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: (a) the supporting documentation contain evidence in relation to each of the matters set out in s.17(4); (b) the evidence (if not rebutted) demonstrates to a high degree of probability that the Defendant is likely to commit a further sex offence if he is not kept under supervision; and (c) the evidence (if not rebutted) demonstrates to a high degree of probability that adequate supervision will not be provided by an extended supervision order. 10 In Attorney-General for New South Wales v Tillman [2007] NSWCA 119 at [98], the Court of Appeal explained the s.16 function and observed that the Court is not involved in weighing the documentation or predicting the ultimate result. The threshold question in s.16(1)(b) is to be resolved without considering any evidence that might be called by the Defendant at a final hearing. The Court of Appeal emphasised that the Court has a discretion whether to make a s.16 interim detention order. 11 I accept that, for the Court to make a s.16 interim detention order, it must appear to the Court that: (a) the Defendant's current custody will expire before the proceedings are determined; (b) the supporting documentation contained evidence in relation to each of the matters set out in s.17(4); (c) the evidence (if not rebutted) demonstrates to a high degree of probability that the offender is likely to commit a further sex offence if he is not kept under supervision; (d) the evidence (if not rebutted) demonstrates to a high degree of probability that adequate supervision will not be provided by an extended supervision order; and (e) if each of these matters is established, the Court may consider relevant matters in exercising its discretion whether to make an interim detention order. 12 I am satisfied that the Defendant is a "sex offender" within the meaning of the Act and that he is serving a sentence of imprisonment for "a serious sex offence". I note, at the outset, that it appears to the Court that the Defendant's current custodial sentence will expire before the proceedings are determined. It is apparent that there will be time required to conclude these proceedings, given the need for psychiatric examinations to be undertaken and reports to be provided after those examinations. 13 There has been a very substantial volume of documentary material tendered on this application concerning the Defendant's life and crimes, his response to supervision in the community and his medical history. It is not necessary, on the present application, to recite this very detailed history beyond the limits of the following account. 14 The Defendant was born in 1947 and is presently 60 years of age. He has been assessed by psychologists, in particular Ms Dumasia (to whom I will make further reference) as presenting a high risk of sexual re-offending. The Defendant's criminal history is very extensive and includes both sexual and non-sexual offences. I will refer to a series of sex offences disclosed in the evidence. 15 The Defendant's first sex offence was committed in 1968 upon a 17 year-old girl, who was an acquaintance of his. The Defendant was convicted of indecent assault upon the young woman. It is not necessary, for present purposes, to recite the facts of that offence. The Defendant pleaded guilty to the charge and, in 1969, appeared before his Honour Judge Head in the Sydney Quarter Sessions and was fined and placed on a three year bond. 16 Six weeks after the Defendant was convicted of that offence he committed his second sex offence in 1969. This offence, being one of buggery, was committed against a 23 year-old woman who was a stranger to the Defendant. She had knocked on the door of the terraced house in which the Defendant lived, looking for a friend. Thereafter, she was subjected to a non-consensual act of buggery. The Defendant was sentenced by his Honour Judge Curlewis in Sydney Quarter Sessions in 1969 to seven years imprisonment with a non-parole period of five years. 17 In 1978, the Defendant committed his third sex offence, being a crime of rape. This offence was committed against a stranger who was picked up by the Defendant and another person and thereafter sexually assaulted. The Defendant was convicted of rape and sentenced by Maxwell J, in 1978, to imprisonment for eight years with a non-parole period of three years. 18 The Defendant's fourth sex offence was committed in 1981, whilst he was on parole following his third sex offence. The fourth sex offence was one of having sexual intercourse without consent with a 23 year-old woman. She was an acquaintance who worked at the place where the Defendant worked. The Defendant was sentenced by Cross J, in 1982, to imprisonment for four years, a sentence later adjusted by the Court of Criminal Appeal. 19 The Defendant's fifth sex offence was one of indecent assault committed in 1985. At the time of this offence, he was on parole for his fourth sex offence. The young woman victim of this offence was an acquaintance of the Defendant. The Defendant was sentenced by his Honour Judge Collins QC in the District Court in 1986 to a period of nine months imprisonment. 20 The Defendant's sixth sex offence was committed in 1996. It is this offence, described as the index offence, which gave rise to the sentence of imprisonment which continues, but will shortly expire. 21 The Defendant was 48 years of age at the time of this offence. He was on parole, having been released about one month earlier. This offence of aggravated sexual intercourse without consent (s.61J Crimes Act 1900) was committed against a 24 year-old woman who was a partner of a person known to the Defendant. The Defendant attended her premises and, after threats with a knife, sexually assaulted her in a most serious fashion. The Defendant pleaded guilty before his Honour Judge Peter Phelan in the District Court and was sentenced to imprisonment for 12 years with a non-parole period of nine years commencing on 12 July 1996. The State Parole Authority has declined to release the Defendant to parole, and thus the head sentence presently approaches its conclusion. A consequence of the expiration of the Defendant's current head sentence would be that, absent an order under the Act, the Defendant would be released into the community without supervision. It is not necessary, for present purposes, to recite a number of findings made by his Honour Judge Phelan at the time of sentencing the Defendant. It is apparent, from the length of the sentence imposed that this was a most serious crime. So much was said by the Court of Criminal Appeal in 2000 when dismissing an appeal against sentence. 22 The Defendant has an extensive criminal record for non-sexual offences as well, but it is not necessary for the purposes of the present application to refer to them. 23 It will be apparent from the recital of at least some of the Defendant's criminal history, that he has been imprisoned for long periods over many years. In fact, the Defendant has spent some 35 of the last 38 years in prison. 24 There is evidence before the Court on this application concerning the Defendant's current medical condition. It is common ground that the Defendant has had a heart condition for some time. Because of this, the Plaintiff obtained a report dated 6 May 2008 from Professor Richards, a cardiologist. It is not necessary, for the purpose of the present application, to recite in detail the contents of Professor Richards' report. It is sufficient to note that Professor Richards states that there is an improved cardiac prognosis for the Defendant and that, in the opinion of Professor Richards, the Defendant is physically capable of sexually offending, of holding a knife and threatening a woman. He is capable of arousal and obtaining an erection. Clearly, these matters are relevant to the s.16(1)(b) test and the s.16 discretion itself. 25 The Defendant has been examined by psychiatrists and psychologists over the years (including for the purposes of court appearances). Most recently, Ms Dumasia, who examined the Defendant for the purpose of this application, found that he demonstrated a reasonable ability to recollect events, but when discussing his offending behaviour, maintained he could not remember certain offences whatsoever. Ms Dumasia also noted that the Defendant's willingness to recall each of the offences has varied over the years. 26 It is necessary, as I have said, for the purpose of considering the s.16 application, to refer to factors that must be considered pursuant to s.17(4) of the Act. I stress, in this respect, that the process which I am undertaking is a limited one, not based upon evidence adduced at a final hearing. The exercise involves an assessment of the evidence tendered for the purpose of the Court exercising its limited function under s.16 of the Act. 27 The Plaintiff submits that the supporting documentation contains evidence of each of the matters set out in s.17(4) with the obvious exception of s.17(4)(b), which can only have application after examination by appointed psychiatrists unders.15(4) of the Act. I accept the Plaintiff's submission that the supporting documentation contains evidence of each of the matters in s.17(4) (apart from s.17(4)(b)). I shall refer briefly to each of the factors raised in s.17(4) for the purpose of this application. 28 Section 17(4)(a) requires consideration of the safety of the community. I am satisfied that there is evidence that the safety of the community would be threatened if the Defendant was released into the community because of the risk that he would commit a further serious sex offence. This is to be viewed against the background of the Applicant's extensive history of convictions, which appears to demonstrate an inability or unwillingness to comply with the law in the community, and a number of instances of demonstrated disregard for the safety of the community. 29 Section 17(4)(c) requires consideration of the results of assessments by psychologists. A qualified registered psychologist, Ms Dumasia, has expressed the opinion that the Defendant has a high risk of committing a further sex offence. For the purpose of reporting on the Defendant, Ms Dumasia undertook a number of assessments, combined with a lengthy interview of the Defendant in January 2008. Two types of risk assessment were conducted with respect to the Defendant. Firstly, an actuarial risk assessment which considered static factors, the Static-99 Risk Assessment. Secondly, a dynamic risk assessment which considered changeable factors personal to the Defendant. 30 The combination of a risk assessment, involving both a static and dynamic assessment, is well-known as a means of risk assessment of sex offenders, both for the purposes of assessment for release on parole, and also for the purposes of applications under the Act. The Static-99 Risk Assessment of the Defendant produced a score of 8. Ms Dumasia observed that this placed the Defendant in the high risk category of re-offending. It was relatively uncommon to have a score of 8 on a Static-99 Assessment. A score of 8, according to Ms Dumasia, increases confidence that the Defendant is, indeed, a member of the high risk group. 