State of New South Wales v Davis

Term of the extended supervision order

1. The State seeks an extended supervision order for a period of five years. Mr Davis contends that three years would be adequate and sufficient. The latter approach would take into account the fact that Mr Davis successfully completed the CUBIT programme while in custody and that he has so far exhibited positive responses to supervision since his release.
2. In his report dated 13 August 2014 at page 22, Dr Samson Roberts offered the following opinion: "Having regard for Mr Davis' history of difficulties with respect to complying with community based supervision in the past, his limited participation in substance abuse programs and the requirement that he be supported in his reintegration into his community over a protracted period of time, an extended supervision order of five years would be appropriate from a psychiatric perspective."
3. Dr Jeremy O'Dea said this in his 5 September 2014 report at [102]: "[102] Mr Davis' risk of engaging in further sex offending behaviours in the community and of committing a further serious sex offence in the community, is likely to be long term, and of at least 5 years duration. Therefore, from a psychiatric risk management perspective, any appropriate risk management program implemented should be long term and at least of 5 years duration, and should be regularly monitored and reviewed every 6 to 12 months dependent on his progress."
4. Dr O'Dea and Dr Roberts each identified a return to alcohol use as Mr Davis' most significant risk factor. The evidence indicates that Mr Davis has support in the community to assist in maintaining his abstinence. However, Dr Roberts has noted that an earlier relationship that was supportive of ongoing abstinence from alcohol was not enough to prevent Mr Davis' relapse, "reflecting the fact that Mr Davis has a propensity to resume alcohol consumption irrespective of the social milieu": 13 August 2014 report at page 15.
5. The State contended in light of these opinions that Mr Davis' risk factors present an ongoing and unacceptable risk to the community over the long term and that an extended supervision order for the period of five years was called for in the circumstances.
6. It was not contended on behalf of Mr Davis that these medical opinions were flawed or should for some particular reason be discarded or disregarded. Instead, counsel for Mr Davis referred to well-known authority that drew attention to the onerous nature of any supervision order and the availability of a means to extend the period if circumstances warranted such a course: see, for example, State of New South Wales v Conway [2011] NSWSC 925; State of New South Wales v Scerri [2012] NSWSC 271; Attorney General for the State of New South Wales v Steadman [2013] NSWSC 170.

Consideration

1. Mr Davis was born in February 1959 and has a long and unfortunate criminal history of offending, including sexual offending. This would appear to have commenced in June 1976 when he was only 17 years of age. He is now 57 years old.
2. On 4 June 1976, Mr Davis assaulted a female on a train. He was intoxicated at the time. He was fined $150 and sentenced to 30 days detention.
3. On 18 October 1978, Mr Davis committed an act of indecent assault upon his 7 year old female cousin. The offence was committed while on a recognisance. He had been drinking prior to the assault. He was sentenced on 17 September 1979 to a further 5 year recognisance.
4. On 8 February 1980, Mr Davis was arrested in Victoria and extradited to New South Wales where he was charged with assault and robbery whilst armed. The victim of the offence was a 26 year old mother of two who was camping with her husband and children at a caravan park near Eden. The victim's husband had gone fishing and she was asleep in a tent with only her children. Mr Davis entered the tent, placed a towel over her face and held a screwdriver to her neck. Mr Davis told her that he would cut her throat if she screamed or moved. He pulled her night gown over her face and ultimately penetrated her. He made repeated demands for money and threatened to cut the victim's throat and those of her children. Mr Davis had been drinking prior to the commission of these offences. He was sentenced to 13 years imprisonment on 16 December 1980 for the sexual assault and 9 years imprisonment for the armed assault and robbery. The sentencing judge recommended that Mr Davis receive treatment for his sexual problems.
5. On 28 July 1998, Mr Davis assaulted his then wife. He had consumed alcohol before slapping and punching her to the face and head. She received cuts, abrasions and bruising. Mr Davis was sentenced on 29 August 1999 to a recognisance for 2 years.
6. On 24 March 2002, Mr Davis once again assaulted his wife. They had been consuming alcohol. He pushed her to the floor, placed his foot on her head and kicked her several times in the back. This continued into the following morning. Mr Davis was convicted on 26 February 2004 in relation to the assault occasioning actual bodily harm and sentenced to imprisonment for 18 months.
7. On 5 September 2003, Mr Davis was sentenced by Berman DCJ to a total of 12 years in custody, expiring on 18 July 2014, with a non-parole period expiring on 18 July 2010 for a series of offences, including an offence committed on 9 July 2002 involving the violent sexual assault of a woman in her home. He had been intoxicated at the time.
8. Following his release on parole, Mr Davis committed an aggravated sexual assault upon an 18 year old woman on a train that they joined at Central Station. Mr Davis was intoxicated at the time. He pleaded guilty to indecent assault and was sentenced to 2 years imprisonment with a non-parole period of 18 months.
9. The evidence suggests that Mr Davis has generally, although not exclusively, responded poorly to supervision. This is despite participating in several programmes designed to deal with drug and alcohol and sexual offending problems, including PREP, CUBIT and Getting SMART, as well as psychological and psychiatric assessment and counselling. He currently resides at the Nunyara Community Offender Support Program.
10. I am sympathetic to the notion that continual supervision can in some circumstances operate to extend and prolong the difficulties with which Mr Davis is required to deal if it forestalls opportunities for him to achieve some form of insight and associated independence. The difficulty that I see with any period of supervision less than five years, however, is that Mr Davis' history of violent offending in general and sexual offending in particular is of such longstanding that short to medium term supervision will be inadequate to address his problems. The aspect of community safety looms large in this assessment as well.
11. Drs O'Dea and Roberts are of one view. I have not been directed to any countervailing or alternative opinions. Each expert foresees long term supervision as the only likely source of effective assistance for Mr Davis as a way to address future offending by him in the circumstances. I am unable to disagree with their prognoses. Mr Johnston SC who appears for Mr Davis accepts that the medical and psychological prognostications about the risks associated with Mr Davis reoffending and the need for long term supervision to accommodate that risk all point in the same direction.
12. It is well established and uncontroversial that the appropriate duration of an extended supervision order is referrable to the risk of the offender committing further offences: see Johnson J in State of New South Wales v Tillman [2008] NSWSC 1293 at [62]. The safety and protection of the community and the need to encourage serious sex offenders to undertake rehabilitation are paramount.
13. In the case of Mr Davis, the psychiatric and psychological experts agree that his abstinence from alcohol and other drugs is crucial to the management of his risk in the community over the long term. It follows that an assessment of the appropriate duration of an extended supervision order must take account of the associated risk of relapse into alcohol use. Unfortunately, Mr Davis' use of alcohol and other drugs has been persistent and of longstanding.
14. The risk assessment report dated 20 June 2014 prepared by Kate Solomon reveals at [29] that Mr Davis appears to have been able to manage himself responsibly for periods of approximately 12 months following his release from incarceration but has been unable to maintain that position over the longer term: "OVERALL RESPONSE TO SUPERVISION 29. Mr Davis' response to supervision has been consistently poor and resulted in the State Parole Authority revoking his parole on at least four occasions. Initially when released Mr Davis appears to be able to manage himself responsibly; after both his lengthy incarcerations he has attracted minimal negative attention from the supervising bodies for at least one year. However Mr Davis has been unable to maintain this satisfactory response and consequently destabilised; he has disengaged from the authorities, not sought help from his support network, left his accommodation and relapsed into alcohol use. Mr Davis' drinking has escalated rapidly and he has attracted the attention of Police due to drinking in a public park (COPS, Event number 25/03/2014). When asked during interview (26/05/2014) why he did not seek assistance from Community Corrections, Mr Davis stated that he was afraid of being breached. However he also admits that due to his high levels of alcohol consumption he was unable to make good decisions."
15. That assessment is redolent of what is otherwise emphatically reflected in other assessment reports as well.
16. I am satisfied that in the light of the whole of the evidence relied upon by the State that Mr Davis' risk factors present an ongoing and unacceptable risk to the community. His historical and apparently intransigent and persistent problems with alcohol, and the need for continued support to maintain abstinence, are a reoccurring theme throughout the early and current expert opinions. I am equally satisfied that the ongoing and unacceptable risk to the community posed by Mr Davis is likely to exist and to persist over the long term. I am accordingly of the opinion that an extended supervision order for the period of five years is called for in the circumstances.
17. I note that in forming my opinion and in arriving at my conclusions I have had specific regard, among other material, to the several expert reports tendered without objection and marked as exhibits "B" to "F" inclusive. I have also had similar regard to the affidavits upon which the State has relied, which were read without objection and which for convenience have been assembled in a folder that became exhibit "A" in the proceedings.

Conditions

1. Not all of the proposed conditions were in dispute. In accordance with s 11 of the Act, I am required to be satisfied "having regard to the scope, purpose and objects of the Act that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order": Wilde v State of New South Wales [2015] NSWCA 28 at [53].
2. In State of New South Wales v Kamm [2016] NSWSC 1, I considered the need in the particular circumstances of that case to ensure that the conditions imposed were not more onerous or restrictive than the nature of the case required. For example, a sexual offender whose conduct has been exclusively directed to female children is not to be unnecessarily restricted from having contact with adult females against whom he has no history of, or any demonstrated propensity for, sexual offending. Similarly, restrictions on the use or consumption of alcohol or drugs have no automatic place in a supervisory regime with respect to an offender with no antecedent or anticipated problems with drugs or alcohol.
3. Mr Davis originally contended in these proceedings that proposed conditions 14, 15, 26, 28 and 35 could and should be amended so as not unnecessarily to impose too onerous or inappropriate restrictions on him. Those conditions were originally proposed in the following terms: "14. The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO. 15. The defendant must not leave New South Wales without the approval of CSNSW. 26. The defendant must not approach or have contact without [sic, with] anyone he knows is under 18 unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO. 28. The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol. 35. The defendant must not carry on his person, at any time he has left his residence, any knife, syringe or other cutting instrument or any rope, cord, cable ties, or other instrument of restraint."
4. Mr Davis submitted that these conditions were unduly restrictive. However, the State has now conceded that the conditions should be revised to take account of these concerns. Accordingly, the conditions now listed in the Schedule to these reasons reflect what has now been agreed between the parties are suitable in the present circumstances. More importantly, they also represent what in the circumstances of this case I consider to be appropriate and necessary conditions.
5. In forming that view I have taken account of the fact that Mr Davis will be subject to this regime for a period of five years in accordance with my decision in that respect. The intrusive and onerous nature of the conditions has therefore to be assessed having regard not only to the conditions themselves but to the period in Mr Davis' life over which they will apply. In my experience, however, with the confidently anticipated competent and professional assistance of those with whom Mr Davis will be required to interact during the period of his supervision, the likelihood is that a settled and workable system or arrangement will develop so that the administration and enforcement of the conditions becomes a matter of mutual understanding rather than a source of conflict. In that respect I encourage the parties to cooperate whenever and wherever possible.

Conclusions and orders

1. In the circumstances I make the following orders: 1. Order pursuant to s 5C of the Crimes (High Risk Offenders) Act 2006 that Paul Edward Davis be subject to a high risk sex offender extended supervision order for a period of five years from today. 2. Direct pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 for the period of the high risk sex offender extended supervision order that Paul Edward Davis comply with the conditions set out in the SCHEDULE to these orders. SCHEDULE Part A: Reporting and Monitoring Obligations Monitoring and Reporting 1. The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order. 2. The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO. 3. The defendant must follow all reasonable directions by his DSO or any other person supervising him. 4. The defendant must attend the police station nearest to his approved accommodation within 3 days of the date of this order and provide a copy of this order. Electronic Monitoring 5. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of Movements 6. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 7. If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period. 8. The defendant must not deviate from his approved schedule of movements except in an emergency. 9. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing. Part B: Accommodation 10. The defendant must live at an address approved by his DSO. 11. The defendant must be at his approved address between 9pm to 6am unless other arrangements are approved by his DSO. 12. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. 13. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. 14. The defendant must not permit any person to stay beyond 9pm or overnight at his approved address, without the prior approval of his DSO. Part C: Place and travel restrictions 15. The defendant must not leave New South Wales without the prior approval of his DSO. 16. The defendant must surrender any passports held by the defendant to the Commissioner. 17. The Defendant must not go to a place if his DSO tells him he cannot go there. 18. The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, or where alcohol or drugs are illegally sold. Part D: Employment, finance and education 19. If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO. 20. The defendant must not start any job, volunteer work or educational course without the approval of his DSO. 21. The defendant must provide any information relating to his financial affairs, including income and expenditure, to his DSO if directed to by his DSO. Part E: Drugs and alcohol 22. The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed. 23. The defendant must submit to testing for drugs and alcohol as directed by his DSO. 24. The defendant must not enter any licensed premises without the approval of his DSO. 25. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO. Part F: Non-association Association with Children 26. The defendant must not approach or have contact with anyone who he knows is under 18 without the approval in writing of his DSO or in the company of a prior approved person. Associations with Others (not children) 27. The defendant must not associate with people that his DSO tells him not to. 28. The defendant must not associate with any people who are consuming or under the influence of illegal drugs. The defendant must not associate with any persons who are consuming alcohol without prior approval of his DSO. 29. The defendant must not engage the services of sex workers. 30. If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history. 31. The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service. Part G: Gambling 32. The defendant must not gamble. 33. The defendant must seek assistance in controlling his gambling, if directed by the DSO. Part H: Weapons 34. The defendant must not possess or use any firearm within the meaning of s.4 of the Firearms Act 1996 or prohibited weapon as defined in s.4 and Schedule 1 of the Weapons Prohibition Act 1998. 35. The defendant must not carry on his person, at any time he has left his residence, any knife, syringe or other cutting instrument or any rope, cord, cable ties, or other instrument of restraint, without prior approval from his DSO. Part I: Access to the internet and other electronic communication 36. The defendant must give his DSO a list of all devices he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names used by the defendant and the nature and details of the internet connection, as directed. 37. The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet. 38. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. 39. The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately. Part J: Search and seizure 40. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to g below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or anything in, the defendant's approved address; e. search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or anything in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person. 41. For the purposes of the above condition: a. a search of the defendant means a garment search or a pat-down search. b. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. 42. During a search carried out pursuant to condition 40 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. 43. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 44. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions [40] - [43]. Part K: Access to pornographic, violent and classified material 45. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, R18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the DSO. Part L: Personal details 46. The defendant must not change his name from "Paul Edward Davis" or "Edward Paul Davis" or use any other name without the approval of his DSO. 47. The defendant must not use any alias, log-in name, or a name other than "Paul Edward Davis" or "Edward Paul Davis" or use any email address other than those known to the DSO under condition 36 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email. 48. The defendant must not change his appearance without the approval of his DSO. 49. The defendant must let CSNSW photograph him. 50. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details. Part M: Medical intervention and treatment 51. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. 52. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend. 53. The defendant must take all medications that are prescribed to him by his healthcare practitioners. 54. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. 55. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO. 56. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

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: 09 March 2016