New South Wales Supreme Court CITATION : State of New South Wales v Thomas (Interim) [2009] NSWSC 1119 HEARING DATE(S) : 20 October 2009 JUDGMENT DATE : 20 October 2009 JUDGMENT OF : R A Hulme J DECISION : Psychiatrists appointed to examine and report; interim detention order made. CATCHWORDS : CRIMINAL LAW - serious sex offender - preliminary hearing - application for interim detention order or interim supervision order pending final hearing - prior breach of extended supervision order LEGISLATION CITED : Crimes Act 1900 Crimes (Serious Sex Offenders) Act 2006 Attorney General (NSW) v Hayter [2007] NSWSC 983 Attorney Geneeral (New South Wales) v Tillman [2007] NSWCA 119 Attorney General (NSW) v Winters [2007] NSWSC 1071; 176 A Crim R 249 CASES CITED : Cornwall v Attorney General (NSW) [2007] NSWCA 374 State of New South Wales v Manners [2008] NSWSC 1242 State of New South Wales v Thomas [2008] NSWSC 1340 The State of NSW v Fisk [2009] NSWSC 778 Tillman v Attorney General (NSW) [2007] NSWCA 327; 70 NSWLR 448 PARTIES : The State of New South Wales (Plaintiff) Bruce Malcolm THOMAS (Defendant) FILE NUMBER(S) : SC 14697/09 COUNSEL : Mr D Staehli SC with Ms S Callan (Plaintiff) Mr M Dennis (Defendant) SOLICITORS : I V Knight (Crown Solicitor) (Plaintiff) Peter Murphy (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION R A Hulme J 20 October 2009 14697/09 The State of New South Wales v Bruce Malcolm THOMAS JUDGMENT 1 HIS HONOUR: The State of New South Wales (the State), by summons filed on 6 October 2009, applies for a continuing detention order in respect of the defendant pursuant to s 14A of the Crimes (Serious Sex Offenders) Act 2006 (the Act). Before me today is the preliminary hearing of the matter pursuant to s 15 of the Act. 2 Mr Thomas is a sex offender within the meaning of s 4 as he has in the past been sentenced to imprisonment following conviction for a "serious sex offence" as defined in s 5(1)(a), being aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act 1900. 3 The application is brought under s 14A which permits the State to apply for a continuing detention order against a person who is found guilty of an offence under s 12, being an offence of failing to comply with an interim or extended supervision order. The offender was made the subject of an extended supervision order in proceedings determined by Adams J last year: State of New South Wales v Thomas [2008] NSWSC 1340. The order was made on 8 October 2008 and was for a period of 12 months. On 17 July 2009 at the Waverley Local Court the defendant was convicted and sentenced to imprisonment for 12 months, with a non-parole period of 9 months, in respect of 3 offences of failing to comply with that order. The sentences were each specified to have commenced on 22 January 2009. The defendant is due for release on parole on the expiration of the non-parole periods on 21 October 2009, that is, tomorrow. Issues for determination 4 The first question for me to determine is whether I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order: s 15(4). If I am so satisfied I must make orders appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant and to furnish reports to the Court and direct the defendant to attend those examinations. If I am not so satisfied I must dismiss the application: s 15(5). 5 On behalf of the defendant it has been conceded that I would be so satisfied. Indeed, it is the defendant's position that when the matter is finally dealt with the result should be the making of an extended supervision order. 6 The State also applies for an order that the defendant be subject to an interim detention order pursuant to s 16(1) for a period of 28 days from 21 October 2009. Such an order may be made if the defendant's current custody will expire before the proceedings are determined (s 16(1)(a)) and the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order (s 16(1)(b)). The defendant resists the making of such an order but concedes there should be an interim supervision order. 7 The task of the Court at the preliminary hearing stage is not to weigh up the documentation, or predict the ultimate result, or to consider what evidence the defendant might call at the final hearing: Attorney General (New South Wales) v Tillman [2007] NSWCA 119. The test is one that is similar to the prima facie case test applied by magistrates in committal proceedings: Attorney General (NSW) v Hayter [2007] NSWSC 983 at [6]: State of New South Wales v Manners [2008] NSWSC 1242 at [8]. Whether or not the defendant opposes the orders sought at the preliminary hearing, it remains a matter for the Court to determine whether the statutory criteria have been satisfied: Attorney General (NSW) v Hayter at [4]; New South Wales v Manners at [4]. 8 The power to make an interim detention order is enlivened upon the Court being satisfied that the matters alleged in the supporting documentation relied upon by the State would justify the making of either type of final order. That is, an interim detention order is capable of being made even if the matters alleged would only justify the making of an extended supervision order, provided the substantive proceedings contain a claim for a continuing detention order. Even if the Court is satisfied of both matters in s 16(1) it remains a matter for the Court's discretion as to whether to make a continuing detention order. See Attorney General for New South Wales v Tillman (supra) at [24] – [42]. 