State of New South Wales v Thomas [2008] NSWSC 640

New South Wales Supreme Court

CITATION : State of New South Wales v Thomas [2008] NSWSC 640

HEARING DATE(S) : 10 June 2008, 11 June 2008

JUDGMENT DATE : 11 June 2008

JUDGMENT OF : Johnson J at 1

EX TEMPORE JUDGMENT DATE : 11 June 2008

DECISION : Interim detention order made under s.16 Crimes (Serious Sex Offenders) Act 2006, together with order under s.15 for examination of Defendant by two psychiatrists.

CATCHWORDS : CRIMINAL LAW - serious sex offender - interim detention order - orders for appointment of psychiatrists to examine Defendant

Crimes (Serious Sex Offenders) Act 2006 LEGISLATION CITED : Crimes Act 1900 Child Protection (Offenders Registration) Act 2000 Child Protection (Offenders Prohibition Order) Act 2004

CATEGORY : Principal judgment

CASES CITED : Attorney-General for New South Wales v Hayter [2007] NSWSC 983 Attorney-General for New South Wales v Tillman [2007] NSWCA 119

PARTIES : State of New South Wales (Plaintiff) Bruce Malcolm Thomas (Defendant)

FILE NUMBER(S) : SC 12385/08

COUNSEL : Mr DG Staehli SC; Ms NL Sharp (Plaintiff) Mr MJ Johnston (Defendant)

SOLICITORS : IV Knight (Crown Solicitor) (Plaintiff) Peter Murphy Solicitor (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Johnson J

11 June 2008

12385/08 State of New South Wales v Bruce Malcolm Thomas

JUDGMENT 1 JOHNSON J: The Plaintiff, the State of New South Wales, seeks orders including an order, under s.16(1) Crimes (Serious Sex Offenders) Act 2006 ("the Act") that the Defendant, Bruce Malcolm Thomas, be detained in a correctional centre on an interim basis for a period of 28 days from 11 July 2008. 2 The Defendant is presently serving a sentence of imprisonment comprising a head sentence of 12 years, imposed by his Honour Judge Peter Phelan in the District Court on 25 October 1996, for a serious sexual assault offence. That sentence dated from 12 July 1996 and will expire by effluxion of time to 11 July 2008. 3 The Plaintiff relies upon a substantial volume of documentary evidence for the purpose of the present application. In addition, detailed and helpful written submissions have been prepared by counsel for the Plaintiff. In light of the evidence and submissions for the Plaintiff, counsel for the Defendant, Mr Johnston, has adopted a practical and understandable approach to the present application. 4 The Defendant does not consent to the making of an order that would detain him beyond 11 July 2008. However, no evidence was adduced, nor was any submission made by the Defendant in response to the Plaintiff's interim application. There is no dispute that the Defendant is subject to the Act. For the purpose of the preliminary hearing, the Defendant accepts that the Court is likely to be satisfied that the matters alleged in the supporting documentation, if proved, would justify an extended supervision order or detention order. On this basis, the Defendant consents to orders, for the purpose s.15(4) of the Act, for the appointment of two qualified psychiatrists to conduct psychiatric examinations, and the Defendant will accept any reasonable order to attend psychiatric examination. The Defendant accepts that under s.16 of the Act, the Court may make an interim order to operate from 11 July 2008. The Defendant will seek to be heard on any application by the Plaintiff under s.16(3) to renew any interim detention order. No concession is made by the Defendant concerning the nature of any final order that might be made under the Act. 5 It remains a matter for the Court to determine whether an interim detention order ought be made under s.16. The approach of the parties, however, has assisted the Court to determine this question expeditiously. 6 The present hearing has encompassed both a preliminary hearing under s.15(3) and (4) of the Act and an application for an interim detention order under s.16 of the Act. 7 At the preliminary hearing, the Court must consider the evidence filed (the supporting documentation) and determine whether it is satisfied that the evidence would, if proved, justify the making of a continuing detention order or an extended supervision order: s.15(4). If the Court is so satisfied, it must appoint two qualified psychiatrists to conduct psychiatric examinations of the Defendant and report to the Court, and direct the Defendant to attend those examinations. The Court is then obliged to take those reports into account in determining whether to make a continuing detention order or an extended supervision order s.17(4)(b). As mentioned earlier, the Defendant consents to an order under s.15(4) for the appointment of two psychiatrists to examine him, together with a direction to attend for those examinations. Given the similarity of the test under s.15(4) and s.16, the Court should still consider this issue. I will return to this topic later in this judgment. 8 Under s.16(1), the Court may make an interim detention order if it appears to the Court that the offender's current custody will expire before the proceedings are determined and the matter alleged in the supporting documentation would justify the making of a continuing detention order or extended supervision order. The Plaintiff submits that the words "if proved" in s.16(1)(b) indicate an evidentiary as opposed to a legal burden. That is, it must appear to the Court that there is a prime facie case. I accept this submission and note that a similar approach has been taken by Price J in Attorney-General for New South Wales v Hayter [2007] NSWSC 983 at [6]. 9 The effect of s.16(1)(b) is that it must appear to the Court that the allegations (if not rebutted) would justify the making of a continuing detention order or an extended supervision order. That, in turn, requires consideration of each of the matters set out in s.17(4) since the Court "must" have regard to those matters. It follows that s.16(1)(b) requires that it appear to the Court that: