State of New South Wales v Toms

LEGISLATION CITED : Crimes (Serious Sex Offenders) Act 2006

State of New South Wales v Hayter [2007] NSWSC 983 CASES CITED : State of New South Wales v Tillman [2007] NSWCA 119 Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327 Cornwall v Attorney General for New South Wales [2007] NSWCA 374

PARTIES : State of New South Wales (Plaintiff) Cecil Hector Toms (Defendant)

COUNSEL : Ms A Katzmann SC; Ms NL Sharp (Plaintiff) Mr PM Strickland SC (Defendant)

SOLICITORS : Crown Solicitor's Office (Plaintiff) Office of the Legal Aid Commission (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2008/25297 State of New South Wales v Cecil Hector Toms

JUDGMENT (on preliminary hearing under s.7 Crimes (Serious Sex Offenders) Act 2006 ) 1 JOHNSON J: By Summons filed on 8 October 2008 the Plaintiff, the State of New South Wales, makes application for orders under the Crimes (Serious Sex Offenders) Act 2006 ("the Act") with respect to the Defendant, Cecil Hector Toms. 2 The Defendant is presently serving a sentence of imprisonment which will expire by effluxion of time on 19 December 2008. 3 The Summons seeks an order pursuant to s7(4) of the Act appointing psychiatrists to conduct examinations of the Defendant and directing the Defendant to attend upon those examinations. It is that application which is proceeding today as a preliminary hearing under s7 of the Act. 4 The Summons seeks, as final relief, the making of an extended supervision order under s9 of the Act upon conditions nominated in the Summons. The Plaintiff does not seek, with respect to this Defendant, the making of a continuing detention order under the Act. 5 In accordance with s6 of the Act, the Plaintiff has filed and served a volume of material as supporting documentation on the application. 6 At the commencement of the preliminary hearing today, senior counsel for the Defendant, informed the Court that the application under s7, for appointment of psychiatrists and subsequent examination, was not opposed. Since the Defendant (who, of course, is in custody) has arrived at Court, Mr Strickland SC has informed the Court that the Defendant consents to the making of that order. This, of course, is without prejudice to the position that the Defendant may take at the final hearing for relief under s9. 7 It remains a matter for this Court to determine whether the s7 statutory criteria have been satisfied. In this respect, I agree with the approach of Price J in Attorney General for the State of New South Wales v Hayter [2007] NSWSC 983 at [4]. That process, however, is facilitated by the fact that there is no controversy between the parties to be resolved in this respect. Rather, it remains for the Court to consider the supporting documentation tendered on the application and then apply the test under s7(4) of the Act.

Evidence on Application 8 The Plaintiff has tendered on the application a range of documentation and read a number of affidavits. These include the affidavit of Dr Christopher John Lennings affirmed 7 October 2008. The affidavit of Dr Lennings, a psychologist, is relied upon by the Plaintiff as evidence satisfying the requirement in s6(3)(b) of the Act. 9 In addition, the Plaintiff has read two affidavits of Joanna Cheng Cheng Wong, both affirmed 7 October 2008. The first affidavit, comprising some 70 pages, sets out a range of factual matters concerning the Defendant on this application. Exhibited to that affidavit, and separately marked as exhibits on this application, are three volumes of documents (admitted as Exhibits JCM1, JCM2, JCM3) which contain a substantial volume of primary documentary material, which was supplied to Dr Lennings. The second affidavit of Ms Wong relates to certain procedural steps undertaken by the Plaintiff in preparation for the application, including the gathering of documents.

