oneself at this point what a "serious offence" is. After all, it is the unacceptable risk of committing another serious offence of which this Court has to be satisfied to a high degree of probability. A serious offence includes a serious violence offence, which is defined in s 5A of the Act as a serious indictable offence within the meaning of the Crimes Act, namely an indictable offence punishable by imprisonment for life, or for a term of five years or more, and which is one constituted by a person engaging in conduct that causes the death of another person, or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death or grievous bodily harm. As well, if one attempts to commit such an offence or conspires with or incites another person to commit such an offence, then that would itself constitute a serious violence offence.
8. A serious violence offence is not limited to specific identified offences under the Crimes Act but can include any offence of which the description above forms an elemental part. However, the elements specified serve to exclude some offences which may carry a term of imprisonment of 5 years or more - for example, the offence of assault occasioning actual bodily harm.
9. In the entirety of Mr Thurston's past criminal history, the only offence which would fall within the definition of a serious violence offence in the Act is the index offence of murder. None of the other offences involved the infliction, either with an accompanying relevant intention, or else the necessary degree of recklessness, of grievous bodily harm.
10. Whilst I accept that the actuarial tools, based largely on historical factors, predict that Mr Thurston falls into a cohort who have a high rate of recidivist offending, and that patterns of violent offending follow a similar path to recidivist offending generally, none of the actuarial risk instruments enable a firm conclusion to be drawn about the risk of Mr Thurston committing a serious violence offence.
11. In considering whether this Court is satisfied about Mr Thurston's risk of committing another serious violence offence, the Court is necessarily engaged in prediction about a future event. In the current circumstances, where a person has in the past committed a serious violence offence, it can always be said, or perhaps feared, that that person will again commit such an offence. After all, it is a truism that a criminal always returns to the scene of a crime, that is, that a criminal will, or is at risk of, resuming their previous criminal lifestyle.
12. However, it is also necessary here to keep in mind that Mr Thurston is now significantly more mature than he was at 25 years of age when the index offence was committed. As well, he has spent a considerable period, over 16 years, in custody. Such a period will inevitably have an impact upon a person's tendency to engage in further criminal conduct. A sentence of such length is imposed, in part, to deter an individual from committing further similar criminal offences. It is also imposed for the purpose of promoting the rehabilitation of the offender: s 3A Crimes (Sentencing Procedure) Act 1999.
13. The fact that Mr Thurston has served such a lengthy term of imprisonment for the identified purposes cannot be ignored in any assessment of his future conduct.
14. As well, in making the assessment, the Court does so as at the time of the hearing. In this case Mr Thurston is living in the community and he has taken that opportunity to advance his rehabilitation by having a settled domestic relationship and taking advantage of support available in the community.
15. The exercise of prediction of future behaviour requires the Court to assume that an ESO is not in place. But there is no reason to engage in the prediction in isolation from the fact that Mr Thurston is engaged presently with support services and that those services, but for the supervision of his parole officer, will be available for him to access into the future. In fact, I am satisfied on the probabilities that he will continue to access and receive assistance from these services.
16. It would, of course, clearly be impossible or close to impossible to find that there is no risk at all that Mr Thurston, or any other previous offender, will commit another serious offence. Such a finding would be surprising and contrary to the usual construct of a risk assessment. The use of the word "unacceptable" in the Act to qualify the level of risk involves a notional risk matrix where an assessment is made of the probability of a serious violence offence occurring and the severity or seriousness of the outcome of the offence, that is to say, the gravity of the risk.
17. As Harrison J has said in State of NSW v Pacey [2015] NSWSC 1983 at [43]: "A very high risk of something which is insignificant, or a very low risk of occurrence of something that is significant are both risks of similar or corresponding proportions, but neither risk could be considered unacceptable."
18. As well, I keep in mind that Beazley P said in Lynn (see [31] above): "that the evaluation upon which I am engaged is not directed to guaranteeing the safety and protection of the community but, rather, to securing it from harm."
19. Having regard to this discussion, the evidence which would enable an assessment of the likelihood, or probability, that Mr Thurston will commit a serious violence offence is spare. The Court is asked to extrapolate from the various assessments undertaken by the experts which are not specifically addressed to the legislated task of the Court.
20. Accepting that a serious violence offence involves an outcome, by definition, which is of gravity, I am unable to conclude that any risk of Mr Thurston committing such an offence is an unacceptable one. I am unable to conclude from the evidence that there is any likelihood such an offence will occur. In fact, the evidence persuades me to the contrary, namely, that the risk of Mr Thurston committing a serious violence offence is most unlikely and is quite small.
21. Dr Parker's observation that Mr Thurston's current age of 41 years meant that he was well past the peak age for violent offending is also of considerable significance in this assessment of unacceptable risk.
22. In those circumstances, as it seems to me, the case advanced by the State does not satisfy the Court to a high degree of probability, that Mr Thurston poses an unacceptable risk of committing a serious violence offence.
