State of New South Wales v Davis - [2021] NSWSC 516 - NSWSC 2021 case summary — Zoe

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State of New South Wales v Davis

[2021] NSWSC 516

Supreme Court of NSW|2021-04-28|Before: Cavanagh J, Johnson J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-04-28

Before

Cavanagh J, Johnson J

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

Judgment

By way of an amended summons filed on 28 April 2021, the plaintiff, the State of New South Wales ("the State") brings proceedings against the defendant, Glenn Davis, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act").
There was a preliminary hearing before Johnson J on 4 February 2021.
As set out in the judgment of 10 February 2021 [1] , Johnson J made orders pursuant to s 7(4) of the Act appointing two qualified psychiatrists or psychologists to conduct separate examinations of the defendant and furnish reports to the Court, as well as an order directing the defendant to attend those examinations. His Honour also made an interim supervision order ("ISO") on the conditions set out in the judgment.
On the preliminary hearing, the defendant did not dispute that he should be subject to an ISO or that he should be psychiatrically examined. He merely raised issues relating to some of the conditions proposed by the State.
On 11 March 2021 the defendant was examined by Professor Emeritus Susan Hayes. Professor Hayes provided a report dated 25 March 2021.
On 12 March 2021 the defendant was examined by Dr Kerri Eagle, forensic psychiatrist. Dr Eagle provided a report dated 26 March 2021.
The final hearing came on before me on 28 April 2021. Mr Mykkeltvedt appeared for the State and Mr Baldeo appeared for the defendant. Both parties provided helpful written and oral submissions.
The defendant did not dispute that he should be subject to an extended supervision order ("ESO") but emphasised that the imposition of an ESO requires independent satisfaction by the Court. The focus of the hearing was on the conditions of the ESO.

[2]

Legislation

As set out in s 3 of the Act, the primary object of the Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders, so as to ensure the safety and the protection of the community. Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. In making any orders under the Act, I would have regard to the objects of the Act.
Section 5B of the Act provides the circumstances in which the Court may make an ESO: 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
As the defendant did not dispute that he should be subject to an ESO, it must be that he accepts that the Court would be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious offence if not kept under supervision under the ESO. However, even though the defendant did not dispute this, it is necessary that the Court be satisfied independently that he poses an unacceptable risk.
Being satisfied to a high degree of probability means something beyond more probable than not. The existence of the risk, that is, the likelihood of the defendant committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof although not to the criminal standard of beyond reasonable doubt. [2]
The meaning of "unacceptable risk" was considered in Lynn v State of New South Wales: [3] "[50] As the respondent pointed out in its submissions, by reference to dictionary definitions, the word 'unacceptable' requires context in which, or parameters against which, the 'unacceptable' risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is 'so far from a required standard, norm expectation, etc as not to be allowed'. The Oxford Dictionary defines the word by reference to its antonym 'acceptable'. Something is 'acceptable' if it is 'tolerable or allowable, not a cause for concern; within prescribed parameters'. [51] What the court, therefore, must find to be unacceptable is the 'risk' that the offender poses 'of committing a serious violence offence if … not kept under supervision'. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made."
Importantly, the impact that an ESO may have on the defendant's liberty is not a relevant consideration for the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision, but the Court may take that factor into account in determining whether to exercise its discretion pursuant to s 9 of the Act. [4]
That is, whilst an ESO may not be made unless the Court is satisfied that the defendant poses an unacceptable risk as referred to in s 5B(d) of the Act, even if such a finding is made, the Court still has a discretion in the making of an ESO.
In determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Court. [5]
Further, in determining whether or not to make an ESO, I must have regard to the factors as set out in s 9(3) of the Act.

