State of New South Wales v Davis

Applicable Legal Principles

1. In determining the question whether an ISO should be directed, together with an order for examination of the Defendant by court-appointed experts, I have kept in mind the relevant provisions of the HRO Act and the authorities which have identified the principles to be applied including Attorney General for New South Wales v Tillman [2007] NSWCA 119, Cornwall v Attorney General for New South Wales [2007] NSWCA 374 and Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57.
2. If the Court is satisfied that an ISO should be made, the question arises as to whether the conditions as sought by the Plaintiff should attach to the ISO. Section 11 of the HRO Act specifies a range of conditions which may attach to an extended supervision order ("ESO") and thus an ISO. The conditions outlined in s.11 of the HRO Act impose positive obligations as well as restrictions upon a person. In considering whether to impose conditions, it is necessary to bear in mind that the effect of their inclusion is to expose the Defendant to criminal sanctions if they are breached so that a proper basis needs to be demonstrated for including the conditions in the first place: State of New South Wales v TT (Final) [2018] NSWSC 358 at [127].
3. Section 11 of the HRO Act does not require that there must be a specific demonstrated link to past offending which is the basis for an order made under the Act. Rather, the Court must be satisfied 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) 249 A Crim R 65; [2015] NSWCA 28 at 76-77 [53].
4. A balancing exercise is required so that the Court will seek to impose the least intrusive conditions, consistent with its assessment of the risk posed by the Defendant and a further assessment as to what conditions are likely to be effective. As part of this balancing exercise, the interests of the Defendant in liberty and privacy will properly be treated as relevant considerations in ensuring that unjustifiable conditions are not imposed: Lynn v State of New South Wales at 661 [129]-[130] and 665 [149].

Should an ISO be Directed With Respect to the Defendant?

1. I am satisfied that the threshold requirements under the HRO Act have been satisfied in this case so that it is open to the Court to consider the interim orders sought by the Plaintiff at the preliminary hearing. The concession made by counsel for the Defendant concerning the threshold requirements was appropriately made.
2. Having considered the evidence before the Court at the preliminary hearing, I am satisfied that an ISO should be directed as sought by the Plaintiff together with an order for examination of the Defendant by court-appointed experts. The approach of the Defendant in not opposing such orders is understandable in the circumstances of the case.
3. It is appropriate that I record, in relatively brief terms, why I have reached this view both to satisfy the requirement to provide reasons for making the orders and to assist the court-appointed experts and the Court at the final hearing of the Summons.
4. For this purpose, I have considered the material against the background of the considerations contained in s.9(3) HRO Act which the Court is called upon to consider on an application for an ISO.

The Defendant

1. The Defendant was born in May 1963 and is now 57 years old. He has an extensive criminal history in New South Wales dating back to 1981 with a variety of convictions including for driving offences, drug offences, house breaking, assault with act of indecency, assault occasioning actual bodily harm, affray, stealing cars, possession of knives and stalk/intimidation offences.

The Index Offences

1. The Defendant committed the index offences (a number of serious sex offences) against the victim, who was a stranger to him, in 1989 but he was not identified until his DNA was matched some 24 years later.
2. On 17 August 2015, following pleas of guilty, the Defendant was sentenced by his Honour Judge Colefax SC at the Parramatta District Court for three offences under s.61D(1) Crimes Act 1900 (as it then stood) of having sexual intercourse without consent knowing the victim was not consenting and an offence of stealing from the person under s.94 Crimes Act 1900. In 1989, the maximum penalty for each s.61D(1) offence was imprisonment for eight years, with a s.94 offence being punishable by a maximum penalty of imprisonment for 14 years. In addition, the sentencing Judge took into account on a Form 1, when sentencing for the first s.61D(1) offence, four further offences of having sexual intercourse without consent.
3. The Defendant was sentenced to an aggregate term of imprisonment for seven years and six months with a non-parole period of five years and seven months commencing on 19 August 2013.
4. Despite pleading guilty, the Defendant has consistently denied his guilt in relation to the attack, citing his lack of memory due to intoxication from drugs and alcohol at that time.
5. The Defendant's non-parole period expired and he became eligible for release on parole on 18 March 2019. However, the Defendant declined to seek release on parole, until a late application was made which came before the State Parole Authority on 14 January 2021 and was refused. Accordingly, his entire sentence will expire by effluxion of time on 18 February 2021.
6. A recital of the facts of the index offences demonstrate their gravity. The victim (a 28-year old woman who was a stranger to the Defendant) was walking through Mt Druitt during the early hours of 8 July 1989 after being at an RSL Club and dropping off her friend's car. As she walked, she was grabbed by the Defendant (then aged 26 years) and dragged into bushes in a nearby grassed area. There, the Defendant removed most of her clothing and had penile/vaginal sexual intercourse with her without her consent. The victim struggled and screamed and managed to use a pen knife to injure the Defendant. The Defendant covered her mouth and threatened to kill her.
7. The Defendant then sat on the victim's chest and forced his penis into her mouth telling her to "Suck on it". The Defendant moved down and again forced his penis into the victim's vagina before standing up and demanding money from the victim. However, before he left, he dragged the victim further into the bushes and sat on her chest, again forcing his penis into her mouth. He pushed his finger into the victim's anus before forcing his penis into her vagina for a third time.
8. It may be seen that, over the course of about an hour, the Defendant forcibly had penile/vaginal sex and penile oral sex with the victim until he ejaculated into her mouth causing her to cough or choke. He did not wear a condom throughout the attack. He eventually left, taking the victim's handbag with him containing some personal items and a small amount of cash with these items never being recovered.
9. The victim suffered extensive physical injuries including bruises and abrasions to her face and chest, a cut and swelling above her lip, swelling to her neck and bruises and scratches to many parts of her body. She also had abrasions to her vagina, indicative of recent injury. The victim was also severely harmed psychologically and could not work for weeks. She became depressed and had to be tested for sexually transmitted diseases.
10. When sentencing the Defendant, his Honour Judge Colefax SC noted that the offences fell above the mid-range and into the upper range of objective seriousness, involving an attack of some brutality over a sustained period. His Honour noted the profound impact on the victim from these grave offences.
11. As noted earlier, the Defendant was not charged with the 1989 index offences until 2013, when a DNA match was made as part of a Cold Case Review.
12. Prior to the Defendant being charged with the index offences, he committed a range of other offences including assault occasioning actual bodily harm and assault with act of indecency (in September 2009), contravention of an apprehended domestic violence order (in December 2011) and assault occasioning actual bodily harm (in February 2012).

Other Factors Under s.9(3) HRO Act

1. The Defendant has a chequered history of compliance with supervisory obligations (s.9(3)(f) HRO Act). Of particular significance in this category are offences of violence he committed within a day of being released on parole in 2012. Almost immediately, he began to drink alcohol and acted violently and antisocially with a breach report being prepared recommending revocation of parole leading to the State Parole Authority revoking parole in March 2012.
2. The Defendant has been in continuous custody since February 2012, a period of some nine years.
3. With respect to treatment and rehabilitation programs (s.9(3)(e) HRO Act), the Defendant has consistently refused to accept referral for sex offender treatment despite it being recommended on several occasions. He declined referrals to a sex offender program in May 2016, June 2016 and July 2018, maintaining his attitude that he did not need such treatment as he could not remember committing the offences.
4. The Defendant has participated in the EQUIPS addiction program in August 2018 and has also completed vocational training programs whilst in custody.
5. For the purpose of s.9(3)(c) and (d) HRO Act, a risk assessment report dated 30 June 2020 was prepared by Holly Cieplucha, Senior Psychologist with Corrective Services NSW. Ms Cieplucha concluded that if the Defendant was subject to an ISO/ESO, the mitigation of future risk may be enhanced by ongoing community supervision after his sentence has expired. This would enable monitoring of his transition to community-based responsibilities and restrict his alcohol and drug use. Ms Cieplucha outlined the Defendant's relevant psychosocial history including a very difficult childhood in which he experienced domestic violence and alcohol abuse. She stated that the Defendant had a good work ethic and a long history of employment, noting the vocational courses which he had completed in custody.
6. Ms Cieplucha stated that the Defendant continued to deny responsibility for his sexual offences and relied on a history of "blacking out" in an attempt to escape culpability for the index offences. She stated that the Defendant's lack of acknowledgement of risk did not assist as a protective factor in his case. I observe that, as recently as 15 December 2020, the Defendant informed a Community Corrections Officer that he did not commit the index offences and "couldn't remember that time in his life" (Annexure B, affidavit of Johanna Fisher, 11 January 2021).
7. Ms Cieplucha noted the Defendant's current physical illness involving cancer affecting his throat, tongue, tonsils and lymph nodes for which he was receiving radiation and chemotherapy through the Prince of Wales Hospital.
8. A risk assessment of the Defendant using the STATIC-99R assessment tool indicated that the Defendant posed an above-average risk as at March 2019. A further assessment undertaken in May 2020 placed the Defendant in the above-average risk category.
9. In combining both the STATIC-99R and STABLE-2007 assessment tools, Ms Cieplucha placed the Defendant in the above-average risk category.
10. Based on the Defendant's previous offending history and current risk factors, Ms Cieplucha identified the most likely risk scenarios for future serious offences as involving a sexual assault with the use of physical force against either a stranger or an intimate partner, being a spontaneous and opportunistic attack designed to assert power.
11. Ms Cieplucha noted that the Defendant had engaged in denial and deflection of personal responsibility specific to his past sexual offending and that, as a form of self-preservation, he has claimed to be unable to recall the details of his offending behaviour.
12. The areas of risk and possible offending scenarios gave rise to a number of recommendations by Ms Cieplucha in the event the Defendant was considered suitable for an ISO/ESO with these including scrutiny of social contacts, home visits, breath and urine analysis, referral to appropriate community-based services, movement schedules and electronic monitoring, containment of risk, including through individual risk management from a Corrective Services NSW senior psychologist and post-release support through various agencies.
13. For the purpose of s.9(3)(d1) HRO Act, a risk management report dated 13 August 2020 was prepared by Alexandra Crichton, Community Corrections Officer, addressing ways in which the Defendant might be reasonably and practically managed in the community as part of an ISO/ESO. Ms Crichton's report noted the lack of any prospective community supports in the form of family and friends, although noting the Defendant's recognition that obtaining employment would assist him to gain stability and avoid reoffending with his good work ethic also being recognised.
14. As observed earlier, the Defendant declined to seek release on parole until very recently, by which time the application under the HRO Act was already on foot. The evidence suggests that there may be an attitude within the Defendant consistent with institutionalisation. Apart from twice electing not to seek release on parole, the Defendant commented in January 2019 to an officer undertaking a case plan review that he "feels more comfortable in custody as it feels like home" and that he "denied feeling upset by not being in the community or having further opportunities".

