State of New South Wales v Davis

Crimes (Serious Sex Offenders) Act 2006 s 5, LEGISLATION CITED : s 17(1)(a), s 17(1)(b), s 20(1), Crimes Act 1900 s 61J Mental Health (Criminal Procedure) Act 1990 Pt 2

CASES CITED : Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Tillman v The Attorney General for the State of New South Wales [2007] NSWCA 327

PARTIES : State of New South Wales Steven Roy Davis

Mr D Staehli SC (Plaintiff) COUNSEL : Mr DT Kell (Plaintiff) Mr A Haesler SC (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

EX TEMPORE JUDGMENT 1 HIS HONOUR: By an amended summons which has been filed in court this day, the plaintiff, the State of New South Wales, seeks an order pursuant to s 17(1)(b) of the Crimes (Serious Sex Offenders) Act 2006 (the Act) that the defendant be subject to a continuing detention order for a period of up to 5 years from the date of the order. 2 A further order is sought in particular that, in the event that the court makes an extended supervision order pursuant to s 17(1)(a) of the Act in place of the orders sought in orders 2 and 3, the defendant should be subject to an extended supervision order for a period of five years from the date of the order by complying with certain conditions which are specified in the amended summons. 3 At the commencement of the application yesterday Mr Haesler SC for the defendant informed the Court of the defendant's acceptance that some form of order is required. Steps have been taken since the interim orders were made on 8 May 2008 to develop a risk management plan. Mr Haesler said that it has been a problem for both parties to find accommodation where there can be a significant level of supervision. It seems that the Department of Corrective Services (the Department) anticipates opening by September 2008 a community support accommodation facility at Malabar. It is proposed that a continuing detention order be made until this accommodation becomes available at which time the defendant might be released from custody under an extended supervision order. 4 I should add that, if other suitable accommodation becomes available, the short minutes of order which have just been just handed to me make provision for liberty to apply to either party on three days' notice. 5 Mr Staehli SC for the plaintiff joins in the application. The plaintiff does not contend that the Custody Based Intensive Treatment Program (CUBIT) will be of benefit to the defendant. 6 Short minutes of order have been proposed. They are as follows: 1. Pursuant to s 17(1) of the Crimes (Serious Sex Offenders) Act, the defendant be detained in a correctional centre for 4 months from today. 2. Pursuant to s 20(1) of the Act, a warrant issue for the committal of the defendant to a correctional centre for the duration of the continuing detention order referred to in the first order. 3. Liberty to apply on 3 days' notice. 4. Subject to any application made by either party beforehand, the balance of the summons be stood over for mention on 22 September 2008.

7 It is envisaged at that time that the Court would consider the making of an extended supervision order. Even though the parties are agreed as to the orders proposed, it is necessary for this Court to determine for itself whether those orders are appropriate. 8 Part 3 of the Act provides for the making of a continuing detention order against a sex offender. Section 4 of the Act defines "sex offender" to mean a person who has at any time been sentenced to imprisonment following his conviction of a serious sex offence. A "serious sex offence" is defined by s 5 of the Act. 9 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. 10 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. 11 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 8 years with a non-parole period of 5 years. 12 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 1900. 13 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. 14 On 5 June 2006 Berman DCJ found the defendant fit to be tried. On 22 February 2007 Geraghty DCJ sentenced him on one count of aggravated sexual assault contrary to s 61J of the Crimes Act to a term of imprisonment of 7 years commencing on 25 May 2001. The head sentence expired on 20 May 2008. 15 All of the sexual offences for which the offender 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. 16 The defendant is a serious sex offender within the meaning of the Act. Section 3 of the Act provides: "Objects of Act (1) The primary object of this Act 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.

(2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation."

17 The present application is for a continuing detention order under s 17(1)(b) of the Act. Section 17 of the Act is relevantly as follows: "Determination of application for continuing detention order (1) The Supreme Court may determine an application for a continuing detention order:

(a) by making an extended supervision order, (b) by making a continuing detention order, or (c) by dismissing the application. (2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision. (3) A continuing detention order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order. (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 psychiatrists appointed under s 15(4) to conduct psychiatric 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 serious sex 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 serious sex offence, (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 earlier 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, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature. … (5) Part 2 applies in an extended supervision order made under this section in the same way as it applies to an extended supervision order made under s 9."

18 Where an application under s 17(1)(b) is made, the Court may make an extended supervision order, or a continuing detention order, or may dismiss the application. 19 An extended supervision order under s 17(2) or a continuing detention order under s 17(3) may only be made if, and only if the Court, in each instance, is "satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence". A continuing detention order under s 17(3) may not be made unless the Court is further satisfied to a high degree of probability "that adequate supervision will not be provided by an extended supervision order". 20 In Tillman v The Attorney General for the State of New South Wales [2007] NSWCA 327 Mason P said at [6]: "If the Court perceives itself able to devise a regime of extended supervision that will make it unlikely that the particular offender will relevantly reefed, then the combined effect of subsections (2) and (3) is that the lesser control is to be chosen. But if re-offending remains likely despite an extended supervision order, then the power to impose the more stringent control of a continuing detention order is engaged." 21 The plaintiff bears the onus of proof. The standard of proof is high. What is required by ss 17(2) and (3) is for the Court to be satisfied "to a high degree of probability." As was said by the Court of Appeal in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]: "The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion 'likely' as explained in TSL v Secretary to the Department of Justice (2006) 14 VR 109."

22 In Tillman the meaning of the word "likely" in s 17(2) and (3) was considered. Giles and Ipp JJA said at [89-90]: "Accordingly, we would hold that the word 'likely' in ss 17(2) and (3) denotes a degree of probability at the upper end of the scale, but not necessarily exceeding 50 per cent. The remarks Bell J made when articulating the test she intended to apply are to be understood in this sense. Her Honour said (at [29]): 'I have approached the determination in this case upon the basis that 'likely' in this context conveys the sense that it is probable, as distinct from possible, that the defendant will commit a further serious sex offence.' Accordingly, for the reasons stated, we differ, with respect, from what McClellan CJ at CL said in Winters on this issue. As well, we do not understand Bell J to have meant 'probable' as meaning 'more probable than not'. In our opinion, nothing her Honour said suggests this inference. For the reasons we have stated, we would hold that, in adopting this more limited approach, her Honour was correct. For the reasons we have explained, while 'likely' means 'probable', it does not mean 'more probable than not'.

The difference between likelihood in the sense of a high probability but not necessarily more probable than not, and likelihood as something more probable than not, may not be great. Expressed as percentages, which is incorrect because it suggests a mathematical precision which is unattainable and is an unhelpful approach, transition from 49 per cent to 51 per cent is not the key to application of ss 17(2) and (3)." 23 On this issue Mason P disagreed with Giles and Ipp. Mason P at [13] considered the "tighter" meaning of "more probable than not" should be chosen for "likely." 24 The determination of the present application is to be approached by adopting what was said by the majority in Tillman at [89-90]. The word "likely" in ss 17(2) and (3) denotes a degree of probability at the upper end of the scale but not necessarily exceeding 50 per cent. While "likely" means "probable", it does not mean "more probable than not." 25 The Court is required to have regard to the matters identified in s 17(4)(a)-(i) in addition to any other matter it considers relevant in determining whether or not a make a continuing detention order or extended supervision order. The factor identified in s 17(4)(g) is not relevant to the present proceedings. It is my understanding that he has not been subject to the requirements of these Acts. 26 An important consideration, although not identified in s 17(4), is that the making of a continuing detention order involves the deprivation of the liberty of an individual who has completed a sentence imposed by a Court. I consider that to be a relevant matter. The defendant has served the whole term of his seven-year sentence. 27 The serious sex offences involve three separate victims. They 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. 28 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. 29 Narcisa Sutton, a psychologist, assessed the defendant's potential for re-offending with reference to both his static risk factors using the instrument known as a Static-99 and his dynamic risk factors. A sex 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. 30 The raw score obtained for the offender was 8. The score 8 places the defendant in a group of offenders who, on average, sexually re-offend 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. 31 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 re-offending. 32 Ms Sutton assessed the defendant as at high risk of sexual and other violent re-offending 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 an unwilling victim and to use violence to gain compliance needs to be explored and examined."

33 Jayson Ware, a psychologist, who is the Statewide Clinical Coordinator of Sex Offender Programs with the Department, expressed the view that the defendant is a high-risk offender with a number of dynamic risk factors which have been identified within Ms Sutton's reports. He states that these dynamic risk factors specifically relate to the causation and maintenance of the defendant's sexual offending over time, and without specific tailored sex offender treatment are unlikely to have changed. 34 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. 35 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..." 36 Two psychiatrists, Dr Samson Roberts and Dr Anthony Samuels, provided reports to the Court pursuant to my orders. Dr Roberts interviewed the defendant on 23 May 2008. He observed that the defendant was ultimately confirmed to be suffering schizophrenia in 2002 and, despite early diagnostic uncertainty, he was treated accordingly with anti-psychotic medication to which his condition responded slowly. He notes that the defendant continues to demonstrate features of cognitive impairment, the basis of which is uncertain. Complicating the defendant's psychotic illness is his history of alcohol consumption. At the time of the first two offences Dr Roberts states the defendant was not believed to have been suffering a mental illness, however, it is more probable than not the defendant's mental state was undergoing deterioration during his teens. 37 Dr Roberts opines: "On the basis of the factors outlined above, in the absence of supervision, Mr Davis is considered to be at high risk of committing a further serious sex offence. In the absence of supervision, it is expected that Mr Davis will relapse to excessive alcohol use and on becoming non-compliant with anti-psychotic medication he will experience a relapse of his psychotic illness. Such an eventuality would replicate the circumstances in which Mr Davis committed such offences."

38 Dr Samuels interviewed the defendant on 20 May 2008. He considered the defendant's sexual offending as fitting more the profile of a rapist whose behaviour is medicated and driven by a combination of underlying brain damage, substance misuse and possibly mental illness. He was of the view that the defendant's offending would appear to be somewhat opportunistic in nature. Dr Samuels could find no evidence that the defendant suffers from paraphilia. 39 Dr Samuels opined that alcohol appears to be the pre-eminent factor in his sexual offending, but it seems very likely that his underlying brain damage and mental illness are compounding factors. It was Dr Samuel's view that the defendant is likely to commit a further serious sex offence if released into the community and not kept under supervision. 40 In my judgment of 8 May 2008 I remarked that it was evident that the defendant had not received any treatment which might assist him not to sexually re-offend. The defendant, I noted, had expressed the wish in May 2007 to enter CUBIT. However, he was not then accepted into the program due to his security classification. It appears that he has recently commenced the PREP group-based program based at MSPC, Long Bay Correctional Centre. The PREP program involves participation in a group for up to 14 weeks with a weekly group session and some homework tasks between sessions. As I understand it, the defendant has participated in three PREP sessions. The defendant's participation within PREP, Mr Ware explains, was commenced in order to further assess his ability to function within a group setting. Notwithstanding his recent attendance at the PREP sessions, the defendant is an untreated sex offender. 41 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 stepsiblings from his mother's current marriage. He attended school to Year 10 leaving at the age of 16 years without obtaining the School Certificate. It seems other than the support of his mother he has little support within the community. 42 Considering in combination the defendant's pattern of serious sexual offending the defendant's non-compliance with obligations imposed upon him by a court or upon release on parole, the expert evidence, particularly the opinions of Dr Roberts and Dr Samuels and the absence of treatment, I am satisfied to a high degree of probability that the defendant is likely to commit a further serious sex offence if he is not kept under supervision. 43 I do not propose dismissing the application. 44 Before a continuing detention order may be made the plaintiff must satisfy the Court to a high degree of probability 'that adequate supervision will not be provided by an extended supervision order'. 45 The onus is on the plaintiff to satisfy the Court to a high degree of probability that an extended supervision order will not obviate the likelihood that the defendant will commit a further serious sex offence. 46 Dr Roberts was of the opinion that ongoing incarceration solely for the purpose of CUBIT is of a dubious benefit. The expectations for CUBIT for the defendant, Dr Roberts noted, are of limited value. He stated that ongoing incarceration is not expected to better prepare the defendant for release into the community and, as such, his long-term rehabilitation is best served by a supported system of carefully planned and monitored supervision within the community. Dr Roberts outlined various treatment recommendations and stated: "It is expected that Mr Davis' compliance with the treatment recommendations outlined above on an indefinite basis would ensure his long-term stability with maintaining abstinence from alcohol, control of his schizophrenic illness and minimise his risk of re-offending."

47 A summary of Dr Roberts' treatment recommendations is found at page 45 of his report. They include weekly psychiatric review during the initial post-release period with reducing frequency deemed appropriate by the treating psychiatrist, compliance with daily administration of Antabuse and oral antipsychotic medication or fortnightly injectable medication, abstinence from all intoxicating substances and participation in regular psychotherapy with a suitably experienced psychologist. 48 In Dr Samuels' opinion it is highly unlikely the defendant would be able to cope with CUBIT. He believed that the CUBIT program would be too complex for the defendant. Targeting the issues of mental illness and substance abuse, to his mind, would be the most productive strategies to reduce the future risk of offending. Limiting the defendant's access to substances maybe achieved, Dr Samuels stated, in a structured, highly supervised setting and it would be important that, if he did manage to gain access to marijuana or alcohol, there was a capacity to quickly intervene and limit the potential consequences of such misuse. 49 Mr Ware noted in his affidavit the reservations expressed by Ms Sutton, Mr Rodriguez and Dr Ellis about the defendant's ability and/or capacity to benefit from the CUBIT group-based sex offender treatment program, or that at the least they believed that a comprehensive neuropsychological assessment was necessary. In Mr Ware's view it appeared unlikely that the defendant would benefit from CUBIT given his significant cognitive impairments. However, his view on this matter, he stated, may change if the defendant progresses well through the remainder of the PREP program. He points out that there are no sex offender specific treatment options of sufficient intensity suitable for a high risk sexual offender within the community offered either by the Department or any other organisation. 50 A Risk Management Plan (RMP) in the event that the Court determines to release the defendant from custody on an extended supervision order has been developed and is annexure "A" to the affidavit of Philip Ruse sworn 16 June 2008. He opines that the defendant would pose very serious risks in terms of community safety if he is released from custody even on the terms of an extended supervision order made with reference to the RMP. The RMP includes electronic monitoring and satellite tracking. It is apparent that such monitoring has its limitations. 51 Fundamental to the proposed RMP is suitable accommodation. Mr Ruse expressed the view that it was very important that any accommodation for the defendant should offer internal support structures to reduce his risk of non-compliance and relapse into drug, alcohol and sexual re-offending. With that proposition Mr Haesler does not disagree. Mr Haesler concedes that the defendant's mother could not provide the level of support which the defendant will require if an extended supervision order is made. 52 Despite many enquiries made by Mr Ruse suitable accommodation has not been found. What is currently envisaged is that the defendant should reside at the Community Offender Support Program (COSP) Centre at Malabar when it becomes available. The COSP Centre will, it seems, be staffed 24 hours a day, seven days a week with the aim of providing a high level of support and structure for residents. It is not anticipated that the COSP Centre will be open, as I understand it, until September of this year. 53 Adequate supervision, it is plain, cannot be provided for the defendant by the RMP until suitable accommodation is found. 54 It is difficult in any event to assess, on the material presently before this Court, the likelihood of compliance by the defendant with the proposed RMP. His history of compliance, as I have observed, in the past with court orders or parole has been poor. No evidence has been given by him in these proceedings. 55 I am satisfied at the present time to a high degree of probability that adequate supervision will not be provided by an extended supervision order. 56 The making of a continuing detention order has very serious consequences for the defendant. He has been detained under the interim detention orders and will continue to be detained in accordance with the proposed orders for a period of four months from today. He will be deprived of his liberty to which he is otherwise entitled. 57 It is regrettable that suitable accommodation is not presently available to enable the proposed RMP to be comprehensively considered. The Department's development of the COSP Centre at Malabar is, however, a positive development. 58 I, accordingly, propose to make the orders which are specified in the short minutes of order: 1. Pursuant to s 17(1) of the Crimes (Serious Sex Offenders) Act , the defendant be detained in a correctional centre for four months from today. 2. Pursuant to s 20(1) of the Act a warrant issue for the committal of the defendant to the correctional centre for the duration of the continuing detention order referred to in order 1. 3. Liberty to apply on 3 days notice. 4. Subject to any other application made by either party beforehand the balance of the summons be stood over for mention on 22 September 2008. **********

03/07/2008 - Legal counsel for the plaintiff corrected - Paragraph(s) commencement of judgment

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