9 The question of whether the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order (s 15(4)) requires consideration of the provisions of s 17. That section provides for the determination of applications for a continuing detention order. The Court may determine such an application by making an extended supervision order, or by making a continuing detention order, or by dismissing the application: s 17(1). An extended supervision order may be made if and only if the Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision: s 17(2). A continuing detention order may be made if an only if the Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order: s 17(3). 10 The "high degree of probability that the offender is likely to commit a further serious sex offence" requirement is not without difficulty. Authority which I must follow has held that "likely in s 17(2) and (3) denotes a degree of probability at the upper end of the scale, but not necessarily exceeding 50%": Tillman v Attorney General (NSW) [2007] NSWCA 327; 70 NSWLR 448 at [89], followed in Cornwall v Attorney General (NSW) [2007] NSWCA 374. Whether that is to remain an authoritative construction of the word in this context remains to be seen: The State of NSW v Fisk [2009] NSWSC 778 per Howie J at [24]. The alternative construction discussed in the authorities is that of McClellan CJ at CL in Attorney General (NSW) v Winters [2007] NSWSC 1071; 176 A Crim R 249 at [50] where his Honour held that "likely" in this context meant "more likely than not" 11 In determining whether or not to make a continuing detention order or an extended supervision order the Court must have regard to the matters listed in s 17(4) in addition to any other matter it considers relevant. Given the application in the present case is brought under s 14A it is also necessary that the Court have regard to the nature of the failure to comply with the requirements of the earlier extended supervision order and the likelihood of further failures to comply: s 17(4A). 12 In considering these issues the primary object of the Act should be borne in mind. It is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community: s 3(1). Another object of the Act is to encourage serious sex offenders to undertake rehabilitation: s 3(2). The defendant's offending history 13 The defendant has a long history of committing criminal offences, particularly sexual assault offences. The sexual assault offending commenced with the assault of a 17 year old female on 21 December 1968 when the defendant was 21 years of age. 6 weeks after a good behaviour bond was imposed for that offence he committed an offence of buggery against a 23 year old female. He was sentenced to imprisonment for 7 years with a non-parole period of 5 years. He was released from custody in 1975 but in January 1978 committed an offence of rape against a 16 or 17 year old female for which he received a sentence of 8 years with a non-parole period of 3 years. He was released on parole in July 1981 but in November of that year committed an offence of sexual intercourse without consent. For that offence he was sentenced to 4 years 10 months with a non-parole period of 2 years 2 months. He was released on parole in August 1984. In November 1985 he committed an offence of indecent assault and was sentenced to imprisonment for 9 months. After his release in respect of that sentence he received other sentences, most notably a sentence of 15 years with a non-parole period of 11 years which was later quashed by the Court of Criminal Appeal when his appeal against conviction was allowed. Nevertheless, whilst he was on parole in respect of that sentence he committed an offence of aggravated sexual intercourse without consent for which he was sentenced to 12 years with a non-parole period of 9 years. The sentence commenced on 12 July 1996. He was not granted parole and served the full-term of that sentence. 14 The details of the earlier offences are sparse. The first offence involved the defendant kissing a 17 year old acquaintance and then, he said, "I got carried away and went too far". He conceded that the complainant's allegations of violence "could be right". What he actually did is unknown. The next offence involved him dragging the 23 year old victim into his house, hitting her and then having forceful anal intercourse. The third offence arose from circumstances in which he and another man were travelling in a car and picked up the 16 or 17 year old victim, her 17 year old male friend and her 13 year old sister. They were driven into bushland against their wishes where the defendant dragged the victim into the bush, threatened her with a gun he claimed to have, and digitally penetrated her before having forced vaginal intercourse. The next offence occurred when the defendant was working as a bouncer at a disco. He met the 23 year old victim and bought her some drinks before she went home. He followed her home but on the way grabbed her and had forcible vaginal intercourse. A little over a year after being released on parole he met a woman at a social security office, left and travelled on the same bus with her and managed to persuade her to allow him to enter her home on being requested to provide him with a cup of tea. He grabbed her and fondled her breasts, threatening to "break every bone in (her) body" if she told the police. Fortunately he took heed of her distressed demands for him to leave the house. A month after a subsequent release on parole he committed perhaps the most serious of this catalogue of offences. He turned up unannounced at the home of the girlfriend of a former cellmate and persuaded her to invite him in for a cup of tea. He quickly produced a large carving knife and proceeded to commit a succession of sexual assaults over a period of about three hours, sometimes in the presence of the victim's three year old son. 15 The defendant has now spent close to 35 of the last 40 years in custody and there is material suggesting he is institutionalised. 