Solicitors:
Crown Solicitor's Office (State)
Legal Aid New South Wales (Defendant)
File Number(s): 2015/84503
[2]
Judgment
Introduction
By summons of 20 March 2015, the State of New South Wales (the State) seeks final orders against Jeffrey Wayne Davie (the defendant) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The submission of the State was that, pursuant to s 17(1)(b) of the Act, I should impose a continuing detention order (CDO) of 18 months. It was also submitted that I should impose, pursuant to s 9(1)(a) of the Act, an extended supervision order (ESO) of five years to commence upon the expiry of that CDO.
That submission was made by the State on the basis that all of the background statutory preconditions for making an order against the defendant had been made out; that the central test contained in s 5B of the Act had also been made out; that I would not exercise any discretion (pursuant to ss 5C(1) or 17(1)(c) of the Act) to decline to make either order; and finally that the test in s 5D(1) of the Act with regard to the inadequacy of an ESO had also been made out, thereby calling for the imposition of a CDO as opposed to an ESO.
The defendant has adopted a number of positions in response.
First, he did not dispute that the surrounding statutory preconditions for the making of an order have been established: the defendant was convicted of a serious sex offence in 2005 (s 5(1)(a)(i) of the Act); he is a sex offender as defined as a result (s 4 of the Act); and he was a detained sex offender as defined when the application for the CDO was first made (s 13B(2)(a)(i) of the Act).
Secondly, neither a CDO nor an ESO should be imposed, and the defendant should leave prison without fetter when an interim detention order (IDO) to which he is currently subject expires on 18 July 2015.
Thirdly, if I were against him with regard to that, only an ESO should be imposed, and it should be for no longer than three years.
Fourthly, if I were against him with regard to that, a CDO of only 12 months should be imposed, to be followed by an ESO of only three years.
I made preliminary orders in this matter on 14 April 2015, and delivered a judgment explaining why I did so on the same date: State of New South Wales v Davie [2015] NSWSC 413. At the final hearing, neither counsel submitted that there was any error of fact or law in my first judgment. Each counsel was also content with that first judgment being regarded as incorporated within this final judgment, in the interest of avoiding fruitless repetition. Each counsel was also content with all of the exhibits that had been received by me at the preliminary hearing being regarded as evidence in the final hearing, in the interests of avoiding a laborious re-tendering of many documents. I adopt those two courses.
For convenience, I repeat here the concluding paragraph of my preliminary judgment:
[38] My final analysis may be summarised as follows. In short, since November 1984, over 30 years ago, the defendant has committed very serious sexual offences against children. Those offences have been both premeditated and opportunistic. He has been undeterred by stern sentences so far. He has not been successfully treated; to the contrary, there is a real question whether he even accepts the immense wrongfulness of what he has done. In the unusual circumstances of this case, I consider that nothing less than an IDO is appropriate.
New evidence at final hearing
It is convenient now to summarise the material that was placed before me at the final hearing, and that had not been before me at the preliminary hearing. No person who had deposed to an affidavit or provided an expert report that was part of the case of the State was required for cross-examination by counsel for the defendant. The defendant called no evidence.
Affidavit of Paul Yeomans of 17 June 2015
Mr Yeomans, who holds the position of Senior Electronic Monitoring Officer of the External and Electronic Monitoring Group within the Department of Justice, provided an updated picture of the electronic monitoring that could be provided for the defendant if he were released subject to an ESO. The affidavit explains that the electronic components of such monitoring have become more advanced and convenient over the years. They do not, of course, permit of immediate intervention in the event of deviation by a monitored person.
Affidavit of Allison Roberts of 18 June 2015
To similar effect was the affidavit of Ms Roberts, a unit leader of the extended supervision orders team within the Department of Justice.
Her affidavit noted that the defendant had been assessed by others as being at a high risk of reoffending sexually, after a Static-99 test had been administered to him.
It also confirmed the fact that, on 19 August 2013, the defendant had been assessed as being within the highest tier of risk with regard to a community impact assessment.
The affidavit also made clear that, whatever the level of electronic or other monitoring, the risk of the defendant responding spontaneously to his sexual desires cannot be entirely mitigated by community corrections. It was also said that, speaking more generally, electronic monitoring is not, of course, of itself able to stop an offender who is determined to reoffend from doing so. It was noted by Ms Roberts that, in the past, the defendant has been able to commit extremely serious sex offences against children within a matter of minutes.
