State of New South Wales v Davie

Threshold Statutory Considerations

1. At a preliminary hearing the Court has the power to direct the respondent to attend upon a named psychiatrist, psychologist, or both, for the purpose of forensic assessment (ss 15(4) and 7(4) of the Act).
2. In support of the application for such orders to be made, the Crown read and relied upon affidavits of Christopher Butler of 6 April 2016, 20 April 2016, and 3 May 2016.
3. The defendant does not dispute (for present purposes) that the evidence establishes that: 1. As a consequence of his incarceration he is both a "detained sex offender" (s 13B(2)) and a "supervised sex offender" (s 5I(2)), and it is therefore open to the State to make an application to the Court for either a continuing detention order pursuant to s 13A or an extended supervision order pursuant to s 5H of the Act. 2. The State's application has been made within the period of six months prior to the end of the defendant's current sentence as contemplated by ss 13B(3) and 6(2).

The Tests Applicable to the Orders Sought

1. In making orders for forensic assessment the Court must be satisfied that, if the matters alleged in the evidence relied upon by the State were proved, the Court would be justified in making a high risk sex offender continuing detention order or extended supervision order.
2. The interim test has been held to be akin to the test applied by a magistrate in determining whether there is prima facie a case to answer at committal proceedings: Attorney General for the State of NSW v Hayter [2007] NSWSC 983, at [6]; New South Wales v Manners [2008] NSWSC 1242, at [8]; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118, at [11].
3. Satisfaction to a "high degree of probability" has been held to be a standard of proof higher than the civil standard but lower than the criminal standard: Attorney General for the State of NSW v Tillman [2007] NSWSC 605 at [27]; Attorney General for the State of NSW v Tillman [2007] NSWCA 119 at [5] and [18].
4. The Act provides no definition of what is meant by "an unacceptable risk" but, having regard to the object of the Act (s.3), the language used in s.5B(2), and the ordinary meaning of the words, the legislature must have intended the statutory test to be satisfied where the evidence establishes that there is a risk that the defendant will commit a serious sex offence which is sufficiently high that the making of an order is necessary to protect the community and ensure its safety: State of New South Wales v Thomas (Preliminary); State of New South Wales v Thomas (Final) [2011] NSWSC 307, both being decisions of R A Hulme J; as applied in State of New South Wales v Graeme Allan Reed (Preliminary) [2011] NSWSC 625; and Attorney General for New South Wales v McGuire [2015] NSWSC 152. The question is whether the safety and protection of the community cannot be ensured unless an order is made.
5. The test tentatively applied by R A Hulme J in State of New South Wales v Thomas (Preliminary) at [22], and subsequently applied in later decisions of this Court, is consistent with that applied in Western Australia in relation to comparable legislation: Director of Public Prosecutions (WA) v Williams (2007) 176 A Crim R 110 (at [63]), and Director of Public Prosecutions (WA) v GTR (2008) 198 A Crim R 149 (at [27]).
6. In the former, Wheeler JA, with the agreement of Le Miere AJA, said (at [63]): "In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention."
7. See also State of New South Wales v Richardson (No. 2) [2011] NSWSC 276, State of New South Wales v Cruse [2013] NSWSC 1733, and State of NSW v Fisk [2013] NSWSC 364, where the approach taken in Western Australia was considered with approval.
8. In considering whether an individual is a high risk sex offender the Court must have regard to those matters referred to in s 9(3) and s 17(4), together with any other matters it considers relevant.

Determination

1. The supporting documentary material does not greatly differ from that which was before Button J when considering the State's earlier application for a continuing detention order, little having changed since that time.
2. After the continuing detention order was imposed upon the defendant, he was again referred to the CUBIT program but, the defendant having indicated that he planned to appeal against the decision to further detain him, he refused to participate in that program.
3. It seems that, with his appeal to the Court of Appeal pending, and having regard to his denial of the index offences, or a need for treatment, little or nothing was done by the defendant to address the behaviour which the Court had previously concluded made him a high risk offender such that his continuing detention was necessary for the protection of the community.
4. With his appeal pending, and with the State in the process of assessing whether to make a further detention application, the defendant agreed to see Dr Richard Parker, Senior Psychologist with the Serious Offenders Assessment Unit, for the purpose of risk assessment and education (Ex. CB1:17).
5. From 9 October 2015 the defendant attended educative sessions with Dr Parker roughly fortnightly, although only after the doctor had assured the defendant that he would not challenge his denial of the index offences, or seek to change his mind about participation in the CUBIT program.
6. The aim of the sessions with Dr Parker was to "discuss thinking related to his offending and learn how to substitute this with alternative thinking" to lead him away from offending conduct (Ex. CB1:17, at [9]). The defendant has indicated a willingness to engage in individual counselling sessions.
7. Dr Parker considers that the defendant has made some progress, although it is below a level required for "competence" (Ex. CB1:17, at [11]). The defendant's focus remains on the avoidance of punishment. Dr Parker's conclusion is that the risk assessment previously made of the defendant (prior to the 2015 orders) remains accurate.
8. The prospect of accepting anti-libidinal medication has been raised with the defendant. Initially his position was to utterly reject the use of medication directed to addressing a problem the defendant refuses to acknowledge exists but, with the prospect of a renewed detention order, it appears the position of the applicant has softened. It continues, however, to fall far short of acceptance of either the need for, or the reality of, the use of such medication (Ex. CB1:19).
9. Were the defendant to be released at the expiration of the current detention order, with an extended supervision order in place, he has been conditionally approved for placement at Nunyara COSP (Ex. CB1:42). The conditions that would be imposed upon him include electronic monitoring.
10. Having considered the documentary evidence tendered by the State, and proceeding on the basis that what is advanced in the evidence can be proved, I am satisfied that the respondent is a high risk sex offender, and that it is appropriate to make the orders sought by the State pursuant to s 15(4) of the Act for his assessment by two forensic psychiatrists, and directing him to attend upon the appointed psychiatrists.

Orders

1. The orders made by the Court on 4 May 2016 are as follows: 1. An order pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): 1. Appointing Dr Andrew Ellis, psychiatrist and Dr Jeremy O'Dea, psychiatrist, to conduct separate examinations of the defendant and to furnish reports to the Court on the results of those examinations by 22 June 2016; 2. Directing the defendant to attend those examinations. 1. The plaintiff is to file and serve any affidavits and submissions upon which it will rely at the final hearing by 29 June 2016. 2. The defendant is to file and serve any affidavits and submissions upon which he will rely at the final hearing by 4 July 2016. 3. The plaintiff is to file and serve any submissions in reply by 6 July 2016. 4. The matter is listed on 7 July 2016 for final hearing. 5. Liberty to apply on two days' notice. 6. An order that access to the court file be restricted to the parties, unless by leave granted by a Judge of this Court following notification to parties.

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: 30 May 2016