16 The material before me is largely the same as was before Adams J last year. I do not propose to set it out in any detail. I am grateful for the summary that appears in his Honour's judgment. At the risk of doing a disservice to his Honour's analysis, the situation may be briefly summarised. The defendant has an antisocial personality disorder and has exhibited behaviours as a manifestation of that disorder since his early teenage years. He has committed sexual offences, some of the utmost gravity with violence or threats of violence, on six occasions between 1969 and 1996. Offences have been committed whilst in the community on conditional liberty by way of good behaviour bond and parole. The most serious offence was the last which was committed only a month after parole release. 17 The defendant has been assessed as being at high risk of re-offending. His credibility was found wanting by Adams J who said at least twice in his judgment that he did not believe him. In considering whether to release him under supervision or to make a continuing detention order, his Honour remarked that the fear of a return to prison if he did not fully comply with the conditions of a supervision order was powerful consideration in favour of making a supervision order, notwithstanding the defendant's commission of serious offences in the past in breach of parole undertakings. He noted that the level of supervision and control to which the defendant could now be subjected was far greater than was possible in the past. He noted that the commission of any criminal offence, not just a serious sex offence, would result in the defendant being returned to prison. So too would the failure to comply with other stringent requirements of a supervision order. As a result, his Honour said that he was satisfied that, "supervision in accordance with the order and whilst he is resident in COSP accommodation is adequate to ensure that it is not likely that he will commit a further sex offence whilst under supervision": State of NSW v Thomas (supra at [71]). The reference to "COSP" was to the Community Offender Support Program centre at Malabar. Events after release on extended supervision order 18 There were 29 conditions of the extended supervision order (ESO). They included that he accept the supervision and guidance of the Probation and Parole Service (which included the Community Compliance Group of the Department of Corrective Services), that he comply with any reasonable direction given by supervising officers, that he give advance notice of his proposed movements and obtain prior approval for any proposed change, and that he not possess or consume any illicit drugs. 19 He was released from custody on 8 October 2008 and proceeded to the COSP centre. He disclosed in an induction interview that he had used cannabis the night before. He told the interviewing staff member that he needed to obtain some strong pain relief "so will not smoke pot". He signed a document headed "Core Rules" which set out the rules that residents of COSP must comply with. They included that there was to be no smoking on the premises except in designated areas and not to bring on to the premises or have in possession any illegal drugs or drug paraphernalia. 20 On 10 October 2008 the defendant acknowledged a number of requirements by signing a "formal written direction". It included that he was "not to be in possession and or use …(a) prohibited drug or substance". He acknowledged that breach of any of the directions in this document would be considered a breach of the ESO and could result in being returned to prison. 21 A drug analysis test on 10 October 2008 was clear. 22 In an Offender Intake Data Form completed on 29 October 2008 the defendant's history included that he had smoked cannabis since the age of 9 and had been using that drug whilst in the prison at the rate of 16 grams per week. This document includes that in relation to his latest sexual offence he said that he had pleaded guilty but he was in fact not guilty. He alleged that he was "framed (set up by victim)". 23 On 22 November 2008 the defendant was abusive, argumentative and threatening towards an accommodation support worker over an issue of when he would complete some chores that had been assigned to him. 24 The following day the same accommodation support worker recorded that the defendant had been argumentative about a request that he be permitted to leave the premises in order to visit a sick family friend at Woy Woy. He was told he would not be permitted to leave without prior approval of his schedule. He became abusive and threatened to kick the gate in if it was not opened for him. The author also noted that the defendant had been playing games and pushing boundaries. He had constantly been spoken to about sexualised comments to female staff, smoking within the buildings and failure to do chores properly. 25 The Senior Compliance and Monitoring Officer of the Campbelltown Community Compliance Group (CCG) reported the defendant on 29 November 2008 for being in breach of his ESO. He had been found to be in possession of cannabis and implements used for ingesting the same. He admitted that he had been using cannabis away from the centre. The report also mentioned the defiant behaviour I have referred to above. It was recommended that the ESO be revoked. THC was detected in a drug test performed on 29 November 2008. On the evening of 29 November 2008 the offender was arrested and charged with failure comply with his ESO. He remained in custody until released on bail on 2 December 2008. 