Citation: State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
Court: Supreme Court of New South Wales
Date: 24 February 2011
Judge(s): R A Hulme J
Background
The defendant had a lengthy history of serious sexual offending spanning more than four decades. In 2008 an extended supervision order (ESO) was made, but the defendant breached it on multiple occasions. In December 2009, Hulme J replaced that order with a continuing detention order (CDO) for 18 months.
While serving the CDO, the defendant completed the Custodial-Based Intensive Treatment (CUBIT) program, a rehabilitation program for high-risk sex offenders. That participation led the State to apply for a five-year ESO to replace the remaining period of the CDO, on the basis that community supervision had become more appropriate than continued detention.
Because the Crimes (Serious Sex Offenders) Act 2006 (the Act) contains no mechanism for substituting one type of order for another, the State's summons also sought revocation of the existing CDO under s 19(1) of the Act. The preliminary hearing before Hulme J on 24 February 2011 considered whether the supporting documentation was sufficient to warrant appointing two psychiatrists to examine the defendant.
Legal Issues
- Whether the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order under s 7(4) of the Act
- How the new "unacceptable risk" test in s 9(2) of the Act (introduced by the Crimes (Serious Sex Offenders) Amendment Act 2010, effective 7 December 2010) should be interpreted, in particular how it differs from the previous "likely to commit a further serious sex offence" formulation
- The relevance of the defendant's completion of the CUBIT rehabilitation program to the preliminary hearing threshold
Decision
Hulme J noted that the preliminary hearing stage does not require the court to weigh evidence, predict the final outcome, or consider what the defendant might later call in rebuttal. The applicable test resembles the prima facie case standard used by magistrates in committal proceedings.
The central interpretive question concerned the amended s 9(2), which now asks whether an offender "poses an unacceptable risk" of committing a serious sex offence, rather than whether offending is "likely." Section 9(2A), inserted at the same time, expressly states that the risk does not need to be more likely than not for it to be "unacceptable." His Honour read this as legislative confirmation that a risk below the 50 percent threshold can still be unacceptable. On a provisional basis, Hulme J interpreted the test as satisfied where there is a risk of serious sexual offending of sufficient degree that community safety cannot be ensured without an order. Both parties accepted that the new formulation is no more stringent than the old one.
Hulme J considered the Act's dual objects: protecting the community (the primary object) and encouraging rehabilitation (a secondary object). While acknowledging the defendant's recent completion of CUBIT, his Honour found that the supporting documentation still clearly established the defendant's chronic offending history, severe anti-social personality disorder, high assessed risk of reoffending, poor compliance history, and high need for ongoing supervision and treatment.
On those findings, Hulme J was satisfied to the required standard that the matters alleged would, if proved, justify an ESO. The court made orders appointing two qualified psychiatrists to examine the defendant and furnish reports ahead of the final hearing. His Honour stressed that the interpretation of the "unacceptable risk" test remained provisional, with further submissions and comparative analysis of Queensland, Western Australian, and Victorian legislation to be provided at the final hearing.
Orders Made
- Two qualified psychiatrists appointed to conduct separate examinations of the defendant and furnish reports to the court, pursuant to s 7(4) of the Crimes (Serious Sex Offenders) Act 2006
Key Takeaways
- The preliminary hearing threshold under s 7(4) of the Act is analogous to a prima facie case standard: the court does not weigh evidence or predict the final result, but assesses whether the matters alleged would, if proved, justify the order sought.
- Section 9(2A) of the Act, inserted by the 2010 amendments, clarifies that a risk of committing a serious sex offence need not exceed 50 percent to be "unacceptable." A risk below the more-likely-than-not threshold can still meet the statutory test.
- Hulme J provisionally interpreted "unacceptable risk" as a risk of sufficient degree that community safety cannot be ensured without an order, framed by the Act's primary object of protecting the community.
- Both the primary object (community protection) and the secondary object (encouraging rehabilitation) are relevant considerations, meaning a defendant's completion of a rehabilitation program is a factor the court takes into account, though not a determinative one at the preliminary stage.
- Because the Act contains no express mechanism to substitute an ESO for a CDO, an application to revoke the CDO under s 19(1) must accompany any application for replacement supervision where detention is already operative.
Legislation and Cases Referenced
Legislation
- Crimes (Serious Sex Offenders) Act 2006 (NSW), ss 3, 4, 5, 6, 7, 9, 17, 19
- Crimes (Serious Sex Offenders) Amendment Act 2010 (NSW)
- Crimes Act 1900 (NSW), s 61J
Cases
- Attorney General (NSW) v Hayter [2007] NSWSC 983
- Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605
- Attorney General (New South Wales) v Tillman [2007] NSWCA 119
- Cornwall v Attorney General for New South Wales [2007] NSWCA 374
- State of New South Wales v Manners [2008] NSWSC 1242
- State of New South Wales v Thomas [2008] NSWSC 1340
- State of New South Wales v Thomas (Final) [2009] NSWSC 1410