Finally, it was said that the original proposal of the defendant, if he were to be released subject to an ESO, was that he would live with his mother. Such an arrangement was deemed to be inappropriate, because of the firm refusal of his mother to accept the guilt of the defendant of the offences of which he was convicted in 2005, a position that the defendant maintains as well.
Instead, the current proposal is that the defendant would live at Nunyara Community Offender Services Program (COSP) at Long Bay Gaol. The affidavit shows that that place of residence would provide a highly structured environment in which the defendant could slowly readjust to living in the community again after more than ten years of continous incarceration. Nevertheless, as I said in my preliminary judgment, living at the COSP would by no means provide constant supervision of the applicant, especially during daylight hours.
Affidavit of Meagan Donaldson of 18 June 2015
Ms Donaldson, a psychologist with Corrective Services New South Wales, recounted in her recent affidavit the results of the administration of tests of risk assessment to the defendant, the details of which were before me at the preliminary hearing. Entirely as one would expect as a layperson, in light of the evidence that I recounted in my preliminary judgment, the Static-99 test, the Stable-2007 test, and the Risk of Sexual Violence Protocol (RSVP) unanimously assess the risk of the defendant reoffending by committing a sexual offence as being high.
The affidavit of Ms Donaldson also explains that there is a form of Custody-based Intensive Treatment (CUBIT) available to persons in the community. It is known as CUBIT Outreach. It is only available, however, to persons whose risk of reoffending has been assessed as being either low or medium. As a result of his risk assessment, CUBIT Outreach would not be available to the defendant if he were living in the community and subject to an ESO.
For the same reason (that is, his level of assessed risk of reoffending sexually), the defendant would not be suitable for community-based treatment provided by the Forensic Psychology Services (FPS) in Surry Hills.
He would be suitable for individual counselling sessions provided by the FPS. However, they are not therapeutic, in the sense of seeking to reduce risk over the long term by addressing criminogenic factors. Rather, they are directed towards helping persons such as the defendant to refrain from reoffending in high risk situations. In other words, they are very much a short term, ad hoc measure.
Third Affidavit of Jonathan Vasiliou of 18 June 2015
The third affidavit of Mr Vasiliou annexes Operational Integrity Management electronic records system (OIMS) notes from Corrective Services with regard to to the defendant for the period of 20 October 2014 to 17 June 2015 inclusive. I was not taken to them by either counsel, and shall not detail them.
Report of Dr O'Dea of 27 May 2015
In response to one of my orders of 14 April 2015, Dr O'Dea, forensic psychiatrist, provided a detailed report about the defendant. It extended well beyond matters that had been before me at the preliminary hearing.
The report included details of the very first sexual offence that the defendant committed against a child. That was as long ago as December 1984, when the defendant was aged only 16 years. Dr O'Dea reviewed documents that show that the defendant went so far as to handcuff a 6½ year-old schoolboy to a metal fence, pull his pants down, and perform oral sex upon him. At that time the father of the victim was in the vicinity and searching for his son, whom the defendant had lured away. Dr O'Dea noted that, according to a psychiatric report dated 6 December 1984, the defendant appeared "to have put some responsibility on the boy's father for not objecting to his son playing with [the defendant]."
Dr O'Dea explored the facts of the multiplicity of sexual offences that the defendant committed against young boys that led to his sentencing by his Honour Judge Freeman in August 1992.
The psychiatrist also placed emphasis on documents detailing the discharge of the defendant from the CUBIT program in September 1999 (that is, almost 15 years after the defendant first committed a serious sex offence against the young boy in late 1984, and when the defendant was aged 30 years). In those documents it was said of the defendant that "he himself was unsure whether abuse was wrong and harmful, and [that] he was not ready to 'give up' abuse related thoughts and behaviours."
Dr O'Dea discussed with the defendant the offences of 25 May 2005, whereby the defendant lured a young boy into the men's toilets at a social function at which the mother of the victim was also present, and thereafter committed serious sex offences against the victim. The position of the defendant was that the DNA found on the underwear of the 9 year old victim, and which provided virtually overwhelming evidence of the guilt of the defendant, had been planted there. He also asserted that his defence barrister had "teamed up" with the prosecutor in order to have him convicted.
