Citation: State of New South Wales v Thomas [2008] NSWSC 640
Court: Supreme Court of New South Wales
Date: 11 June 2008
Judge(s): Johnson J
Background
The defendant was serving a 12-year sentence imposed in October 1996 for a serious sexual assault offence. That sentence was due to expire on 11 July 2008, just weeks after the hearing. The State of New South Wales brought proceedings under the Crimes (Serious Sex Offenders) Act 2006 seeking orders to prevent his unconditional release into the community.
The defendant had an extensive criminal history encompassing both sexual and non-sexual offences. Psychological assessments rated him at high risk of sexual re-offending. He had also demonstrated a significant history of non-compliance with parole conditions.
The State sought two distinct forms of relief at the one hearing: a preliminary order requiring the defendant to undergo psychiatric examination, and an interim detention order to operate from the date his sentence expired.
Legal Issues
- Whether the supporting documentation satisfied the threshold under s.15(4) of the Act, specifically whether the evidence would, if proved, justify making either a continuing detention order or an extended supervision order.
- Whether an interim detention order should be made under s.16(1) to detain the defendant for 28 days commencing 11 July 2008, pending final determination of proceedings.
- How the s.16(1)(b) test should be construed, including whether it imposes an evidentiary or legal burden, and what it requires the Court to assess at the interim stage.
- Whether the Court should exercise its discretion to make an interim detention order given the defendant's risk profile, compliance history, and the adequacy (or otherwise) of supervision in the community.
Decision
Johnson J accepted the State's submission that the phrase "if proved" in s.16(1)(b) imposes an evidentiary rather than a legal burden. The court is not required to weigh the evidence or predict the ultimate outcome; it need only be satisfied that there is a prima facie case. This approach aligned with the earlier decision of Price J in Attorney-General for New South Wales v Hayter and the Court of Appeal's guidance in Tillman.
The court identified a multi-limbed test for making an interim detention order: the defendant's current custody must be due to expire before proceedings conclude; the supporting documentation must contain evidence addressing each factor in s.17(4); and the evidence, if unrebutted, must demonstrate to a high degree of probability both that the defendant is likely to commit a further sex offence without supervision, and that an extended supervision order alone would not adequately guard against that risk.
Applying that test, Johnson J was satisfied that all preconditions were met. The documentation established a pattern of serious offending spanning decades, a high-risk psychological assessment, limited insight or remorse, a history of parole non-compliance, and practical constraints on supervision in the community including the unavailability of anti-libidinal medication due to the defendant's cardiac condition and the limitations of electronic monitoring.
No argument was advanced for the defendant on discretionary grounds against making the order, and the court found no basis to decline on discretion. Both the s.15 psychiatric examination order and the s.16 interim detention order were made.
Orders Made
- An order under s.15(4) of the Crimes (Serious Sex Offenders) Act 2006 for the appointment of two qualified psychiatrists to conduct psychiatric examinations of the defendant, with a direction that he attend those examinations.
- An interim detention order under s.16(1) of the Act detaining the defendant in a correctional centre for a period of 28 days commencing 11 July 2008.
Key Takeaways
- Under s.16(1)(b) of the Crimes (Serious Sex Offenders) Act 2006, the threshold for an interim detention order is evidentiary, not legal: the court must be satisfied that a prima facie case exists, without weighing evidence or predicting the final outcome.
- The interim detention test has multiple requirements: imminent sentence expiry, supporting documentation addressing each s.17(4) factor, and evidence that, if unrebutted, demonstrates to a high degree of probability both a likelihood of further sex offending and the insufficiency of extended supervision alone.
- Consistent with the Court of Appeal's reasoning in Tillman, a court exercising the s.16 function is not required to consider evidence a defendant might call at the final hearing when assessing the interim threshold.
- A defendant's practical limitations, including a medical condition precluding anti-libidinal treatment and a demonstrated history of non-compliance with parole, were relevant considerations in assessing whether supervision in the community would adequately guard against risk.
- Consent to a s.15 psychiatric examination order does not extinguish the court's independent obligation to assess whether the threshold for such an order is met; Johnson J confirmed the order was justified regardless of the defendant's consent.
Legislation and Cases Referenced
Legislation:
- Crimes (Serious Sex Offenders) Act 2006 (NSW), ss. 15, 16, 17
- Crimes Act 1900 (NSW)
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Child Protection (Offenders Prohibition Order) Act 2004 (NSW)
Cases:
- Attorney-General for New South Wales v Hayter [2007] NSWSC 983
- Attorney-General for New South Wales v Tillman [2007] NSWCA 119