26 Before returning to the COSP centre on the evening of 2 December 2008 the defendant was seen at the Westfield Eastgardens shopping centre asking members of the public for directions to Anzac Parade. He told a number of people that "he had just been released from jail for rape, and it was worth every minute of being in jail for the enjoyment he got out of what he had done". 27 Back at the COSP centre the defendant was searched. A small quantity of green matter was found which was subsequently surrendered by staff to the police. Four days later, on 6 December 2008 the defendant was again found to be in possession of a small quantity of green vegetable matter which was also surrendered to the police. On 8 December 2008 the defendant was arrested and charged in respect of his possession of 0.3 grams of cannabis leaf and also with failure to comply with the ESO. He was released on bail after appearing at Waverley Local Court on 9 December 2008. 28 On 13 January 2009 the defendant was found to be in possession of items of clothing that were suspected of having been stolen. He was charged with an offence of goods in custody. The items of clothing comprised four T-shirts and five pairs of socks. He was also charged with failure to comply with the ESO. 29 On 21 January 2009 the defendant wrote a "Statement of Request" which was said to be for "the right to live in peace for what life I have left". Reference was made to him "trying to (do) my best to follow your unlawful laws". It concluded: I would like to bring to your notice that you are wasting my short life and your sanity by trying to force me into anything unlawful. If these reasonable requests cannot be met could you please return my case to court ASAP. (Spelling errors corrected). 30 On 19 January 2009 the offender acknowledged by signing a "formal written direction" requirements that he not to go into any retail store without prior approval and that he fulfil the daily reporting condition of his bail undertaking by leaving the centre at 8.00am and return to the COSP centre no later than 9.30am. This had been preceded by a verbal direction to that effect on 15 January 2009. On 16 January 2009 he returned to the centre at 10.20am and he was in possession of items purchased at a retail store that had not been approved. On 19 January he returned at 10.09am. On 20 January he returned at 9.45am. On 21 January he was approved to attend an office of the Department of Housing at Maroubra between 1.00pm and 3.30pm. He returned at 4.20pm. He explained that he had been to Broadway to see Prisoners Aid in relation to obtaining a birth certificate. He did not have approval for this. His satellite tracking unit was not operational and appeared to have gone flat. It is said that this can be caused by incorrect or insufficient charging by the offender. On 22 January the offender reported to Maroubra police as required at 9.07am. Rather than returning to the centre he proceeded to go to the Sydney CBD where he was located at various locations. He returned to the centre at 3.25pm. These matters all constituted breaches of conditions of the ESO (conditions 1, 3 and 4) that he accept supervision and guidance for the term of the order, that he comply with any reasonable direction, and that he inform his supervising officer of movements in advance on a weekly basis and obtain prior approval for any proposed change. 31 On 21 January 2009 the defendant's tracking device was located in the grass in front of his room in the rain. Apparently a tracking device left in the rain has a likelihood of malfunctioning. This was a breach of a condition of the ESO (condition 8) that he comply with all instructions in relation to the operation of the equipment and must not tamper with or remove such equipment. For this, and the other breaches referred to earlier, it was recommended on 23 January 2009 that the ESO be revoked immediately. 32 On 22 January 2009 he was charged with failure to comply with his ESO on 16 January 2009. Bail was refused. He has been in custody since that date. After he was taken into custody he was found to be in possession of some items of jewellery. A charge of goods in custody was preferred. 33 On 12 May 2009 the offences of goods in custody and failure to comply with the ESO of 13 January 2009 came before Waverley Local Court. The latter offence was dismissed but for the former the defendant was sentenced to 1 month imprisonment from 22 January 2009. 34 On 23 June 2009 the offence of goods in custody in relation to the jewellery was dealt with at Central Local Court and a 2 month term of imprisonment dating from 22 January 2009 was imposed. 35 All of the other outstanding charges were determined at Waverley Local Court on 17 July 2009. He was convicted of the offences of failing to comply with the ESO on 29 November, 6 December 2008 and 16 January 2009 and sentenced in each case to imprisonment for 12 months with a non-parole period of 9 months with all sentences specified to commence on 22 January 2009. For the offence of possessing a prohibited drug on 6 December 2008 there was a sentence of 3 months commencing on the same date. Consideration of matters in s 17(4) 36 The "safety of the community" (s 17(4)(a)) is an overriding consideration. The defendant has demonstrated by his commission of serious offences that he has in the past presented a danger to the safety of the community. 