31 Ms Dumasia also assessed dynamic risk factors and found the Defendant suffered significant intimacy deficit, has a poor ability for self-regulation and a sexual pre-occupation. 32 Ms Dumasia found, on the basis of the static and dynamic factors, that the Defendant was to be assessed as being in the high-risk category of sexual re-offending relative to other adult males. She observed that the Defendant currently accepts limited responsibility for his sexual offending behaviour. Since his imprisonment, the prisoner has not completed any programmes to address his offending behaviour. Whilst the Defendant was able to identify some factors that may have contributed towards his offending behaviour, he lacks any comprehensive and realistic management strategies to effectively manage these in the future. 33 Ms Dumasia stated that the Defendant's ongoing ability to implement the coping strategies he has learnt to reduce his level of anxiety on release is debatable considering his past failures and his reports of continuing to suffer panic attacks. Whilst the Defendant's cardiac condition will have to be taken into consideration when considering his risk to the community, Ms Dumasia observed that it is difficult to determine the extent to which this may reduce or increase his future risk of either violent re-offending or sexual abuse. 34 As I have mentioned, the Plaintiff obtained a report from Professor Richards on 6 May 2008, which postdates the report of Ms Dumasia. The report of Dr Richards, when read together with the report of Ms Dumasia, does not suggest that the Defendant's cardiac condition significantly reduces the risk of him re-offending. 35 Section 17(4)(d) requires consideration of results of statistical or other assessments as to the likelihood of persons, with histories and characteristics similar to those of the Defendant, committing a further sex offence. This statutory factor, in essence, is a reference to actuarial risk assessment tools, of which the Static 99 Risk Assessment is an example. I have already made mention of the conclusions of Ms Dumasia following application of the Static-99 Assessment to the Defendant. 36 Section 17(4)(e) requires consideration of treatment or rehabilitation programmes which the Defendant has undertaken. The evidence filed to date shows that, over the years, the Defendant has only participated in one sex offender treatment programme being Introductory Sex Offenders Redirection Training ("SORT") in early 2001. The SORT programme ran for nine weeks. A contact report of 20 March 2001 concluded that the Defendant had difficulties engaging with the SORT programme, primarily by reason of his alleged inability to recall offences and his unwillingness to accept responsibility for his offending behaviour. Among other things, the contact report noted that the Defendant accepted no responsibility for his offences and claimed amnesia, that he had no concept or any indication of any victim empathy and, in fact, projected a great deal of disparaging comment towards the victim. The contact report concluded that the Defendant was a "high risk" and "most dangerous individual". 37 Ms Dumasia has observed that the SORT programme undertaken by the Defendant in 2001 was a psychosexual educational programme, and not a programme of the same type of intensity as the Custody Based Intensive Treatment ("CUBIT") programme. The CUBIT programme is the programme currently utilised in the custodial setting with respect to sex offenders. The Defendant has persistently refused to undertake CUBIT and has stated that he would prefer to serve his full sentence rather than go on parole. That is, in fact, what has happened. 38 The Defendant has explained to Ms Dumasia that he will not do CUBIT because he does not want to mix with paedophiles. He observed that he would attack them. The Defendant alleges that he was sexually abused as a child. 39 The conclusion is that the Defendant, for all his years in custody, has undertaken at most, part of one programme in 2001 and that was not a programme of a type applied and recognised as an intensive custodial programme. 40 Section 17(4)(f) requires consideration of the level of compliance with parole or supervisory obligations. The Plaintiff observes that the Defendant's second, fourth, fifth and sixth sex offences were all committed while he was on parole. It is noted that the Defendant's offences were often committed soon after being released to parole. The Plaintiff submits that it is therefore plain that the fact of parole, and the attendant strictures of supervision, provided no disincentive or impediment to the Defendant committing sex offences. Ms Dumasia has noted that the Defendant's previous failures to comply with parole and supervisory orders raise significant concerns as to the extent to which the Defendant could be relied upon to comply with such conditions upon release into the community. 41 Section 17(4)(g) requires consideration of the level of the offender's compliance with any obligations which he has been subjected to under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Order) Act 2004. The Defendant's offences do not involve children. They involve, by and large, sexual attacks on young adult women. Further, whilst these two statutes have been in force, the Defendant has been in custody. 