State of New South Wales v Davis

CATCHWORDS : Interim detention of serious sex offender.

Crimes (Serious Sex Offenders) Act 2006 s 3(1), s 5(1), s 15(4), s 16(1), s 16(1)(a), s 16(1)(b), s 17(2), s 17(3), s 17(4), LEGISLATION CITED : Crimes Act 1900 s 61J, Mental Health (Criminal Procedure) Act 1990 Part 2

CASES CITED : Attorney-General for New South Wales v Tillman [2007] NSWCA 119

PARTIES : State of New South Wales Steven Roy Davis

COUNSEL : Mr D Staehli SC and Mr D Kell (Plaintiff) Mr A Haesler SC and Mr C Smith (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

EX TEMPORE JUDGMENT 1 HIS HONOUR: The State of New South Wales seeks orders, including an order pursuant to s 16(1) of the Crimes (Serious Sex Offenders) Act 2006, (the Act), that the defendant be detained in a correctional centre on an interim basis for a period of 28 days from 20 May 2008. 2 The defendant was sentenced by Geraghty DCJ on 22 February 2007 on one count of aggravated sexual assault contrary to s 61J of the Crimes Act 1900 to a term of imprisonment of seven years commencing on 25 May 2001. The head sentence for which the defendant is currently imprisoned expires on 20 May 2008. 3 The Court may make an order for the interim detention of the defendant if the matters in ss 16(1)(a) and (b) of the Act are established. 4 Section 16(1) of the Act relevantly provides: "If, in proceedings on an application under this Part for a continuing detention order, it appears to the Supreme Court: (a) that the offender's current custody (if any) will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court may make an order for the interim detention of the offender."

5 The orders sought by the plaintiff include the appointment of two qualified psychiatrists to conduct separate psychiatric examinations of the defendant pursuant to s 15(4) of the Act. Those appointments have not been arranged. It is plain that the defendant's current custody will expire before the application for a continuing detention order is determined. 6 The Court is required by s 16(1)(b) of the Act to look at what is alleged in the supporting documentation to see whether it would, if proved, justify the making of either a continuing detention order or extended supervision order. 7 The use of the word "may" in s 16 confers a discretion enabling the court in a proper case to decline to make an order for interim detention, even if it appears that the supporting documentation justifies the making of the interim order which is sought: see Attorney-General for New South Wales v Tillman [2007] NSWCA 119. 8 What is required for the making of an extended supervision order or a continuing detention order is set out in ss 17(2) and 17(3) of the Act respectively. In determining whether the power to grant an interim detention order is enlivened, the court is not involved in weighing the supporting documentation or predicting the ultimate result. As was said by the court in Tillman at [98]:

"The power is enlivened if the supporting documentation would, if proved, justify the making of either category of final order bearing in mind the elevated standard of proof stated in ss 17 (2) and (3). That threshold question is to be resolved without considering what evidence might be called by the offender at the final hearing. Indeed, it is to be considered without taking into account the evidence (if any) called by the offender in the interim hearing: such evidence may go to (relevant) discretionary matters, but would not cast light upon what is alleged in the Attorney General's supporting documentation."