37 The reports of psychiatrists and psychologists that are before me at this stage are, in the main, the same that were before Adams J last year. I have briefly touched upon some of the major issues that emerge from them but otherwise refer to the summary of that material in his Honour's judgment. The most significant issue is the assessment of the defendant being at high risk of re-offending if released without being required to engage in a structured and supervised management program in the community. 38 The defendant has been assessed on the STATIC-99 actuarial tool for predicting the risk of re-offending at a "high level" category. This is a tool that is of quite limited utility for reasons discussed by Adams J at [28] – [32]. 39 A more recent report is a Risk Assessment Report by Mr Patrick Sheehan, senior specialist psychologist of the Department of Corrective Services Serious Sex Offenders Review Group. It is lengthy and I do not propose to review it in detail. It notes that "little appears to have changed regarding Mr Thomas since the previous application". He concludes that if the defendant were to receive another extended supervision order it may be unlikely that he would be able to complete it successfully. If he were to receive a continuing detention order the best possible outcome would be that he participate in the CUBIT (Custody-based Intensive Treatment) programme. 40 The defendant has not completed any sex offender rehabilitation programmes. He has resisted engaging with the CUBIT programme because he has claimed that he does not want to have to mix with paedophiles. 41 The defendant has a serious heart condition and his life expectancy is substantially reduced. However, there was evidence before Adams J to the effect that this condition was not such as would render him incapable of committing a serious sex offence. 42 Compliance with obligations to which the defendant has been subject while on release on parole or while subject to an earlier extended supervision order (s 17(4)(f)) and the likelihood of further failures to comply (s 17(4A)) are factors which weigh heavily against the defendant. The history of his offences shows repeated offending whilst in the community on conditional liberty, sometimes within a short period of time after release from custody. The history of his conduct whilst subject to the extended supervision order imposed by Adams J demonstrates a continuing attitude of defiance. There is nothing before me on this preliminary hearing that would indicate that he would behave any differently if once again released. His infractions of the rules of the COSP centre were, in the scheme of things, relatively minor. More significant, however, is his deliberate flouting of the requirements as to the places where he could go, and when. None of his previous sexual offences involved premeditation or planning to any significant extent. They largely involved victims he met by chance with offences committed in circumstances that were opportunistic. With the defendant having a defiant attitude as to his movements despite directions and monitoring there remains a risk that he could find himself in similar opportunistic situations in the future if released into the community. 43 Professor Greenberg did not diagnose the offender with a sexual disorder but found that his primary motive for sexual offending was sexual gratification. He reported that the defendant "believes that he has the right to have sex with women". He found the defendant to be in the "high risk" group category with regard to the potential for further acts of sexual offending. He said: Mr Thomas' prognosis is generally guarded at this time without significant changes to his pattern of maladaptive behaviours. … the risk for re-offending could in my opinion be partially reduced with successful treatment. Despite the benefits of treatment, I am of the view that Mr Thomas would however remain a relatively high risk for re-offending in the short term. 44 That was Professor Greenberg's view prior to the release of the defendant last year. There is no evidence before me of any change in his "pattern of maladaptive behaviours", nor that there has been any "successful treatment" that would partially reduce the risk for re-offending. Conclusion 45 Having regard to these considerations I am satisfied, on the basis of the material relied upon by the plaintiff alone, and without by any means expressing any concluded view as to what the final outcome of the proceedings might be, that the matters alleged would, if proved, justify the making of a continuing detention order or extended supervision order. I have made this assessment independent of the concession made on behalf of the defendant. In coming to this conclusion at the preliminary hearing level I am satisfied that the material is capable of establishing to high degree of probability that the defendant is likely to commit a further serious sex offence if he is not kept under supervision. I am satisfied of this on the construction of "likely" in the Tillman sense as well as in the Winters sense. Whilst it is unnecessary for me to form any final conclusion at this point as to whether "adequate supervision will not be provided by an extended supervision order" (s 17(3)) for the reasons given earlier, I conclude on the material presently available that it would not. It is, in my view, appropriate to make an interim detention order. Orders 46 I make orders for the continued detention of the defendant, for the appointment of two psychiatrists to conduct separate psychiatric examinations, and for the further listing of the matter in accordance with the short minutes of order. ********** 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. 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