The Statutory Scheme 10 The objects of the Act are set out in s3 which states, in summary, that the primary object of the Act is to provide for extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community; a further object being the encouraging of serious sex offenders to undertake rehabilitation. 11 On the present application, by way of preliminary hearing, the Court must consider whether, for the purposes of s7(4), it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order with respect to the Defendant. If so, the Court must make orders appointing psychiatrists or psychologists to undertake examinations. If, following the preliminary hearing, the Court was not satisfied in accordance with s7(4), the Court must dismiss the application: s7(5). Thus, it falls to the Court to apply that test in the circumstances of this case. 12 In Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119 at [98], the Court of Appeal emphasised that the task of the Court, at the preliminary hearing stage, was not to weigh up the documentation or predict the ultimate result or to consider what evidence the Defendant might call at the final hearing. It has been said that the test to be applied at this stage is analogous to the prima facie case test applied by a magistrate as part of committal proceedings: Attorney General for the State of New South Wales v Hayter at [6]. 13 Section 9(2) provides that an extended supervision order may be made if, and only if, the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit further serious sex offences if he is not kept under supervision. The application for final relief requires consideration of the factors contained in s9 of the Act. It is necessary, for the limited purposes presently required, to refer to s9 factors and their application to this Defendant. 14 The Court of Appeal has stated that the word "likely" in s9(2) of the Act does not require a degree of probability exceeding 50 per cent: Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327 at [88]-[90], [92]. The world "likely" may be taken to mean a "sufficiently substantial probability": Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

The Present Defendant 15 I am satisfied that the Defendant falls within the definition of "sex offender" and that he is serving a relevant sentence of imprisonment for a "serious sex offence". Accordingly, the Defendant satisfies the initial criterion for application of the Act. 16 The Defendant was born in 1939 and is presently 69 years of age. I will shortly move to the s9 factors for the purpose of assessment required at this point. I observe, however, that the evidence demonstrates that the Defendant is a diagnosed paedophile. Prior to 2000, his only criminal history was a conviction for illegally using a motor vehicle in 1963. 17 In 2000, he was sentenced by Judge Duggan in the Victorian County Court to a term of three years and seven months imprisonment, with a non-parole period of two years, for a series of sex offences committed against boys in that State. The victims were brothers. The offences were committed over a period between 1994 and 1999. The Defendant had befriended the family of the boys and the offences occurred in the context of a breach of trust of the relationship which he had formed. 18 In 2002, the Defendant was sentenced by his Honour Judge JB Phelan in the District Court at Wollongong to a term of imprisonment for sex offences committed in the State of New South Wales. These offences were committed against four brothers, and their female cousin, over a period between 1973 and 1990. Again, these offences were committed in circumstances where the Defendant had formed a friendship with the family of the children in question, and in that context, he spent time with the family and the children. The offences were said to have been committed over that 17-year period with great frequency. 19 It is not necessary, on this application, to outline the particular facts of the offences, except to note that the Defendant's offences were committed upon children of a prepubescent age. 20 His Honour Judge JB Phelan imposed a sentence of seven years imprisonment with a non-parole period of four years. The head sentence of seven years will expire on 19 December 2008. Although a non-parole period was fixed to expire on 19 June 2006, the Defendant has not wished to seek parole at any time and, thus, as I have said, the sentence will expire by effluxion of time. 21 The Defendant was described in the evidence before the Court on this application as always being something of a loner, who would experience difficulties relating to adults and who feels more comfortable in the company of children. The evidence indicates that the Defendant, essentially, has no support in the community. He has an elderly sister with whom he has not been in contact for some time. The Department of Corrective Services records show that he has not had a visitor since his transfer to prison in New South Wales in December 2001. 22 It is in that context that the Plaintiff brings this application for what would ultimately be an extended supervision order for a period extending beyond his release date on 19 December 2008.

Consideration of s9(3) Factors 23 As I have said, for the purposes of a s7(4) preliminary hearing, it is necessary to consider relevant s9(3) factors. I will deal with the s9(3) factors out of order and only refer to those which have some direct application. 24 Section 9(3)(c) requires the Court to consider the results of any assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the Defendant committing further serious sex offences and the willingness of the Defendant to participate in an assessment and the level of participation in the assessment. 25 In this respect, the Plaintiff relies on the evidence of Dr Lennings contained in his affidavit and accompanying report, and the reports of psychologists and psychiatrists who have assessed the Defendant, effectively since the year 2000. The evidence, and in particular the report of Dr Lennings, addresses three types of data which are traditionally brought to bear in risk assessment in this area:

(a) static variables, utilising the STATIC 99 criteria;

(b) dynamic variables and factors specific to the Defendant;

