The State of New South Wales v Thorne

Supreme Court of NSW|2014-04-30|Before: Hidden J

Solicitors: Crown Solicitor (plaintiff) Legal Aid Commission (defendant) File Number(s): 2013/375592

Judgment

HIS HONOUR: The plaintiff, the State of New South Wales, applied for an extended supervision order in relation to the defendant, Keith Charles Thorne, under the Crimes (High Risk Offenders) Act 2006 ("the Act"). On 2 May 2014 I made the order. As it was necessary to determine the matter quickly because an interim supervision order was shortly to expire, I undertook to give my reasons later. These are those reasons. They need not be lengthy because the defendant, through his counsel, accepted there was sufficient evidence to warrant an extended supervision order. The only issues were the length of the order and the terms of one of the proposed conditions.

Criminal history

The defendant has a criminal history comprising sexual offences and other offences, being mainly drug and traffic offences. Of relevance for present purposes are four prior sexual offences.
These offences all occurred in 1999, one in Narrabri and the other three in Hay. The victim of the first offence was previously known to the defendant, but the victims in the other three were not.
The first offence occurred in 1999 in Hay. The defendant approached the victim in the male toilets in a hotel and tried to grab his penis. The victim flinched and zipped up his pants. The defendant took hold of him, grabbing his throat, but the victim managed to talk his way out of the situation and left the hotel.
The second offence occurred on 9 April 1999, also in Hay. The victim, who had been out with friends, was introduced to the defendant at a hotel. The victim and his friends left the hotel. The victim reached his home in the company of one of his friends, who left him. However, the friend turned, saw the defendant with his hand around the victim's neck, and ran to where they were. This led to a charge of common assault, although it is most likely that the defendant's intention was sexual.
The third offence, again committed in Hay, was the most serious of the four. On 15 August 1999, the defendant met a 19 year old man at a hotel, and offered him a lift home to the property where he worked. However, after they reached his car, the defendant held a large knife to the victim's throat and ordered him into a nearby public toilet. He made the victim remove his clothes, masturbated him, then ordered the victim to perform fellatio upon him. He then forced the victim to lie on his back on the floor and anally penetrated him. He threatened to kill the victim if he told anyone what happened. This gave rise to a charge of aggravated sexual intercourse without consent (s 61J of the Crimes Act).
On 29 October 1999, while on bail for that offence, the defendant approached a 17 year old youth near a reserve in the Narrabri area. He took hold of the victim, produced a kitchen knife and pressed it onto the victim's back. He then forced the victim to walk to a secluded area, holding the knife against his throat. He turned the victim around, withdrew the knife, placed his hands around the victim and caressed him before sliding his hands down the victim's buttocks. The victim pushed the defendant away and managed to escape. The defendant was arrested the same day, and during a recorded interview he admitted that he intended to have sexual intercourse with the victim, and also revealed that he had been drinking heavily and had taken 4 Rohypnol tablets prior to the offence. He was charged with threatening actual bodily harm with an offensive weapon, with intent to have sexual intercourse (again s 61K(b) of the Crimes Act).
On 21 July 2000, the defendant was dealt with for all these offences in the District Court. He pleaded guilty to the last two offences, and the earlier offences were taken into account on a Form 1. He was sentenced to an effective term of imprisonment for 6 years, with a non-parole period of 4 years, dating from 29 October 1999.
It was while he was on parole for these offences that he committed the index offence.

Background

The defendant is now 50 years old. He grew up in Narrabri, and is the second of five siblings. His father was an excessive drinker and was violent towards his mother. During his incarceration his father and an older brother died. He was sexually abused by an uncle at the age of 5, and again between the ages of 7 and 14.
He had learning difficulties, and for about 5 years was sent to the Royal Far West Home. When he returned he went to high school, but was expelled at the age of 15 for setting fire to the science lab. He was unemployed for a considerable period of time, but eventually undertook some unskilled rural work.
In his mid-teens he acknowledged his homosexuality, but did not disclose it to his family until he was in his 30s. In the meantime he had had a number of casual sexual relationships.
He has a long history of substance abuse, mainly of drugs. He began using cannabis at the age of 13, and by his later teens was using it on a daily basis. Throughout his twenties he regularly used heroin, and subsequently took to benzodiazepines and methamphetamine.