42 Section 17(4)(h) requires consideration of the offender's criminal history, including prior convictions and findings of guilt in respect of offences committed in New South Wales and elsewhere, and any pattern of offending behaviour disclosed by that history. I have outlined the Defendant's criminal history for sexual offences earlier in this judgment. The Plaintiff submits, correctly in my view, that the sexual offences committed by the Defendant or certainly most of them, have been at the upper end of the scale in terms of seriousness. On the evidence, they were accompanied by threats of violence as well as actual violence and subjected the victims to gruelling experiences. 43 The Plaintiff submits that a clear pattern is apparent in respect of the Defendant's sexual offences. His victims were all young women aged between 16 and 24 years. The victims are sometimes strangers and sometimes persons whom he had known (but not well) for a short period of time. The Defendant meets them and then takes them by surprise in a secluded location. Violence is involved. That is an accurate summary of the history of the Defendant's sexual offences which I have outlined earlier in this judgment. 44 Section 17(4)(i) requires consideration of any other information that is available as to the likelihood that the offender will, in future, commit offences of a sexual nature. There is contained within the voluminous information in evidence a variety of reports, some going back to the 1970's, which do not assist the Defendant. The Plaintiff submits, firstly, that the Defendant's history of offending shows that he is violent and refers, in that respect, to the report of Dr Reid, consultant psychiatrist, of February 1978 and a report of Dr Wong, psychiatrist, of 1980, which provide support for that submission. 45 Secondly, the Plaintiff submits that the Defendant has shown limited insight into his sex offending. Particular attention is drawn to the opinion of Ms Dumasia, based upon the Defendant's history and her recent assessment of the Defendant. 46 Thirdly, the Plaintiff submits that the Defendant is now very institutionalised and that this, in itself, raises questions about his ability to integrate into the community. Reference is made to a number of documents in evidence that point to institutionalisation of the Defendant. It must be said that any person who has spent 35 of the last 38 years in prison is likely to be heavily institutionalised. The evidence adduced on this application provides significant support for that conclusion. There have been, it appears from the evidence, occasions when upon the Defendant's release into the community, he has reported anxiety and a lack of coping mechanisms of a type indicative of institutionalisation. 47 It is, of course, regrettable that long periods of incarceration produce institutionalisation. It is, however, a fact in this case, which would need to be taken into account in any assessment as to the Defendant's ability to survive in the community without the prospect of committing further offences of a sexual nature. In this case, it is a factor which poses a significant difficulty for the Defendant. 48 It is necessary to consider again, for the limited purpose unders.16, whether supervision will not adequately guard against risk. In this respect the Plaintiff refers to the entirety of the evidence and submits that the assessment of the Defendant as being at a high risk of sexual re-offending goes to the insufficiency of supervision to guard against that risk. In this respect, the Plaintiff submits that the Defendant has shown little insight into his behaviour and little remorse, that he has an extensive history of non-compliance with parole orders and is, in truth, an untreated sex offender. 49 The Plaintiff submits that there are no facilities in the community to treat a sex offender presenting the Defendant's high level of risk. It is submitted, by reference to affidavits of Ms Lyden, that electronic monitoring equipment will not reduce the likelihood of the Defendant re-offending. The Plaintiff submits that it cannot be assumed that it will be possible to regulate the Defendant's sexual impulses through anti-libidinal medications given his cardiac condition. 50 In order to assess whether or not to make a continuing detention order or an extended supervision order, the Court must have regard to the factors set out in s.17(4) of the Act. Of course, I am considering those factors for the limited purpose of s.16(1)(b) of the Act. I accept the Plaintiff's submission that, when the supporting documentation filed is viewed in light of s.17(4), the Court can safely conclude that the matters alleged in that documentation would, if proved, justify the making of either a continuing detention order or an extended supervision order. In those circumstances, the Plaintiff submits that the Court should proceed to make orders under s.15 and s.16 of the Act. 51 As mentioned earlier, the Court has a discretion to make an interim detention order under s.16. No submission has been made for the Defendant that the Court ought decline to make an order on discretionary grounds. In my view, there is no discretionary basis to decline to make an order in this case. I am well satisfied that an interim order under s.16 ought be made. As mentioned earlier, the Defendant consents to an order for psychiatric examination under s.15. In any event, I am well satisfied that a s.15 order ought be made. 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