(c) psychological and psychosocial variables which cast light upon the risk of sexual recidivism. 26 Dr Lennings has interviewed the Defendant and has reviewed a significant amount of documentation. He has expressed the view that the overall risk rating with respect to the Defendant was moderately high. Using the statistical basis in STATIC 99 alone, Dr Lennings said the Defendant is "less likely to commit another sexual offence then he is more likely to". However, subjective factors of the assessment indicate, accordingly to Dr Lennings, that the Defendant may belong to the one-third of offenders who are more likely to re-offend, by reference to the dynamic variables and psychological and psychosocial variables which have contributed significantly to Dr Lennings' opinion about the risk of the Defendant re-offending. 27 Dr Lennings considered dynamic risk factors identified in the Risk of Sexual Violence 20 ("RSV-20") and identified a range of factors. Firstly, sexual deviance, which Dr Lennings noted is one of the two most predictive factors of sexual re-offending. This factor weighed heavily, in Dr Lennings' opinion, towards the risk of re-offending by the Defendant. 28 A further factor which is significant to the RSV-20 dynamic risk assessment was the Defendant's relationship problems. This Defendant has never had an intimate relationship with an adult and seeks to meet his intimacy needs with children. 29 Other factors which operated adversely to the Defendant on the RSV-20 dynamic risk assessment were the high density of his sexual offending, the significant number of victims involved, his persistent abuse over a period of some 26 years, what Dr Lennings described as the escalation of his sex offences, the Defendant's attitude of condoning sex offending, and the Defendant minimising his offending (in particular, persisting in viewing his behaviour towards children as that of friendship rather than exploitation). 30 Dr Lennings referred (as did the author of at least one other report) to what was said to be the Defendant's unrealistic future plans, whereby he proposes to live in a rural area in Victoria. 31 With respect to the Defendant's age (a significant factor in the present proceedings), Dr Lennings observed that, in general, it is thought that paedophilic offenders have higher recidivism rates than rapists. Age is generally a factor that decreases risk but the nature of the offender's victims need be considered. Research shows that extra-familial child molesters have the highest recidivism rates. Dr Lennings concluded that, as the Defendant had child victims and had committed his last offence at the age of 59 years, "age is not a protective factor against recidivism in the Defendant's case". 32 Dr Lennings expressed the view that the Defendant did not seem to have achieved much genuine insight into his sex offending. Whilst he expresses an understanding that his victims had been harmed, the Defendant "persists in claiming them as friends, being hurt by what he sees as them turning against him". 33 With respect to the Defendant's future plans, Dr Lennings observed that, it seems "unrealistic and against the interests of the community safety for the Defendant to be released so as to disappear into a bush block somewhere in Victoria". He expressed the view that the Defendant ought be supervised in the community. 34 The report of Ms Kate Harle, psychologist, dated 23 April 2008 summarised the CUBIT program undertaken by the Defendant. Like Dr Lennings, Ms Harle expressed concern with respect to the Defendant by reference to dynamic risk factors. Earlier reports prepared in 2002 by Dr Anthony Samuels, psychiatrist, and Ms Narci Sutton, psychologist, had pointed to a significant risk of re-offending. 35 Thus the material referable to the Defendant under s 9(3)(c) of the Act provides, in my view, strong support for the making of a s7(4) order. 36 Section 9(3)(d) requires attention to be given to results of any statistical or other assessment of the likelihood of persons, with histories and characteristics similar to those of the Defendant, committing a further serious sex offence. In this respect, there is reference in the evidence (which I do not need to further summarise) to the use of actuarial risk assessment tools such as STATIC 99 and the opinions of Dr Lennings and others by way of assessment as to likelihood of committing a further serious sex offence. 37 Section 9(3)(e) requires consideration of any treatment or rehabilitation programs in which the Defendant has had an opportunity to participate, his willingness to participate and the level of participation in such programs. The Defendant has voluntarily completed a number of programs. He completed, in 2000 and 2001, six short psycho-educational programs whilst in custody in Victoria. He completed the first stage of the three-stage sex offenders program in Victoria, but did not continue that program as a result of his transfer to this State in 2001. 38 He has completed the CUBIT program, although he was suspended from it for a period in 2006, and did not complete it until 2007. Ms Harle's report with respect to the CUBIT program includes the opinion that the Defendant's release plans and support network are "unrealistic and insufficient to provide much assistance to him to effectively manage his risk of re-offending". 39 Thus, although the Defendant has undertaken rehabilitation programs, the results of those programs are such that the opinions with respect to him are somewhat guarded. 40 Section 9(3)(f) requires the Court to consider the level of the Defendant's compliance with any obligations to which he has been subject while on release on parole or while subject to an earlier extended supervision order. As I have mentioned, the Defendant has consistently refused to seek parole and thus there has been no opportunity to test his performance in the community. He has been in custody continuously since 2000. 41 Section 9(3)(h) requires the Court to consider the Defendant's criminal history (including prior convictions and findings of guilt in New South Wales or elsewhere) and any pattern of offending behaviour disclosed by that history. I have referred briefly to the Defendant's history of sexual offending. It reveals offences in the states of Victoria and New South Wales over a period of some 26 years against child victims, including both prepubescent girls and boys and post pubescent boys. A pattern of offending is revealed. The evidence points to a range of grooming behaviour by the Defendant. There is an entrenched pattern of conduct, involving active sexual offending against children to the point where the Defendant was 59 years of age. 42 Section 9(3)(i) of the Act requires the Court to have regard to any other information that is available as to the likelihood that the Defendant will in future commit offences of a sexual nature. In this respect, the Plaintiff points to the fact that the Defendant has no post-release plans in place which would minimise his risk of re-offending. The Plaintiff points to evidence indicating very limited insight on the part of the Defendant into his offending; and that what would occur on 19 December 2008, in the absence of any orders under the Act, would be the release of the Defendant unsupervised into the community. These factors are pointed to, and are supportive of, the making of an order. 43 I mention lastly the factor in s 9(3)(a), being the safety of the community. This is a paramount factor for the purposes of the Act. All the matters to which I have referred are capable of being grouped together and bearing upon the safety of the community. It is sufficient to note that there are real concerns operating against the Defendant on the present application flowing from the possibility of his release unsupervised into the community, given his lengthy history of offending and the absence of plans or safeguards revealed in the evidence before the Court on this preliminary hearing.