The psychiatrist noted more generally that, in their discussions, the defendant "readily acknowledged…a long term, specific and strong sexual attraction to male children".
The defendant told Dr O'Dea that he had had sexual relationships with other prisoners in custody, but not for some time. That was said to be because of a reduction in his libido, amongst other reasons. The general position of the defendant expressed to the psychiatrist was that, for that and other reasons, he would be quite capable of refraining from committing further sexual offences against young boys if he were released into the community.
On the topic of anti-libidinal medication, the defendant indicated that he would not consent to take it, and remarked "I don't believe in them" and "I know I can do it without these interventions". The defendant expressed a readiness to engage in individual psychological therapy in the community, although he also remarked at one stage "I probably wouldn't engage in psychological treatments".
The conclusions of Dr O'Dea may be summarised as follows.
First, the defendant does not suffer from a major psychiatric illness.
Secondly, the condition from which the defendant suffers satisfies the psychiatric diagnostic classification of homosexual paedophilia.
Thirdly, based upon his past behaviour, and his "identified specific, strong and at least predominant sexual attraction to male children", it is reasonable to assume that there is a significant risk of the defendant committing a further serious sex offence as defined in s 5(1) of the Act.
Fourthly, sexual attraction to male children such as that experienced by the defendant usually persists long term, and the risk of a person with that attribute offending sexually is unlikely to be reduced without specific and ongoing psychiatric treatment.
Fifthly, psychological sex offender treatment alone, whether in custody or in the community, is unlikely to have a significant impact upon the risk of reoffending of the defendant.
Sixthly, the use of anti-libidinal medication is the most appropriate and effective intervention directed towards reducing the risk of serious reoffending by the defendant. There should also be a focus on the development of adult relationships, including adult sexual relationships.
Seventhly, with regard to the physiological question of the appropriate degree of libidinal reduction, if it is a matter of balancing reduction in libido on the one hand with the ability to engage in an adult sexual relationship on the other, the former should take priority over the latter.
Eighthly, because of the fact that the defendant has, in the past, been able to commit serious sex offences against children in public places who were strangers to him and who were being supervised by their parents at the time, there should be a regime of anti-libidinal medication combined with a structured and supervised community management program if the defendant is to be released.
Ninthly, unless there were in place a combination of both medication and structured management, the risk of the defendant committing further serious sex offences would not be adequately and appropriately managed in the community.
Tenthly, Dr O'Dea accepted the well-known drawbacks of seeking to extrapolate the risk of a particular person reoffending in the future from static tests based upon the past, and from tests that make general assessments of populations rather than individuals. Nevertheless, he considered that the risk of the defendant engaging in further sexual offending in the long term would be considered "significantly high". As well as that, it seemed reasonable to the forensic psychiatrist to consider that there would be a "significantly high degree of probability" that the defendant would be likely to commit a further serious sex offence if the measures that were discussed in his conclusions were not implemented.
In short, Dr O'Dea was of the opinion that, if released to the community, the defendant should be consulting a suitably qualified and experienced forensic psychiatrist, and that a central component of his psychiatric treatment and risk management would need to be anti-libidinal medication.
Report of Dr Ellis of 20 May 2015
Dr Ellis, forensic psychiatrist, also provided me with a report in accordance with my order of 14 April 2015. It included an analysis of the efficacy of psychological interventions with regard to adults who have sexually offended or are at risk of offending. It may be summarised as follows (I shall not repeat matters of background that I have already recounted in my summary of the report of Dr O'Dea or elsewhere).
The defendant told Dr Ellis that, despite his early departure from CUBIT in 1999, he had gained a number of insights from that program. They included an appreciation that "young boys were persons and not sexual objects"; "that young boys do not have full understanding and cannot consent, so his behaviour was wrong"; and that, if he were to experience a sexual thought about a young boy in the future, he would simply "shake his head and replace this with an appropriate thought". I interpolate to note that the departure of the defendant from the CUBIT program was, of course, many years before his commission of further serious sex offences in 2005.
The defendant denied to Dr Ellis that he had experienced physical or sexual abuse from adults during his childhood. That is in stark contrast to other histories that the defendant has given, and that I summarised at [1] of my preliminary judgment.
