Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Thurston [2017] NSWSC 1760 Hearing dates: 07 December 2017 Date of orders: 07 December 2017 Decision date: 14 December 2017 Jurisdiction: Common Law Before: Rothman J Decision: The Plaintiff to file and serve a Short Minute reflecting reasons for judgment. Catchwords: HIGH RISK OFFENDER – application for ISO – index offence murder – defendant on parole – statute requires reference to allegation not evidence but allegations must be reasonably based – allegations are reasonably based and, if proved, would warrant ESO – conditions imposed identical to parole conditions, necessary changes being made. Legislation Cited: Crimes (High Risk Offenders) Act 2006 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Kentwell v R (No 2) [2015] NSWCCA 96 Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57 R v Lamb & Thurston [2002] State of NSW v Banks [2016] NSWSC 926 State of NSW v Mills (No 2) [2017] NSWSC 1442 Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) Edward George Thurston (Defendant) Representation: Counsel: G Wright (Plaintiff) A Cook (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2017/00311971 EX TEMPORE Judgment 1. HIS HONOUR: Before the Court is an application by Summons by the State of New South Wales for orders under the Crimes (High Risk Offenders) Act 2006 ("the Act") firstly of a procedural nature being the appointment of qualified psychiatrists and/or psychologists to assess the defendant; and, secondly, orders for an Interim Supervision Order ("ISO") to date from 29 January 2018 when the defendant's parole will cease. 2. The defendant, Mr Thurston, was born on 8 August 1975; has a criminal history, which is before the Court, attached to the second Affidavit of Mr Loosley of 24 November 2017. He has a significant history from an early age including acts of violence to which I will come, although not in great detail, later in these reasons. 3. On 29 October 2000 Mr Thurston was involved in a murder. It is perhaps appropriate to refer to a number of matters. The first of them is in the judgment of his Honour Dunford J on sentence: R v Lamb & Thurston [2002] NSWSC 1025. His Honour said at [12]: "The injuries inflicted on the victim were horrific. The autopsy revealed the presence of multiple blunt force injuries to the head, neck and trunk including extensive bruising to the face and scalp, fractures of the facial bones and skull, and injury to the underlying brain. The injuries to the neck included fractures of the larynx. Ill-defined areas of bruising and numerous abrasions were also present on the upper limbs and trunk, there were numerous fractured ribs on both sides of the chest and bruising of the lungs. There was injury to the heart and to a number of structures around the heart. There was also a small amount of bleeding around the left adrenal gland. The pathologist, Dr Sugo, identified 27 separate lacerations or areas of bruising to the head and neck, fractures of all ribs on both sides, except the first, and the ribcage was in effect crushed. All injuries sustained were consistent with kicking and stomping on the deceased while he lay on his back, on the ground, and it can only be described as a frenzied and vicious assault by two young men on a defenceless man considerably older than themselves." 1. Essentially, the conclusion of his Honour Dunford J was that the injuries were horrific and that even though this was a joint criminal enterprise, the defendant was involved, himself, in the infliction of serious injury. His Honour relied upon footprints which, together with other material, showed the defendant's involvement in kicking the deceased. 2. On 1 November 2002, in the Remarks on Sentence delivered by his Honour Dunford J, the defendant was sentenced to a term of imprisonment for the murder of seventeen years commencing 30 January 2001 with a non-parole period of 12 years and nine months. As a consequence the defendant has been eligible for parole since 29 October 2013. Parole was refused on a number of occasions. 3. Nevertheless, on 14 June 2017, Mr Thurston, the defendant, was released to parole and the head sentence expires on 29 January 2018. In accordance with the requirements of the Act and meeting the procedural gateways, the State of New South Wales filed the Summons on 16 October 2017. What is sought in the proceedings today is an interim order pending the receipt of any assessment and the argument of any matter involving a final hearing. 4. The co-offender of the accused was his stepbrother and they grew up together on a mission in Collarenebri. The background to the murder was that the defendant, with his stepbrother, spent most of the day drinking wine and smoking marijuana with a number of other young Aboriginal youths in the Coledale area. 5. The Remarks on Sentence disclose that the defendant met up, in the company of his stepbrother, with the deceased in a park and drank some more wine. They asked for another drink and the deceased indicated it would be the last, wishing to keep his wine for the next day. 6. The deceased went to leave and one or other or both of the offenders decided to rob the deceased of his wine. The co-offender punched the deceased and both offenders kicked him and stomped on him. 7. I have to say, the defendant's background bespeaks significant hardship and dysfunction, which the sentencing judge took into account in determining the sentence to be imposed. 8. I return to the history of the Defendant. He has other convictions for violence including robbery in company, and with striking, and convictions for assault occasioning actual bodily harm. While he was in custody, the Defendant sustained a number of charges involving violence or intimidation, or both, including an assault charge that resulted in a six month gaol sentence. And there were threats of violence of which the Court has a note, on or about 21 December 2016. The assault to which I have referred occurred on or about 22 May 2005. 9. What is clear from the reports before the Court, on which the State of New South Wales relies, is that the consumption of alcohol and illicit drugs has played a significant part in the offending of the defendant. Alcohol and drug abuse continued, it seems, on the criminal record and custodial record during the course of incarceration of the Defendant. That is a matter of some concern and a matter which must be taken into account, if any supervisory conditions were to be imposed. 10. Prior to the parole, there were previous community supervision issues but it has to be said, as has been relied upon heavily by his counsel, that, since his parole in June 2017, his conduct seems to have been extremely positive and exemplary. Of course, he is under supervision at the moment and during the time that that improvement in behaviour has occurred. 11. The Court is required, pursuant to the terms of s 7(4) and s 10A of the Act in dealing with an application for an ISO to determine whether it is satisfied that the matters "alleged in the supporting documentation would, if proved, justify" the making of an ESO. 12. If the Court is so satisfied, the Court is required to make an ISO and is required to make orders relating to the attendance at an appointment with psychiatrists and/or psychologists. Section 7 of the Act expressly requires the Supreme Court to make orders in relation to the psychiatric examination and attendance at the examination. The terms of s 10A of the Act poses the same test for the making of the ISO. 13. The defendant's counsel has put in strong terms that the evidence before the Court is not sufficient to enable the Court to be satisfied that the defendant is an unacceptable risk. I adopt the test as to "unacceptable risk" outlined by the Court of Appeal in Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57, and referred to by me in the judgment in State of NSW v Banks [2016] NSWSC 926. 14. It seems to me that the previous debate within the Court as to whether the determination of unacceptable risk involves consideration of the draconian effect of the orders on the defendant is an interesting and informative debate. The view I take, and have taken before, is that unacceptable risk, in accordance with the judgment in Lynn, supra, and otherwise, involves a determination in the ordinary way of the term and does not involve a balancing exercise between that which is unacceptable and the draconian effect of the orders. However, a discretion exists to make an order and that discretion necessarily involves the effect of the orders on the defendant and in particular I refer to the provisions of s 9 of the Act. 15. I have already referred to the judgment of the Court of Appeal in Lynn, supra. I have also referred to the test at the preliminary hearing under s 7(4) of the Act. Section 10A of the Act reflects the ISO issue in the same way as s 7 reflects the issues associated with the appointment of psychiatrists and/or psychologists by the Court. 16. The next matter with which I wish to deal is how that impacts upon the determination of the Court at an interim level. The view I take of the provisions of s 7(4) relating to the requirement to appoint a psychiatrist and the provisions of s 10A(b) are that the State is not required to prove the allegations it makes, so long as the State does prove that the allegations it makes are reasonably based. 17. The determination of the evidence and whether proof has occurred is a determination that occurs at the final stage when orders are made under s 9; and not at the interim stage. At the interim stage, as is made clear in the provisions of s 7(4) and in s 10A(b), the issue is whether there are matters alleged in the supporting documentation and, assuming those matters are proved, do those matters give rise to the making of an ESO? 18. As has been said on a number of occasions in this Court, in relation particularly to the dysfunctional upbringing that is associated with many offenders and as has been made clear by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 in particular, there are very good reasons to factor into offending the issues of disempowerment and social exclusion and dysfunctional upbringing. 19. I refer in particular to the judgment in the Court of Criminal Appeal in Kentwell v R (No 2) [2015] NSWCCA 96 and the comments of the Chief Justice and myself. That, of course, was said in the context of sentencing but the same issues apply here but may have a different effect resulting in modifications of the conditions, rather than the other issues. It must be said that the current regime under which Mr Thurston is operating is a regime which obviously has had significant benefits to him and to society as a whole. 20. The matters that are raised on his behalf are largely issues that, in my view, go to the question of final orders; rather than interim orders. But they also relate, if an interim order were to be made, to the conditions that should be imposed. 21. The discussion that has occurred in relation to sentencing between the balancing of the rehabilitation of the defendant and the safety of the community is an important one. Ultimately, the safety of the community is best guaranteed by the full rehabilitation of the defendant. At the same time, the rehabilitation of the defendant is best achieved by imposing conditions that are not crushing and that encourage an offender to a safe attitude in the community. 22. The matters that are alleged in the application before the Court involve a number of assessments. In particular the report of Dr Parker assesses the defendant by static and active means. It is necessary for me to recite some extracts of that report. At paragraph 18 and following, when dealing with the index offence of murder, Dr Parker refers to the effect of alcohol and illicit drugs. 23. At paragraph 26 Dr Parker refers to a pre-sentence report which refers to some orders involving supervision and community service that were unsatisfactorily completed and/or breached. At paragraph 34, he refers to the theoretical basis upon which violent behaviour may be ameliorated and then deals with the risk assessment instruments in detail. 24. Dr Parker notes, at paragraph 58, to which my attention was drawn by the defendant's counsel, that, because of the current age of the defendant, he is "well past the peak age for violent offending", which he noted, by reference to textbook analysis, diminishes either precipitously or significantly after the age of 30. 25. Nevertheless, at paragraph 64, Dr Parker, who is a senior psychologist with the Serious Offenders Assessment Unit, comes to this conclusion: "Mr Thurston is a 41-year-old man who is estimated to be at high risk of further violent offending. This assessment is anchored by static, unchangeable factors, and backed up by the identification of a number of criminogenic needs. While he has completed the VOTP [the Violent Offenders Treatment Program] and engaged in an extended period of maintenance counselling, it is likely that he will need an extended period of strict monitoring to implement and consolidate the skills and attitudes he learned in that program." 1. At paragraph 65, without reciting large extracts of it, Dr Parker comes to the conclusion that: "It is likely that he [the defendant] will benefit from intense supervision and case management by Corrective Services New South Wales." 1. At paragraph 66, in reference to an unsupervised time in the community on 29 January 2018 and thereafter, Dr Parker considers it likely that the defendant: "…would gravitate to antisocial acquaintances and resume his previous lifestyle. Whether the potential risk of Mr Thurston being left unsupervised in the community would be considered 'unacceptable' is a matter to be determined by the court." 1. Ms Cook, who represents the defendant in the proceedings, notes and submits that the report of Dr Parker, given as it was in June 2017, had not taken account of the behaviour of the defendant during the course of the parole. I accept that submission, at least to some extent. 2. The difficulty I have is the allegation is made as to risk of violent offending and that allegation if proved at a final hearing would, in part, substantiate the making of an ESO. I say in part, because the reference is to violent offending, rather than the risk of offending in relation to a serious violence offence. 3. However, when one takes into account that the risk that is there being assessed is a risk of the defendant engaging voluntarily in a violent offence then we are talking about a violent offence with an intention of causing some serious bodily harm. That, of course, does not take the finding far enough. 4. Nevertheless, in the pre-sentence report, to which each of the parties has referred and which is attached to the Affidavit of Mr Loosely of 3 November 2017, the author refers, under the heading "Risk of Violent Re-offending", to Mr Thurston falling into "the high risk category of violent offending". That must be put in the context of a general re-offending risk that is medium for general re-offending. 5. In all of the circumstances, I am satisfied that the allegations made are reasonably based and the allegations are substantiated by evidence. Whether that evidence would ultimately satisfy the Court sufficiently for the making of a final order is a very different question. 6. For reasons which I have already outlined, at this point in time, that is not the question that I consider is before the Court. Indeed, that is one of the reasons that orders are sought for the appointment of psychiatrists. 7. The next issue comes to the question of what conditions should be applied. It seems to me s 11 of the Act gives the Court significant discretion as to the conditions that may be imposed in any supervision order, be it interim or extended. Ultimately, the balancing exercise involved in the determination of an ISO, or indeed an ESO, comes down to the balance between the issues to which I earlier referred. 8. Fundamentally, the most important aspect in the achievement of the purposes of this Act is the protection of the community and its safety. But that in itself involves a judgement as to what will achieve that safety and that protection. 9. I note that the State of New South Wales does not seek electronic monitoring for the defendant. It seems to me that much credit must be given to the defendant for the significant improvement in behaviour that has occurred during the course of his supervision on parole. 10. I should add one particular aspect. I note that the State of New South Wales seeks an order, in terms of paragraph 14 of the Schedule of Conditions, which would require the defendant, if unemployed, to enter available employment, if and as directed by his supervising officer. 11. On one view, this would involve the Court in allowing a form of slavery. There is no reference to wages, conditions or suitability of the employment. I have made comments to that effect in previous judgments on final relief: see State of NSW v Mills (No 2) [2017] NSWSC 1442 at [74] - [78]. 12. The foregoing is not a matter that I need to deal with in these reasons for judgment because I am satisfied, given the behaviour that has occurred since June 2017 that the appropriate conditions are those that have been imposed while the defendant has been on parole. 13. The flexibility which the State of New South Wales and, indeed, the defendant have in moving the Court for variations of those orders, allows that balance to be taken in a way that gives me more comfort. 14. The orders that the Court will make are in accordance with the Short Minutes as amended in accordance with these Reasons. I direct the plaintiff to file and serve a Short Minute. ********** 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: 14 December 2017