Conclusion Concerning ISO

1. I accept the Plaintiff's submission that the greatest risk factors concerning the Defendant arise from his failure to take responsibility for his offences, showing a lack of insight into his offending behaviour, and his longstanding substance abuse issues that are linked to his disinhibited criminal behaviour.
2. The Defendant has committed offences in public spaces against a stranger and also those known to him and in domestic settings against those with whom he was in an intimate relationship. Most, if not all, of the offences were committed whilst the Defendant was affected by alcohol and/or drugs. The Defendant has been formally assessed as posing an above-average risk with the likely consequences to any potential victim of offences such as the index offences being substantial.
3. If interim orders under the HRO Act are not made, the Defendant will be released from custody on 18 February 2021, after nine years in custody, without any conditions or restrictions to operate in the interests of community protection. He has no available family or community support mechanisms. If not under some form of supervision in the community, the likelihood that the Defendant will commit further offences is heightened in the context of an intimate relationship and the broader community.
4. I have kept in mind that the Defendant will be receiving ongoing treatment in the community for cancer. There is no evidence, however, that this aspect operates to reduce the level of risk so that an ISO should not be ordered.
5. I am satisfied for these reasons that an ISO should be directed with respect to the Defendant, together with an order being made for court-appointed psychiatric or psychological experts to examine and report on the Defendant to assist the Court at the final hearing of the Summons.