23. My conclusion in this respect is strengthened by a number of other factors which weigh against Mr Thurston committing another serious violence offence.
24. First, Mr Thurston has demonstrated an ability to abstain from drinking alcohol for at least the last two years, and has not breached any parole or ISO conditions requiring him to maintain this abstinence. In light of the fact that the index murder offence, and possibly the vast majority of his earlier offending, was perpetrated whilst he was intoxicated, this is a factor which goes some way in satisfying the Court that the risk of Mr Thurston committing a further serious violence offence is not an unacceptable one.
25. Mr Thurston has continued to engage with a drug and alcohol counsellor, and it was conceded by the State, consistently with the expert evidence, that this institutional support could continue without the making of an ESO.
26. Secondly, Mr Thurston has, since his completion of EQUIPS in mid-2016, wholly complied with a methadone regime. He has abstained from using illicit drugs during this period. He is well-established on the methadone program, and has insight into its positive effects upon him and his behaviour. In Dr O'Dea's view, abstinence from alcohol or illicit drug use was likely to be the single most effective intervention in assisting Mr Thurston to manage his risk of re-offending. This is another significant factor which I view as pointing away from Mr Thurston committing another serious violence offence.
27. Thirdly, evidence before the Court showed that Mr Thurston has established and maintained strong support systems, including a positive and stable relationship with his partner Ms Harris. He has also engaged with formal avenues of support in Dubbo such as the Gargamin Aboriginal Men's Group and substance counselling. He has also been employed, and has ongoing employment arrangements in place. This is a stabilising factor of significance, telling against a likelihood of committing a further serious violence offence.
28. Finally, the evidence also demonstrated that Mr Thurston has not reacted violently upon being confronted with environmental stressors since his release on parole into the community. For instance, Mr Thurston has been able to manage his anger and refrain from physically 'lashing out' when dealing with difficult interpersonal conflict at home in the form of verbal disagreements with the adult children of his partner, Ms Harris. Although Mr Thurston on occasion strongly disagrees with the way Ms Harris' children treat her, he has not resorted to any violence in these situations. Dr Adams accepted that Mr Thurston's ability to exercise restraint in this situation was significant. I regard this episode as an objective demonstration of Mr Thurston's rehabilitation.
29. It follows that a consideration of the whole of the evidence does not allow a conclusion to be drawn of an essential pre‑condition for the making of an ESO under s 5B(d) of the Act. In short, the Court is not satisfied to a high degree of probability that Mr Thurston poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
30. I would note that even if I were to be satisfied that the threshold requirement in s 5B(d) had been established, I would be permitted to take into account the interests of Mr Thurston to liberty and privacy at this stage of the analysis in the determining of conditions to attach to an ESO: Lynn at [149].
31. As Wilson J in State of New South Wales v Sines (No 3) [2017] NSWSC 985 has observed, at [47]: "The imposition of particular conditions, and the assessment of the duration of the order, must be determined in light of the general principle that the defendant's liberty should be constrained to no greater extent than is warranted, having regard to the purposes of the Act and the evidence of his personal circumstances."
32. If an ESO were made on the conditions sought, it would be likely have a detrimental effect on Mr Thurston's ability to maintain his employment. Mr Thurston has secured a job with the railways, which would require him to, on occasion, travel interstate. As the various psychiatric reports before the Court observed, securing and maintaining stable, long-term employment is a positive prognostic indicator. An ESO would also affect Mr Thurston's ability to visit his children who reside in Queensland. It would be, on one view, counter‑productive to put in place an ESO which would have the effect of impeding Mr Thurston's access to these stabilising factors.
33. Although I do not need to, and I do not, make any determination of the kind called for in s 9 of the Act, it is by no means clear on the evidence before the Court, even if the threshold specified in s 5B(d) of the Act was satisfied, that it would be an appropriate exercise of the Court's discretion to have imposed an ESO either on the terms sought, or at all.
34. Without detracting from the conclusion which I have reached, it is desirable to draw attention to a couple of features of this case.
35. First, the sentencing Judge envisaged that Mr Thurston would spend 4 years and 3 months on parole. As it happened, he spent only 9½ months on parole. The purpose of parole is to supervise and support the re-integration of an offender into the community prior to the end of their sentence. However, an ESO is not a substitute for, nor to be regarded as, a substitute for a parole order. Put differently, it cannot be expected that this Court will make an ESO where parole has not been granted, or else an inadequate period of parole has been determined, and for that reason an individual's re-integration into the community or rehabilitation is incomplete or inadequate.
36. Secondly, an order for an ESO by this Court is not made automatically on request by the State. Careful attention must be paid in the evidence to the statutory preconditions and requirements of the legislation. In particular, a question arises as to whether the requirements of s 9(3)(d) of the Act are adequately addressed by any of the standard actuarial risk tools commonly relied upon by the State in applications such as this one.
37. Because I have found that I am not satisfied to a high degree of probability that Mr Thurston poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO, it follows that the Court must dismiss the State's application.

Orders

1. I make the following orders: 1. Application dismissed. 2. Plaintiff to pay the defendant's costs.

Amendments 22 May 2018 - Formatting issues - various paragraphs 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: 22 May 2018