9 A large amount of material has been tendered in support of the application. I do not propose to detail all of it. 10 The defendant's serious sexual offending commenced on 23 August 1992 when he attacked a woman on her 5-acre property at Kemps Creek where she lived alone. He smashed the door of the victim's house in, threatened to kill her, and then sexually assaulted her. 11 On 5 October 1992 the defendant sexually assaulted an agriculture teacher at St Marys during which he threatened to use a knife against her. The attack took place at 7am when the victim was cleaning out some sheds at Dunheved High School. 12 For the offending which occurred on 23 August 1992 the defendant was relevantly charged with one count of break and enter and attempt to have sexual intercourse without consent, two counts of sexual intercourse without consent and one count of assault with an act of indecency. For the offending on 5 October 1992 he was charged with one count of sexual intercourse without consent. Following his pleas of guilty to each count Viney DCJ sentenced him on 21 October 1993 to a total term of imprisonment of eight years with a non-parole period of five years. 13 On 21 May 2001 the defendant sexually assaulted a woman in the early hours of the morning at Darlinghurst. During the assault the defendant struck the victim in the face and held her tightly around the throat to the extent that the victim thought that she would suffocate if she continued to struggle. This offence was committed a few months after the defendant had been released from prison on 31 January 2001. For this offending the defendant was charged with the offence of aggravated sexual intercourse without consent, contrary to s 61J of the Crimes Act. 14 The defendant was found unfit to plead. On 13 May 2003 a jury returned a verdict that, on the limited evidence available, the accused had committed the offence charged after a special hearing, pursuant to Part 2 of the Mental Health (Criminal Procedure) Act 1990. On 11 July 2003 Ainslie-Wallace DCJ nominated a limiting term of 10 years to commence on 21 May 2002 and recommended that the offender be kept in the prison hospital where he was then located. 15 On 5 June 2006 Berman DCJ found the defendant fit to be tried and the sentence to which I have referred was imposed by Geraghty DCJ on 22 February 2007. 16 All of the sexual offences for which the defendant has been sentenced in the past, with the exception of the count of assault with an act of indecency, are "serious sex offences" as defined in s 5(1) of the Act. The defendant is a sex offender for the purposes of the Act. The offences involved three separate victims. 17 These serious sexual offences reveal a pattern of offending behaviour against women who were strangers to the defendant, which was opportunistic and predatory, and was coupled with actual and threatened violence. 18 The defendant's record of compliance with obligations imposed upon him by a court or upon release on parole is poor. The most relevant, perhaps, is that he committed a number of offences whilst on parole in respect of the sentences imposed by Viney DCJ. It appears that he had been released to parole on 16 March 1998 and the parole order was revoked on 22 March 1999. 19 There is in the supporting material an affidavit affirmed by Narcisa Sutton, a psychologist, on 21 April 2008. Ms Sutton assessed the defendant's potential for reoffending with reference to both his static risk factors using the instrument known as a Static-99 and his dynamic risk factors. A sexual offender who is scored at 6 or above using Static-99 is classified as within the high-risk category with regard to the static variables. 20 The raw score obtained for the offender was 8. The score 8 places the defendant in a group of offenders who on average sexually reoffend at 39 per cent within five years and 45 per cent within 10 years. It is important to observe that these are estimates and the score does not directly correspond to the recidivism rate of an individual offender. The Static-99 can only act as a guide. 21 The dynamic risk factors of the defendant which the psychologist found to be of concern include intimacy deficits, general self-regulation, attitudes supportive of a sexual assault and sexual self-regulation, and the defendant's mental illness, when untreated, which impacts on his risk of reoffending. 22 Ms Sutton assessed the defendant as at high risk of sexual and other violent reoffending unless all relevant dynamic risk factors are addressed. She opined: "He has a number of significant treatment needs; for continued management of his mental disorder; for issues related to his long standing problem with alcohol abuse and patterns of living related to his poor intimacy and sexual offending. The issue of his ability to be sexually aroused with a unwilling victim and to use violence to gain compliance needs to be explored and examined." 23 The psychologist expressed the view in the report dated 19 May 2007 [NS-1, tab 3] that the defendant should be referred to the Custody Based Intensive Treatment program (CUBIT) to help him gain some understanding of the dynamics that affect his sexual risk and how to manager them. 24 Dr David O'Dea, a psychiatrist, treated the defendant in C ward at the Long Bay Prison Hospital complex between 12 December 2002 and 7 September 2006. He concludes in a report dated 13 December 2006 that the defendant is suffering from a severe chronic schizophrenic illness complicated by a history of alcohol and cannabis abuse and dependence. He states at [25] [NS-1, tab 10]: "From a psychiatric perspective, it seems crucial that Mr Davis remain in structured supervised psychiatric treatment in the community and remain abstinent from alcohol, cannabis or other illicit substance abuse in the long term in order to optimise response of his schizophrenic illness to treatment and to manage and minimise the risk of further relapse of his psychiatric illness and further offending behaviour. Continued detention in the general prison population is likely to complicate the treatment of his schizophrenic illness..."