The defendant frankly informed the psychiatrist that he has been "aware of a sexual attraction to prepubescent boys from his teenage years". The defendant went on to describe a number of physical attributes of young boys that he finds attractive, including aspects of their genitals.
It is noteworthy that, according to the written report of the psychiatrist, the defendant spoke of his attraction to young boys in the present tense, rather than as something that had existed only in the past. It is also noteworthy that, although the defendant claimed that he is now sexually attracted to adult men and women to some degree, he admitted that he had experienced a "fantasy of sex with young boys" as recently as shortly before his interview with Dr Ellis on 10 May 2015.
The defendant expressed his readiness to engage in individual counselling in the community, but expressed the firm position that he will not engage in any therapy in custody if further detained.
The psychiatrist expressed the opinion that the exculpatory explanation of the defendant for the offences of 2005 "most likely indicates extreme psychological denial."
I proceed to summarise the conclusions of Dr Ellis.
First, he diagnosed the defendant with paedophilia. That condition was said to be chronic and relapsing.
Secondly, Dr Ellis noted all of the well-known drawbacks in applying actuarial risk assessments to individuals. He also noted some specific difficulties with Static-99, including alterations in crime rates and a lack of up-to-date data, each of which, in his opinion, calls into question its reliability.
Thirdly, the psychiatrist stated that "[d]eviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffence".
Fourthly, in conformity with Dr O'Dea, Dr Ellis placed emphasis on anti-libidinal medication as being the best treatment to address deviant arousal on the part of the defendant.
Fifthly, he expressed the opinion that persons who have been removed from therapeutic programs whilst in custody generally demonstrate higher rates of recidivism; because of his discharge from the CUBIT program many years ago, that concern applies to the defendant.
Sixthly, Dr Ellis expressed the opinion that, if the defendant were released into the community without treatment or supervision, he "would fall into a group of persons with a risk for serious sexual offending that is statistically high in frequency and of a type with serious consequence".
Seventhly, the psychiatrist emphasised that the question of medication is one for the informed consent of a patient. He recorded that the defendant told him that he would "consider medication" as an option, but only after a full medical evaluation.
Eighthly, Dr Ellis expressed the opinion that therapy in custody is not overly successful in reducing recidivism. He also expressed the opinion that "the evidence for psychological treatment in community settings is more promising than for custody".
Dr Ellis stated that the defendant should be referred for consideration for anti-libidinal medication. He also expressed the view that an ESO for five years would be "considered reasonable".
The forensic psychiatrist concluded by saying that conditions such as the one from which the defendant suffers "are chronic, relapsing conditions and resistant to treatment and rehabilitative efforts", and that his condition is "severe".
Submissions of the State
The submissions of the State, founded upon all of the evidence placed before me at both hearings, may be summarised as follows.
The defendant suffers from a chronic and very long-standing sexual attraction to male children. He has been frank enough to admit that he still experiences sexual attraction to young boys even today.
He has received no effective treatment for that condition, whether in custody or in the community.
As a result of that attraction, he has committed serious sex offences against young boys over a period of 30 years. Some offences involved inveigling himself into the trust of families of victims or of the victims themselves. Other offences have shown that the defendant is adept at committing extremely serious offences against children who were strangers to him in public places. And he has been able to do so quickly, and even when the children were under the supervision of their own parents.
The defendant will not undertake therapy in custody. He has not expressed a contentment to take anti-libidinal medication; in any event, even if he were to express a readiness to do so, on all of the evidence one would not trust him to abide by it.
In the past (admittedly many years ago) the defendant has expressed the opinion that there is nothing wrong with his behaviour. The defendant has never admitted to the commission of the offences in 2005. Those facts, combined with his refusal to accept effective treatment, could lead one seriously to suspect that, far from being remorseful for the damage he has inflicted, or ashamed of what he has done, the defendant has no insight into his criminality.
The psychiatric and other expert opinions are unanimous: there is, at the least, a high risk that, if released, the defendant will commit a serious sex offence against another young boy or boys, just as he has done to many young boys over three decades.
In short, on all of the evidence, I would be amply satisfied that the test contained in s 5B(2) of the Act has been made out; namely, I would be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.
The State submitted that, if I were so satisfied, on the facts of this case there could be no question of me exercising any discretion to make neither a CDO nor an ESO.
