Citation: State of New South Wales v Thomas (Final) [2011] NSWSC 307
Court: Supreme Court of New South Wales
Date: 12 April 2011
Judge(s): R A Hulme J
Background
The defendant had an extensive history of serious sexual offending spanning 28 years, with convictions in 1968, 1969, 1978, 1981, 1985, and 1996. His offences were at the upper end of seriousness, involving threats and actual violence. A prior extended supervision order made in 2008 had been breached on multiple occasions, leading to a return to custody and subsequently a continuing detention order for 18 months, due to expire on 16 June 2011.
While serving the continuing detention order, the defendant completed the Custodial-Based Intensive Treatment (CUBIT) program for high-risk sex offenders. This completion was the primary development prompting the State to apply for an extended supervision order rather than pursue further detention.
The State applied for a five-year extended supervision order under Part 2 of the Crimes (Serious Sex Offenders) Act 2006, together with revocation of the existing continuing detention order. Two eminent forensic psychiatrists, appointed by the Court, provided reports in advance of the final hearing.
Legal Issues
- Whether the statutory threshold criteria under s 6 of the Crimes (Serious Sex Offenders) Act 2006 were satisfied for the making of an extended supervision order.
- Whether, having regard to all mandatory considerations under s 9(3), there was a high degree of probability that the defendant posed an unacceptable risk of committing a serious sex offence if not kept under supervision.
- How the "unacceptable risk" formulation, introduced by the 2010 amendments, should be construed and applied.
- Whether completion of the CUBIT program sufficiently reduced the defendant's risk of sexual recidivism to preclude the making of an extended supervision order.
Decision
Hulme J was satisfied, on a high degree of probability, that the defendant posed an unacceptable risk of committing a serious sex offence if not kept under supervision. The court considered the defendant's extensive and serious criminal history, his repeated reoffending while on parole or subject to supervision conditions, and his prior failures to engage meaningfully with rehabilitation programs. The sentencing judge in 1996 had specifically noted the defendant's capacity for manipulation and doubted the prospects of genuine rehabilitation.
While the defendant's completion of the CUBIT program was acknowledged as a positive development, the expert evidence consistently recommended community-based maintenance treatment upon release. Both the CUBIT psychologist and the Serious Sex Offender Review Group emphasised the defendant's continued high risk of sexual recidivism. The psychiatric reports from Dr O'Dea and Professor Greenberg supported this assessment. The court found that the defendant's age and ill-health did not eliminate the risk to the community.
On the "unacceptable risk" test introduced by the Crimes (Serious Sex Offenders) Amendment Act 2010, Hulme J declined to undertake a detailed comparative analysis of equivalent provisions in other jurisdictions. Applying the words of the provision in their ordinary sense, in light of the Act's objects of community safety and protection, the court was satisfied on any view that the test was met. The existing continuing detention order was to be revoked, and a five-year extended supervision order was substituted.
Orders Made
• 5 year extended supervision order
Key Takeaways
- A high degree of probability that an offender poses an unacceptable risk satisfies the threshold in s 9(2) of the Crimes (Serious Sex Offenders) Act 2006, representing a standard above the civil balance of probabilities but below the criminal standard of proof.
- Completion of a custodial treatment program such as CUBIT does not, of itself, displace the statutory criteria for an extended supervision order where expert evidence continues to support a high risk of sexual recidivism.
- The "unacceptable risk" formulation introduced by the 2010 amendments was given its ordinary meaning in context: a risk present to a degree sufficient that community safety cannot be ensured without an order. The Supreme Court expressly declined to resolve its precise construction in a case where the test was plainly met on the facts.
- Factors including age and ill-health were considered under s 9(3) but did not override the court's assessment of risk in circumstances involving a sustained history of serious sexual offending and repeated non-compliance with supervision conditions.
- Under s 9(3), a defendant's history of reoffending while on parole, breach of prior supervision orders, and limited acceptance of responsibility in earlier treatment programs are all relevant considerations the court must weigh when determining whether to make an extended supervision order.
Legislation and Cases Referenced
Legislation:
- Crimes (Serious Sex Offenders) Act 2006 (NSW), ss 6, 7, 9
- Crimes (Serious Sex Offenders) Amendment Act 2010 (NSW)
- Crimes Act 1900 (NSW), s 61J
Cases:
- Attorney General for the State of NSW v Hayter [2007] NSWSC 983
- Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605
- 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 (Interim) [2009] NSWSC 1119
- State of New South Wales v Thomas (Final) [2009] NSWSC 1410
- State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118