[10]

The report and evidence of Professor Susan Hayes

Professor Hayes examined the defendant on 11 March 2021. For the purposes of her assessment, she also carried out an extensive review of all of the material which has been made available on this hearing. The defendant stated to her that there is zero chance of him re-offending because he is sick of being in and out of jail.
She assessed the defendant using the assessment of risk and manageability of individuals with developmental and intellectual limitations who offend - sexually instrument (ARMIDILO-S), an instrument designed specifically for use with individuals with a borderline or mild intellectual impairment who have offended sexually or displayed sexually offensive behaviour. As she observed, the instrument balances the risk ratings with the protective ratings. It is a process focussed on reducing the risk of reoffending and promoting related protective factors.
She also used the STATIC-2002R to assess static historical factors as required by ARMIDILO-S. On the STATIC-2002R, the defendant's score placed in the moderate-high range yielding a 27.2% predictive recidivism rate over a five year period.
She considered that the overall convergent risk estimate for the defendant using both ARMIDILO-S and STATIC-2002R is moderate having regard to the current interventions, management plan and support. However, in a less highly supervised and structured environment the risk would rise to high.
In her opinion, the defendant meets the criteria for substance use disorder in remission. It has been chronic throughout his lifetime although he is presently on the buprenorphine program which she says prevents him from using heroin and reduces cravings. Provided he remains on the program, his substance use disorder is likely to remain in remission.
The results of cognitive testing indicate that the defendant functions in a range of low average ability for cognitive reasoning, although this is not a cognitive deficit as such. She observed that the defendant maintains he has memory difficulties and on that basis it would be desirable for information to be given to him in a number of different ways and reinforced repeatedly.
She concluded that the defendant poses a threat of committing a serious offence, however that threat can be reduced with appropriate strategies. He poses a medium to high risk of general offending. She considers that his risk factors may fluctuate over time. In particular, if he reverts to substance use or his levels of support or monitoring decrease or he experiences a negative change in his mental health or adverse situational changes, the risk factors may increase.
She reviewed the conditions proposed by the State. She believes they are appropriate. She says that the conditions will assist with the management of his risk. He needs structure, support and clarity.
Ultimately, she concluded that as he has only been recently released from prison, there is a degree of unknown as to what may happen in the future. He is finding it difficult to adapt to life in the community and he needs ongoing support. The major risk factor remains if he reverts to using illicit substances.
She confirmed this view during cross-examination. She considered that the structure that should be in place would involve the defendant submitting a weekly schedule of movements to which he must comply and that he needed to be extensively supported, particularly in terms of alcohol and drugs.
Professor Hayes agreed in cross-examination that the defendant expressed a high motivation to remain offence-free and drug and alcohol-free and not engage in any violence. She did not consider that the State being able to review the defendant's bank accounts or financial affairs would add to his risk profile being elevated, although it might be an indicator of whether or not funds may be going to sources which are not identifiable.
She agreed that many of the conditions proposed by the State would restrict his ability to associate with certain persons. She was uncertain whether all of the more recent offending, that is, subsequent to 1990 involved persons he knew rather than strangers, although she did not consider that that particular fact altered the risk of reoffending.
She also agreed that it was important that the defendant have access to the internet and social media as far as possible, although it is important that he is not searching people's backgrounds and searching for people who did not want to have contact with him. That could be a trigger point. Ultimately, she accepted that there were a number of positive signs.

[11]

The report and evidence of Dr Kerri Eagle

It is notable that the defendant continued to assert to Dr Eagle that he did not remember the offending and that in his mind he did not do it, although he has acknowledged that his DNA was there. He said that he only entered a plea of guilty to obtain the discount. He said that he had not undertaken the CUBIT or HISOP courses in custody because he was embarrassed, although he supposed he might engage in counselling now.
Further, he explained his general offending as being based on him being stupid and too busy getting stoned. He said that he used to carry a knife as everyone carried one back then.
As Dr Eagle observed, the defendant changed his name from Glenn Schnaars to Glenn Davis. He said he did so on the basis that he did not want to have his father's name.
Dr Eagle made particular references to the OIMS case notes and the breaches whilst the defendant was in custody. Specifically, Dr Eagle referred to the inmate discipline action form dated 13 October 2020 which suggested aggression towards a corrective services officer.
Dr Eagle considered that the defendant did not demonstrate any experiences consistent with psychotic phenomena. Further, he displayed an awareness of the role that alcohol and other substances have played in his offending.
She did not consider that the defendant suffers from any major mental illness. He has a substance use disorder which is currently in remission. He suffers from an anti-social personality disorder. His offending is as against the background of exposure to childhood violence and a dysfunctional childhood experience. She considered he would be at a particularly increased risk of offending in circumstances in which he was in a dysfunctional relationship, unemployed and living a chaotic lifestyle and abusing alcohol or illicit substances.
He falls into the category of offenders at an elevated risk of committing a further serious offence such as sexual assault or a serious violence offence. His risk factors are increased in the absence of any supervision regime. The risk increases if he relapses into substance abuse.
She agreed with the proposed conditions as they set out a broad framework of supervision and are intended to monitor the defendant's movements, associations, living conditions, employment, substance abuse and relationships. She accepted that scheduling and electronic monitoring can be perceived as onerous and may limit the defendant's ability to participate in certain types of employment.
Dr Eagle was cross-examined on matters relevant to the disputed conditions. She agreed that scheduling and structure is very important to reducing the risk in respect of the defendant. She also agreed that the defendant appeared to be insightful in terms of his drug and alcohol abuse and this was a positive sign in his future risk being managed. She accepted that leaving aside electronic monitoring, all of the conditions should result in the provision of a very strict structure and stability for the defendant and that compliance with the conditions would mitigate the risk.
I asked Dr Eagle about electric monitoring. She stated that electric monitoring itself does not prevent re-offending. She agreed that it does not prevent impulsive behaviour. It merely provides a mechanism by which movements might be monitored. She said there is no evidence that it prevented offending. She accepted in re-examination that deviation from the schedule of movements can provide an early indication that a person might not be travelling well.
In terms of the monitoring of his online activity, she agreed that this issue required a lot of balance and discretion. She agreed that there is a lot of scope for misuse of online interactions but she would only state that there was a need for an ability to monitor those interactions as it might lessen the potential for inappropriate interactions.

[15]

Condition 4 - Electronic monitoring

The defendant initially opposed the imposition of any electronic monitoring. The State submits that electronic monitoring should be imposed as directed by a DSO. There can be no doubt that the obligation to wear electronic monitoring equipment is an onerous condition.
I agree with the defendant's submission that any conditions which are imposed must be directed to reducing the risk of recidivism of a serious offence having regard to the defendant's particular risk profile as opposed to reoffending in a general way. Alcohol and substance abuse have been a key feature of the defendant's risk profile.
I have had regard to the evidence of Kelli Grabham as to the way in which electronic monitoring operates. Dr Eagle opines that use of electronic monitoring does not prevent reoffending. Nor does it prevent or even inhibit impulsive behaviour.
Ultimately, Dr Eagle came to the view that electronic monitoring would not be appropriate on a longer term basis. I took her to mean that the use of electronic monitoring with this particular defendant on a longer term basis may be counter-productive. She opined that there is actually no real benefit from a risk management perspective in having all of the conditions in place for three years because if the defendant is not given the opportunity to develop his independence with a gradual lessening of restrictions, he will have no ability to demonstrate the lower risk or will not be able to motivate himself. There would be no opportunity to be a pro-social human being.
She accepted that there is at the moment a lot of uncertainty as to how he was going to adjust but considered that if he could demonstrate after a few months that the restrictions could be lessened, then she would be in favour of somewhat lessening the restrictions.
I suspect that Dr Eagle's views caused the parties to reconsider the electronic monitoring condition as shortly before the delivery of this judgment, I was provided with some modified proposed conditions.
I accept Dr Eagle's observations but I am concerned that the defendant has only been in the community for a very short period. In my view, the defendant should be subject to electronic monitoring only for a period of six months. That now accords with the condition proposed by the parties.
That six months should date from the date on which he was released into the community. That period will provide an appropriate indication as to whether the defendant is able to adjust to life in the community.
There remains an issue between the parties as to the precise terms of the condition. I do not consider that the potential re-application of electronic monitoring should be at the discretion of the DSO and I thus prefer the defendant's version.