Conditions of the ISO

1. As noted earlier, submissions were made with respect to a number of proposed conditions as sought by the Plaintiff. I have kept in mind the principles referred to earlier in this judgment (at [12]-[14]) in considering the imposition of conditions of the ISO.
2. With respect to the proposed conditions which were not the subject of challenge, I record my satisfaction that those conditions are appropriate in the circumstances of this case.
3. What follows addresses particular proposed conditions which were the subject of challenge by the Defendant. Condition 10
4. Condition 10 states: "The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant."
5. Objection was taken to Condition 10 upon the basis that inclusion of it would effectively criminalise minor breaches of house rules. It was submitted that any significant breach of rules or by-laws of any COSP-style accommodation would result in the Defendant being ejected at the discretion of the accommodation provider in any event so that there is no further need for a condition of this type.
6. The Defendant pointed to the decision of Hoeben CJ at CL who declined to impose a condition in these terms in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 at [52]-[53].
7. The Plaintiff pressed Condition 10 in its current form. It was submitted that the Court is entitled to expect that the Departmental Supervising Officer ("DSO"), and other officers who implement and enforce conditions, will do so with reason and balance. It was not the intention of this condition to criminalise relatively minor actions. The overriding purpose of Condition 10 is to ensure a smooth transition of the Defendant into stable accommodation and allow him to better integrate with other members of the community.
8. The question whether such a condition is appropriate depends, of course, on consideration of the circumstances of the particular case. The Defendant will be emerging from an extended period in custody and it is more than desirable that conditions seek to ensure a smooth transition into stable accommodation. Condition 10 will provide a clear structure for the Defendant's residence in COSP accommodation. The issue should be considered upon the basis that the DSO will approach compliance with conditions in a balanced and reasonable way.
9. I am satisfied that Condition 10 is appropriate in the circumstances of the Defendant for inclusion as part of the ISO.
10. I will include Condition 10 in the conditions. Condition 13
11. In light of submissions made for the Defendant, the Plaintiff's amended Condition 13 which is now sought is in the following terms: "The defendant must promptly notify a DSO of any visitor entering and remaining at his room within his approved address and must not permit any person to stay overnight at his room within his approved address without the prior approval of a DSO."
12. The Defendant does not oppose a condition expressed in these terms.
13. I am satisfied that Condition 13 should be made in the form now sought by the Plaintiff. Condition 26
14. After considering submissions for the Defendant, the Plaintiff seeks an amended Condition 26 as follows: "The defendant must not associate with any person or persons specified by a DSO in writing, or verbally, if put in writing as soon as practicable."
15. The Defendant does not oppose a condition in those terms and I am satisfied that the proposed condition is appropriate. Condition 27
16. Condition 27 states: "Without limiting condition 26, the defendant must not: a. without the prior approval of a DSO, associate with any people who he knows are consuming or under the influence of alcohol. b. associate with any people who he knows are consuming or under the influence of illegal drugs. c. without prior approval of a DSO, associate with any person held in custody."
17. The Defendant objects to Condition 27(c) upon the basis that there is no evidence to suggests that the Defendant's offending or his risk profile is linked to any association with persons in custody. Reliance was placed upon State of NSW v Richardson (Preliminary) [2020] NSWSC 1442 where Hoeben CJ at CL (at [104]) declined to include such a condition upon the basis that it was irrelevant to the risk of the Defendant in that case engaging in serious sexual offending and should not be imposed as part of his ISO.
18. The Plaintiff pressed Condition 27(c), submitting that the rationale for it is that the rehabilitation of the Defendant includes promoting prosocial relationships and discouraging associations with people who may be a negative influence on him. It was noted that the condition does not prohibit the Defendant's contact with inmates. Rather, it allows the DSO to assess persons and decide whether they are likely to assist or hamper the Defendant's rehabilitation.
19. It is necessary to keep in mind that the Defendant will be emerging from an extended period in custody so that conditions will need to operate in a manner which promote positive relationships on the part of the Defendant and guard against associations with people who may have a negative influence on him. As submitted for the Plaintiff, Condition 27(c) does not prohibit the Defendant's contact with persons in custody. Rather, it will serve to allow a process of disclosure and approval in the event that the Defendant wishes to associate with any person in custody.
20. I have kept in mind the broad definition of "associate" in the definition part of the proposed conditions, which extends to telephone and electronic communication. It may be that the Defendant's existing associates are largely persons in custody and that there is a prospect of ongoing contact by persons in custody after the Defendant's release. There is a legitimate interest in the DSO being aware of, and having an opportunity to approve, any persons in custody with whom the Defendant seeks ongoing association.
21. In my view, Condition 27(c) is appropriate and reasonable in the circumstances of the case. Conditions 33, 35-41
22. Conditions 33 and 35-41 relate to the use of electronic devices and access to the internet.
23. The Defendant did not object to Conditions 32, 34 and 42 which relate to aspects of use of electronic devices and access to the internet. Rather, it was submitted that Conditions 33 and 35-41 ought not be imposed as they are not associated with the Defendant's risk profile.