Section 7(4) Conclusion 44 Having considered the factors applicable to this application under s9(3) of the Act, I express the conclusion that I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. Accordingly, I am satisfied that orders should be made for appointment of psychiatrists to undertake examinations of the Defendant so that this application may proceed to its next phase. 45 I note that there is no application by the Plaintiff, at present, for an interim supervision order under s8. It is anticipated that the hearing of the claim for final relief by way of the application for extended supervision order will be capable of being heard and determined prior to the release date of the Defendant, being 19 December 2008. 46 The Plaintiff has proposed Dr Samson Roberts and Dr Anthony Samuels as the psychiatrists to undertake the reporting function under s7(4) of the Act. 47 The fixing of a hearing date cannot occur immediately but steps will be taken to secure a hearing date before the end of term. I will stand over the proceedings shortly for the purpose of locking in the hearing date. It is appropriate, however, that I make such orders as may now be made to progress the matter. I make the following orders:

(1) Pursuant to s 7(4) of the Crimes (Serious Sex Offenders) Act 2006 , Dr Anthony Samuels and Dr Samson Roberts are appointed to conduct separate psychiatric examinations of the Defendant, Cecil Hector Toms. Dr Samuels and Dr Roberts are to furnish to the parties and to the Court (through the Plaintiff's solicitors) written reports on those examinations by 24 November 2008.

(2) Pursuant to s 7(4) of the Act, the Defendant is directed to attend each of the examinations referred to in order 1.

(3) The Plaintiff is to file and serve any further evidence upon which it relies by 28 November 2008.

(4) The Defendant is to file and serve any evidence upon which he relies by 8 December 2008.

(5) The parties have liberty to apply on one day's notice. [The proceedings were stood over to 10.00 am on 30 October 2008 to fix a hearing date and for an order to be made under s77 Crimes (Administration of Sentences) Act 1999 that the Defendant be brought to Court for the hearing]

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