As for the question contained in s 5D(1) of the Act, namely whether I would be satisfied that adequate supervision would not be provided by an ESO, and would therefore proceed to make a CDO, the State submitted that I would be soundly satisfied, as things currently stand, that that is certainly the case.
Counsel for the State concluded by submitting that, in the circumstances, the defendant should be detained in custody pursuant to a CDO for 18 months, to be followed by a period of conditional liberty pursuant to an ESO of five years. The former period was justified on the basis that the defendant, if detained, may decide to engage in therapy, and a CDO of only one year could be disruptive to any such program. The latter period was justified on the basis that, if he is to be released, the defendant should be subject to an ESO of the maximum duration available under the Act.
In contending for those periods, the State reserved the right to apply in the future to extend either or both of the CDO and the ESO (pursuant to ss 19(1) and 13(1) of the Act), or to seek a fresh order upon the expiry of either or both orders (pursuant to ss 18(3) and 10(3) of the Act).
Submissions of the defendant
Although, as I have stated, the position of the defendant personally is that no fetter should be placed on his liberty from now on, his counsel did not seek to persuade me that the test in s 5B of the Act had not been made out. In other words, she did not seek to persuade me that I would not be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.
Nor did she seek to persuade me that, pursuant to ss 17(1) and 5C(1) of the Act, I should exercise any discretion to decline to make one order or the other.
Counsel pointed to six factors arising from the evidence that formed the basis of her submission that I would impose an ESO, and not a CDO, in accordance with s 5D(1) of the Act. The factors that she relied upon were as follows.
First, when he was on parole between 4 April 2003 and 25 May 2005, the defendant succeeded in complying with his parole order. In particular, he was able to refrain from the commission of sexual offences against children for well over two years whilst living in the community.
Secondly, although the characterisation in my first judgment of his treatment in custody as "very incomplete" was not disputed, nevertheless the defendant has engaged in some treatment in custody directed towards his rehabilitation.
Thirdly, an ESO would be far more onerous and structured than a period of parole, including the period of parole to which I have referred above.
Fourthly, it is true that the defendant has shown himself in the past to be adept at opportunistic offending against children. And it is also true that that must be regarded as a concern. But too much emphasis should not be placed on that factor: in fact, many paedophiles show a similar facility. In other words, counsel for the defendant submitted that there is nothing especially concerning about the ability of the defendant to take advantage of situations in order to offend very rapidly, and that factor would not tip the balance from the imposition of an ESO to the imposition of a CDO.
Fifthly, the defendant has been open and truthful with psychiatrists about his feelings, including his sexual feelings for young boys. It would have been easy for him to lie about that, thereby misleading the Court and very probably placing the community in serious danger. The fact that he has been honest with medical professionals, in circumstances in which he must have known that to do so could be adverse to his interests in general and his liberty in particular, shows a commendable frankness. Combined with his readiness to undertake individual therapy in the community, and the fact that he is open to considering the possibility of taking anti-libidinal medication, that frankness gives one cause for cautious optimism.
Sixthly, the defendant has a longstanding history of employment whilst incarcerated. He has also been generally well behaved in that setting. Those facts demonstrate that the defendant can comply with rules and directions, and work with others. And that in turn would give one confidence with regard to compliance with an ESO, and his ability to live successfully in the setting of a COSP.
In short, counsel for the defendant submitted that there were many bases upon which I would be satisfied that an ESO would provide adequate supervision, and that a CDO is not called for.
She also submitted that it would be unduly onerous for an ESO to extend beyond three years. She went on to set out a number of points of dispute with regard to the proposed conditions of the ESO.
If I were against her with regard to the foregoing, counsel for the defendant submitted that there was no valid basis upon which a CDO should extend beyond twelve months.
Determination
Unacceptable risk?
I shall first discuss briefly the factors that I am required by the statute to take into account, and shall do so in the order in which they appear in the section.
Section 17(4) of the Act is relevantly as follows:
(4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:
(a) the safety of the community,
(b) the reports received from the persons appointed under section 15 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination,
(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment,
(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence,
(d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,
(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs,
(f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an interim supervision order or an extended supervision order,
(g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 ,
(h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,
(h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,
(i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender continuing detention order) or serious violence offences (in the case of an application for a high risk violent offender continuing detention order),
…
As things stand, consideration of the safety of the community powerfully argues in favour of an order being made: s 17(4)(a).