Custody/response to supervision

During his first period of custody, from 29 October 1999 to 28 October 2003, the defendant completed a 9 week program known as introductory Sex Offender Rehabilitation Training (SORT), and then undertook the CUBIT program. His response to that program appeared to be reasonably positive. He demonstrated some understanding of the effect of his sexual abuse on victims, albeit more intellectual than emotional, and acknowledged responsibility for his offences. He was noted to have developed a relapse prevention plan, which was described as well thought out, and was said to have worked independently with his primary therapist on making his deviant sexual fantasies less attractive.
He was released on parole on 28 October 2003 and, again, was reported to have been responding positively to his parole supervision. However, as I have noted, he was subject to that parole when he committed the index offence on 22 July 2004, and his parole was revoked the following day.
He remained in custody until 22 July 2012, when he was again released on parole. During that period in custody he again undertook the CUBIT program, commencing it on 30 March 2011 and completing it on 9 November 2011. Again he appeared to engage positively in the program, but this was approached with caution because of the perception that he had done so on the previous occasion. Indeed, he acknowledged that his participation on the first occasion was superficial, that he told the psychiatrists "what they wanted to hear", and that he was not motivated to address his offending behaviour because the initial consequences of re-offending did not have a deterrent effect on him at that time. That said, although his lack of self-confidence and low self-esteem were noted upon his return to the program, and inhibited his ability to engage, his confidence increased during the course and he became a "pro-active member" of the CUBIT community. He developed goals to manage himself upon his release, acknowledging the need for drug and alcohol intervention.
Upon his release on parole on 22 July 2012, he engaged with psychological counselling and attended an AOD appointment for a mental health assessment. However his behaviour deteriorated from October 2012. He was reported to have become withdrawn and to be associating with another sex offender at the COSP where he was residing. He also disclosed to his supervising officer that he was experiencing thoughts of engaging in sexual acts with a man without his consent. He was found upon urine analysis to have been using ice between October and November 2012. In the light of these matters (and some other breaches of his parole conditions) his parole was revoked effectively from 27 November 2012 and, upon his arrest, he was returned to custody on 16 December 2012.
He was released on parole yet again on 13 December 2013, and became subject to an interim supervision order on 9 February 2014. This period of supervision was marked by his relapse into drug use and, apparently, accessing gay pornographic material.

Expert reports

In evidence are a risk assessment report of 5 December 2013 by Ms Narcisa Sutton, psychologist, and two psychiatric reports: of Dr Anthony Samuels of 19 February 2014, and Dr Samson Roberts of 24 February 2014. These reports are lengthy, and in each of them the evidentiary material is comprehensively reviewed. However, they speak with one voice and can be summarised fairly briefly.
All three experts conclude that the defendant is at high risk of further sexual offending. They note his history of substance abuse, particularly of drugs, which he associates with his offending. They also note his experience of deviant sexual fantasies, in which control and even force play a part. Generally, the defendant gave a history of anxiety, depression, lack of self-esteem, difficulties in interpersonal relationships and a fear of rejection. Ms Sutton saw these factors, together with his drug use, as constituting a potential risk scenario. In her report she wrote: "Were Mr Thorne to reoffend, it would most likely be against a male stranger between the ages of 18 and early 20's. The offence is most likely to take place at night in an isolated place, following a drinking session at a hotel or a party, and Mr Thorne is likely to have prepared for the possible event by carrying a knife. The offence would unfold quickly once Mr Thorne identifies a potential victim, and would include threats of force. Like most offenders, Mr Thorne does not act out on every opportunity these high risk factors are present. There are likely to be instances where he uses better judgement, or external factors interrupt his offence cycle. Future risk is chronic in nature in that, over time, if he were exposed to these risk factors without intervention or interruption there would be fewer barriers to a new sexual offence."
Dr Samuels diagnosed the defendant as suffering from a substance abuse disorder. Dr Roberts diagnosed that disorder and a major depressive disorder. All the reports noted some positive signs. In particular, Dr Samuels wrote that he presented as having insight and remorse with regard to his offending, and a motivation to address his depression and substance use. Nevertheless, he reported that his "persisting vulnerability to relapse would remain a potential challenge, undermining confidence that his risk of reoffending is controlled."
All three experts emphasised his need to abstain from alcohol and drugs. The two psychiatrists considered that the supervision plan reflected in the proposed conditions of an extended supervision order was appropriate. Both reported that he needs long term treatment, and supported an order for the duration sought by the State, 5 years.