25 Ms Sutton in her report noted Dr O'Dea's concerns and was of the view that CUBIT is a more supportive environment than the defendant's placement in the general prison population. The therapists, she states, will be able to monitor his ongoing mental state in close cooperation with the forensic mental health staff. 26 In a report dated 11 March 2007 [NS-1, tab 2] Ms Sutton expressed the view that the defendant was unlikely "to derive much benefit from psychological therapy". In her most recent report dated 18 April 2008 the psychologist was of the view given the defendant's willingness to participate in treatment if so ordered by the court that it would be worthwhile to place him in the preparatory program for CUBIT. Ms Sutton adhered to that opinion during her oral evidence this morning. 27 It is evident that the defendant at the present time has not received any treatment which might assist him not to sexually reoffend. The defendant, it seems, expressed the wish in May 2007 to enter CUBIT. However, he was not then accepted into the program due to his security classification. A place in CUBIT was not offered to the defendant until, it seems, December 2007 which he declined in January for the reason that he was to be released this month. The approximate duration of CUBIT is 6 to 10 months and the defendant, it is clear, would not have completed CUBIT prior to his release if the offer had been accepted. 28 The defendant is now 35-years old. It appears he is the younger of two children of his mother's first marriage. He has three step-siblings from his mother's current marriage. He attended school to year 10 leaving at the age of 16-years without obtaining the School Certificate. He held a number of short-term unskilled positions after leaving school, interspersed by periods of unemployment. On the material before the court, it seems he has little support within the community. He has been in custody for almost eight years. 29 The application is supported by documentation that addresses each of the matters referred to in s 17(4) of the Act, which is relevant to the present application. 30 Considering in combination what is alleged in the supporting documentation, I am satisfied that it would, if proved, justify the making of a continuing detention order or extended supervision order. 31 Mr Haesler SC submits the Court should exercise its discretion and decline to make the order sought by the State as the defendant finds himself in his present position through no fault of his own. If the defendant's wish in May 2007 to participate in CUBIT had been accepted by the department, Mr Haesler contends, the defendant would not now be an untreated sex offender. 32 The delay in offering the defendant a place in CUBIT on the present material before me is disturbing. Ms Cindy Moore, the Deputy Manager Inmate Classification and Placement, in the classification review dated 6 December 2007 recognised the unfairness which might result from such delay when she states: "If the department has not let this inmate complete CUBIT because of his security classification, how can we seek to continue his detention when he could have, in theory, completed CUBIT before his expiry date." 33 If fairness to the defendant was the sole consideration in the exercise of the discretion, I would have declined to make the interim order sought. The primary object of the Act, however, is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community: s 3(1) of the Act. 34 I am satisfied by what is alleged in the supporting documentation, if proved, that the defendant is likely to commit a serious sex offence if he is not kept under supervision. 35 I do not propose dismissing the application. 36 Mr Haesler asked for an adjournment so that a risk management plan might be developed to enable the defendant's release on 20 May 2008. There is, however, no realistic prospect of a regime for extended supervision being devised within the next 10 days. 37 In my view, it is appropriate to make an order for interim detention of the defendant for a period of 28 days from 20 May 2008. 38 I make the following orders:

1. Pursuant to s 16(1) of the Crimes (Serious Sex Offenders) Act 2006 the defendant, Steven Roy Davis, be detained in a correctional centre on an interim basis for a period of 28 days from 20 May 2008.
2. Order pursuant to s 20(1) of the Act that a warrant issue for the committal of Steven Roy Davis to a correctional centre for the period specified in order 1 above.

3. Order that two qualified psychiatrists conduct separate psychiatric examinations of Steven Roy Davis and that those two psychiatrists furnish reports to the Supreme Court of the results of those examinations on or before 4pm on 11 June 2008. I direct the defendant to attend those examinations.
4. I direct that the plaintiff is to file and serve its further evidence by or on 16 June 2008.

5. I direct that the defendant is to file and serve his evidence by or on 20 June 2008.

6. I list the matter for mention for purpose of possible extension of the interim detention order on 16 June 2008 at 9.30am before Price J

7. I list the matter for hearing on 23 June 2008. I note the estimate of three days.

8. I further order that the parties have liberty to apply to the List Judge on one day's notice.

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