As for the two reports received pursuant to my earlier order, it is to the credit of the defendant that he cooperated fully and frankly with the two forensic psychiatrists. Having said that, each psychiatrist expresses the firm opinion that the defendant is suffering from a chronic and persistent condition that creates, at the least, a high risk of him committing a serious sex offence upon his release: s 17(4)(b).
With regard to the report of Ms Donaldson, again it can be said that the defendant seems to have been cooperative and open with her. But her opinion is very adverse to him, and wholly consistent with the opinion of the two psychiatrists: s 17(4)(c).
As for statistical analysis of risk, and bearing in mind all of their limitations, the tests administered by Ms Donaldson strongly suggest a high risk of serious sexual reoffending: s 17(4)(d).
Speaking more generally for a moment, all of those expert opinions are thoroughly consistent with the view to which one inevitably comes on the evidence as a whole: the risk of this untreated paedophile committing a serious sex offence against a child in the future, especially if not medicated to reduce his libido, is very high.
It is true that, if the defendant were subject to an ESO, living in the structured environment of a COSP, subject to electronic monitoring, and subject to very many other restrictions on his liberty, he would be closely managed in the community: s 17(4)(d1).
But I maintain the view, expressed in my preliminary judgment, that there is a very significant risk that, even if subject to a stringent ESO, the defendant could commit serious sex offences against a child within a matter of minutes. He has done exactly that at least twice in the past; the second occasion was a matter of days before he was last at liberty. And the commission of such offences may require only a deviation of a matter of metres from an approved path: for example, in order to lure a child into public toilets at a railway station. Such a deviation may not even be able to be detected electronically, let alone prevented.
In the unusual circumstances of this case, I do not consider that the defendant can be reasonably and practically managed in the community at this stage.
I maintain the position that the therapy that the defendant has received with regard to his chronic condition is, at the most, very incomplete: s 17(4)(e).
It is true, and in favour of the defendant, that in the past he has succeeded on parole: s 17(4)(f).
Whilst on parole, the defendant was subject to the Child Protection (Offenders Registration) Act 2000 (NSW). A charge against the defendant of failing to comply with a reporting obligation was dismissed. The State placed no other evidence of breach before me: s 17(4)(g).
The criminal history of the defendant is very adverse. It shows a pattern of repeated serious sexual offending against young boys. Whilst there is some force in the submission of counsel for the defendant that many paedophiles offend opportunistically, the ability of the defendant to do so against random children who are strangers to him in public places even whilst they are being supervised by their parents, an ability that first manifested itself over 30 years ago, must be a matter of serious concern: s 17(4)(h).
The remarks on sentence of his Honour Judge Freeman in 1992 and his Honour Judge Coolahan in 2006 speak of the undoubted seriousness of the offences committed by the defendant, and the undoubted damage that they have caused. They do not directly speak against his release now, especially in light of the passage of time since the commission of those offences: s 17(4)(h1).
As for other information, I have summarised it in my two judgments. It includes such matters as the attitude of the defendant to his offending in 2005. Overall, it militates in favour of the making of an order: s 17(4)(i).
In summary, consideration of the factors that I am required by s 17(4) of the Act to take into account in determining whether the central test has been made out shows that there are one or two factors that argue against me coming to the necessary state of satisfaction. The vast majority of them, however, support the proposition that the State has fulfilled the central test.
Speaking more generally about the test that I am called upon by statute to consider, I maintain the summary of the evidence that I provided in my preliminary judgment and that is repeated at [9] above. Indeed, the evidence is now more adverse to the defendant than it was at the time of the preliminary hearing. That is so for the following reasons.
First, two highly qualified forensic psychiatrists have spoken of a risk of serious sexual reoffending that is, at the least, high.
Secondly, the defendant has been frank enough to admit that he still engages in sexual fantasies about young boys.
Thirdly, the defendant has expressed his intransigence with regard to therapy in custody.
Fourthly, it is now clear that no appropriate psychological or psychiatric therapy is available to the defendant in the community.
Fifthly and finally, the defendant has expressed no real willingness to be subject to a regime of anti-libidinal medication, a regime that each psychiatrist regards as virtually essential to him abstaining from reoffending.