The order sought

Section 5B of the Act provides that I can make an extended supervision order in respect of the defendant if I am satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. There is no need to examine the body of authority which has developed on that provision. As I have said, the defendant's counsel, Mr Scragg, acknowledged that the evidence supported such an order. In any event, on my own examination of the evidence I am myself satisfied to the requisite degree that an order should be made. This leaves the issues of the duration of the order and one of the conditions sought by the State.
5 years, of course, is the maximum term for which an order might be made. Mr Scragg submitted that the term should be no longer than 3 years, and cited a number of cases in which an order for 5 years was sought but an order for 3 years was made: the decision of Button J in Attorney General for the State of New South Wales v Steadman [2013] NSWSC 170, the decision of R A Hulme J in State of New South Wales v Green (Final) [2013] NSWSC 1003, and my own decision in State of New South Wales v Conway [2011] NSWSC 925. In each of those cases it was decided that, while a longer period of treatment might be therapeutically desirable, it was not appropriate to subject the defendant to the regime of extended supervision for longer than 3 years, given the penal sanctions for breaches of the order, and also given the provision in the Act for an application by the State for extension of the order if it were seen as necessary. Further, the shorter period can encourage a defendant to engage positively in treatment and guidance to achieve rehabilitation.
In Conway at [28], I noted that one of the psychiatrists, Dr Allnutt, properly observed that the decision about the length of an order is "a legal one, not a clinical one." I continued: "After careful consideration, I am persuaded by Mr Johnson's submission that 3 years is a significant period in which to monitor the defendant in the community, and provide significant scope for professional intervention. That lesser period, in my view, would provide a greater incentive to the defendant to pursue his rehabilitation and, in particular, to commit himself genuinely to treatment. It should be borne in mind that, by s 10(3) of the Act, this Court could make a further extended supervision order, and s 13 provides for the revocation or variation of an order on the application of the State or the defendant. That being so, the position can effectively be reviewed at the end of the 3 year period."
In Steadman, Button J saw considerable force in the plaintiff's argument for a 5 year period but observed at [82]: "On the other hand, 3 years is not a period of short duration. The conditions of the order that I will make are a significant erosion of the liberty of the defendant. Nothing precludes the plaintiff from applying to amend such an order during its duration, including as to its length. Nor does anything preclude the plaintiff from seeking a further order of substantial length towards the end of the order I will make. At that stage the position as to the need for extension will be clearer than it is today. Whilst I accept that those processes, if necessary, will involve time, trouble, and expense, and those considerations deserve to be given some weight, they are not determinative."
Of course, each case turns on its own facts. Counsel for the State in the present case, Ms Mahony, submitted that the 5 year period was necessary, noting the defendant's long history of sexual offending, some of it very serious, together with the fact that he is a mature man with serious and entrenched issues to be addressed. Nevertheless, for the reasons expressed in the authorities to which I have referred, I was satisfied that a 3 year period was better directed to the defendant's rehabilitation, whilst still serving the interests of the protection of the community.
The condition of the order to which objection is taken, condition 30, is in these terms: "The defendant: (a) must not access, join and / or connect to any internet based social networking service, including web-based, e-mail, instant messaging services and on-line community services, without approval from the Departmental Supervising Officer; and (b) in circumstances where the defendant accesses, joins and / or connects to any internet based social networking service, the defendant must inform the Departmental Supervising Officer of any login identification name and password for any internet based social networking service he joins and / or connects to, including web-based, e-mail, instant messaging services and on-line community services."
Mr Scragg sought an amendment to par (a) which would allow the defendant to access social networking services unless directed not to by his supervising officer, rather than preventing him from doing so without the approval of that officer. He noted that in an affidavit Ms Danielle Matsuo, a psychologist experienced in these matters, expressed the view that the amendment was suitable, noting that it does not appear from the risk assessment report "that internet access is related to the defendant's risk of recidivism or used for the purpose of him meeting potential victims."
The difference between the reading of the proposed condition and the proposed amendment is a fine one, but it is significant. Ms Mahony opposed the amendment, relying on the affidavit of a Corrective Services officer, Mr Zouhier Abedine, manager of the Extended Supervision Order Team. His view was that the condition in its original form reduces the risk of the defendant accessing social media sites without his supervising officer's prior knowledge. Having that prior knowledge, the officer would be able "to consider the suitability of the defendant accessing any sites that he proposes", and would ensure that the officer "is able to effectively monitor the defendant's access." The proposed amendment would confine the officer's ability "to issue directions only on those sites known to be of concern." The defendant may have access to other sites, unknown to the officer, which "may otherwise be of a concern" to that officer.
Ms Mahony also referred to a reference in a CUBIT treating report of 1 October 2011 to one of the warning signs of the defendant reoffending being his becoming secretive in his dealings. In the light of these matters, I was satisfied that it was preferable that the defendant be required to notify his supervising officer in advance of social networking sites he wished to access, and the condition remained unchanged.
Otherwise, I was satisfied that the proposed conditions, most of them now familiar in matters of this kind, were appropriate. .

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 March 2016

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