[17]

Conditions 33 to 41 - Access to the internet and other electronic communication

The defendant again submits that these conditions are not associated with the defendant's risk profile. There may be conditions which are ordinarily sought in cases involving sexual offending but the defendant does not have a history of offending involving the use of electronic communication or even use of the internet more generally.
Both in State of New Wales v Lee [6] and State of New South Wales v Grooms (Final) [7] , this Court (per Hamill J and Fullerton J respectively) declined to impose similar conditions on the basis that there was nothing in the defendants' history which would suggest that they had a propensity to groom their victims or seek them out by electronic means.
The State refers to the earlier findings of Johnson J on the preliminary hearing. His Honour observed that it is reasonable to expect that the defendant will utilise social media to meet persons and communicate with them and this is a context in which monitoring of risk factors is appropriate. [8]
Whilst I accept that the defendant has emerged from custody into a world in which the use of the internet is much more prolific in terms of meeting people and dating, having said that, the conditions are again particularly onerous.
For example, whilst I initially understood that the defendant might have no opportunity to use a coded or encrypted messaging service, even WhatsApp is an encrypted messaging application or service.
The State emphasises that the conditions do not go so far as requiring the defendant to seek approval in advance in respect of the vast majority of his online activities, but suggest that the key is that he not be able to delete any information.
The difficulty with the conditions proposed is that it is important not to set the defendant up to fail. Conditions which are too onerous set the defendant up to fail and do not have the effect of reducing the risk. Indeed, they may increase the risk because they result in frustration on the part of the defendant and exacerbate those factors which lead to reoffending. Conditions which give a DSO almost complete control over an offender's internet usage in circumstances in which his history of offending and risk factors do not involve internet usage do seem very onerous.
Again, following the hearing there have been further discussions between the parties and the proposed conditions have been further limited. The central issue relates to whether the defendant must seek approval in advance or notify of usage within 24 hours.
I prefer the latter approach. I do not agree that the defendant must seek prior approval of a DSO as to whether he can access any social networking service. The evidence does not suggest that the risk factors will be reduced by such a condition. Nor do I agree that he must not use services such as WhatsApp.
The defendant no longer opposes conditions 40, 41 and 42.

[19]

ANNEXURE Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) In these conditions: "Associate" includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication). "Commissioner" means Commissioner for Corrective Services. "CSNSW" means Corrective Services NSW. "Defendant" means Glenn Davis, previously known as Glen Schnaars, the defendant in these proceedings and the subject of the order. "Digital Blueprint" has the same meaning as in the Weapons Prohibition Act 1998 (NSW) and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order. "Electronic Identity" means each of the following: (a) an email address, (b) a user name or other identity allowing access to an instant messaging service, (c) a user name or other identity allowing access to a chat room or social media on the internet, (d) any other user name or other identity allowing access to the internet or an electronic communication service. "Material" includes:

any written or printed material;
any picture, painting or drawing;
any carving, sculpture, statue or figure;
any photograph, film, video recording or other object or thing from which an image may be reproduced;
any computer data or the computer record or system containing the data; and
any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced. "NSWPF" means NSW Police Force. "Search" includes:
A garment search, being 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; and
A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched.

[27]

Part I: Access to the internet and other electronic communication 32. The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information). 33. The defendant must notify a DSO within 24 hours of use of any alias, electronic identity, log-in name, name other than "Glenn Davis" or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers. 34. The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO. 35. The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant to access any electronic devices, applications, websites or communication platforms, and the nature and details of the internet connection, as directed. 36. [deleted] 37. The defendant must not use any coded or encrypted messaging application or service, except WhatsApp or Facebook messenger or similar social networking application, without prior approval by a DSO. 38. [deleted] 39. The defendant must notify a DSO within 24 hours of accessing, joining and/or connecting to any social networking service or application, including, but not limited to, use of internet based email, instant messaging services, online community services, multi-player video games and other telecommunications-based services including text and voice services. 40. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order. 41. The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO. 42. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.

State of New South Wales v Davis

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Judgment (31 paragraphs)

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Legislation Cited (3)

Cases Cited (6)

Cited By (1)