I answer the question of whether I am satisfied that the State has established the test contained in s 5B(2) of the Act firmly in the affirmative.
In the circumstances of this case, there is no question of me exercising any discretion to decline to make a CDO or an ESO. I shall not tarry to repeat the evidence that leads me to that view: it is the same evidence that persuades me that the central test is made out.
ESO or CDO?
Turning to the real dispute between the parties requiring resolution by me, pursuant to s 5D(1) of the Act I am well satisfied that an ESO would not provide adequate supervision of the defendant. That is so for the following reasons.
First, whilst it is true that the defendant succeeded on parole, it will be recalled from my preliminary judgment that he was under the virtually continuous personal supervision of his mother during that period. It will also be recalled that he re-offended very seriously a matter of months after the expiration of his parole period.
Secondly, I do not consider that even the very rigorous regime of conditional liberty that is proposed by the State will adequately protect the community from the defendant taking the opportunity to reoffend against young boys. As I have emphasised, in the past the defendant has been able to commit serious sex offences against children even when their parents are present. I do not believe that an ESO in its current form, even accepting the rigour of its conditions and the intention of the authorities to enforce those conditions rigorously, can sufficiently protect the community against the defendant offending in such a way again.
All tests for the making of the CDO having been satisfied, I propose to make the more restrictive order.
Length of CDO?
As for the length of the CDO, I accept the submission of counsel for the defendant that it should be for no more than 12 months. That is because, contrary to the submission of counsel for the State, I do not consider that it should extend to 18 months, on the off-chance that the defendant will engage in therapy that could be disrupted by a CDO ending in the middle of it. That is so for three reasons.
First, I consider that it is very unlikely that the defendant will engage in such therapy in custody; after all, he has very recently expressed his firm refusal to do so.
Secondly, I do not consider that the deprivation of the liberty of a citizen by incarceration should be extended to accommodate mere possibilities.
Thirdly, I do not consider that the deprivation of the liberty of a citizen should be extended to accommodate logistical matters.
It follows that I shall impose a CDO of 12 months, in accordance with the ancillary submission of counsel for the defendant.
Should a subsequent ESO be made?
As for any ESO to commence upon the expiry of that CDO, I decline to make any such order. That is not because I am of the view that at the end of 12 months the applicant should be released without fetter on his liberty; quite the contrary. Rather, it is because, as things currently stand, I regret to say that I have no satisfaction that the applicant should be released to conditional liberty. That is because I believe that it is very likely that, if released, he will commit a serious sex offence against a young boy. In those circumstances, I am not prepared to order his release to an ESO on the evidence before me, whether that release be now or in 12 months' time.
I repeat: my approach to the question of his release that has led me to refuse to impose an ESO subsequent to the CDO is not the slightest endorsement of the position of the defendant. Quite the opposite: it is because I do not consider that, on the evidence before me at this stage, I should order his release into the community, whether that be 12 months from now, 18 months from now, or at any other time. If that determination presents logistical difficulties to either or both of the parties, that is regrettable; but, to my mind, it is an unavoidable consequence of the evidence placed before me.
Finally, because of my approach to the question of the imposition of an ESO, I do not need to resolve the various disputes between the parties about the appropriate conditions of any such order.
Orders
I make the following orders:
(1) Pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is subject to a continuing detention order for a period of 12 months to date from 16 July 2015 and expire on 15 July 2016.
(2) Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006, the Court is to issue, as soon as practicable, a warrant of committal of the defendant to a correctional centre for the duration of the continuing detention order referred to in Order 1 above.
[FURTHER SUBMISSIONS MADE]
At the time of the delivery of my judgment earlier today, I overlooked the fact that order 2 in the summons remains extant. Time was taken by the parties to consider the precise terms of that order. The solicitor for the State helpfully provided me with a draft order. Counsel for the defendant expressed her contentment with it. I propose to make it.
(3) That any report prepared for the purposes of Order 1 of the orders made on 14 April 2015 is permitted to be provided to Corrective Services New South Wales.
(4) The summons dated 20 March 2015 is otherwise dismissed.
[3]
Amendments
17 July 2015 - paragraph 123 - corrected paragraph numbering
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Decision last updated: 17 July 2015