24. It was submitted that the Defendant's offending history does not involve the use of electronic means of communication, nor accessing any unlawful material electronically, nor any preparatory steps to offending using electronic means or telecommunications. Reliance was placed upon the decision of Hamill J in State of New South Wales v Lee [2018] NSWSC 473 (at [44]-[47]) where his Honour declined to impose conditions of this type upon the basis that the there was nothing in the past of the defendant in that case which demonstrated a propensity to groom his victims or to seek them by electronic means or otherwise in advance. Hamill J observed that it is necessary to tailor the conditions which are appropriate in the circumstances of the particular case.
25. It was submitted that the conditions are unnecessarily intrusive and would allow remote checking of the Defendant's device or devices without the Defendant being aware that a check was being undertaken.
26. The Defendant objected to part of the wording of Condition 35 under the umbrella of this challenge.
27. In response to the Defendant's submissions, the Plaintiff determined to merge Conditions 35 and 36 into a single condition (Condition 35) in the following terms: "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 the details of the internet connection, as directed."
28. The Plaintiff otherwise pressed the balance of the conditions objected to under this heading. The Plaintiff submitted that the Defendant had been in custody for an extended period during which advances in technology had occurred and changes in the way people communicate and transact, with further developments in this respect having taken place during the COVID-19 pandemic.
29. Whilst the Plaintiff acknowledged that the Defendant's offending history did not involve the use of electronic communications, it was submitted that the numerous ways in which people meet each other and strike up relationships has grown exponentially over the last decade and it is reasonably foreseeable that the Defendant would wish to begin relationships using electronic means. It was submitted that this makes it increasingly more difficult for a DSO and others responsible for supervising offenders to monitor the people with whom supervised offenders are in contact.
30. The Plaintiff submitted that, if the Defendant is in a relationship, these conditions allow the DSO to monitor communications between the Defendant and his partner and mitigate any risks of offending that may occur within the relationship with this being important given the Defendant's history of sexual offending within an intimate relationship.
31. The Plaintiff submitted further that a purpose for these conditions is to allow for monitoring and preventing the Defendant's access to alcohol and drugs for which he has a history of abuse and with this being a risk factor relevant to his offending history.
32. Once again, it is necessary to keep in mind that on 18 February 2021, the Defendant will be emerging from custody for the first time in nine years. I accept the Plaintiff's submission that the range of electronic communications which now exist in the community are of a different scale and magnitude to those which existed as at 2012. It is reasonable to expect that the Defendant will utilise social media to meet persons and communicate with them and that this is a context in which monitoring of risk factors is appropriate.
33. I do not consider that the absence of a history of grooming, or the use of electronic devices for offending, is a decisive consideration with respect to these proposed conditions.
34. I am satisfied that it is appropriate to fix these conditions as part of the ISO in the form in which they are sought by the Plaintiff. If the Court determines to direct an ESO at the final hearing, then it would be open to the parties to address further submissions to the presiding Judge concerning these conditions based upon what has occurred between 18 February 2021 and the final hearing. I am satisfied, however, that the conditions are appropriate and they will be included as conditions of the ISO. Condition 43
35. Condition 43 relates as well to access being given by the Defendant to any "computer, electronic and communication device" as part of a search and seizure condition. The Defendant objected to this condition upon the same basis as that which has just been addressed with respect to Conditions 33 and 35-41.
36. The Plaintiff presses Condition 43 in its present form.
37. I am satisfied that Condition 43 should be included as a condition of the ISO for reasons similar to those recently expressed with respect to Conditions 33 and 35-41. Condition 43 is necessary to provide for the physical searching of the Defendant's device to ensure compliance with other electronic communication conditions. Conditions 54 and 55
38. The Defendant objects to the words underlined in Conditions 54 and 55: "54. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO. 55. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF [New South Wales Police Force] and CSNSW [Corrective Services NSW]."
39. The Defendant accepts that the first part of each of Conditions 54 and 55 is appropriate, acknowledging that the sharing of information between healthcare practitioners can assist in a more informed approach in the treatment and rehabilitation of the Defendant.
40. However, the Defendant objects to Condition 55 insofar as it would permit the sharing of the contents of discussions and treatment administered by psychologists, psychiatrists and medical practitioners directly with the DSO, the NSWPF and CSNSW. It was submitted that the sharing of this information with these persons would disincentivise disclosure by the Defendant to his healthcare practitioners in circumstances where such frankness would encourage his rehabilitation and result in appropriate treatment from healthcare providers.
41. The Defendant submitted that there are appropriate safeguards available with respect to doctor/patient confidentiality and psychologist/patient confidentiality where there is a threat to life, health or safety of an individual or a serious threat to public health or safety. Reference was made to Clauses 10(c) and 11(1)(c) of Schedule 1 to the Health Records and Information Privacy Act 2002 and the Code of Ethics for psychologists attached to the affidavit of Ms Macdonald dated 14 January 2021.
42. The Defendant relied upon the decisions of Rothman J in New South Wales v Lidster (Preliminary) [2020] NSWSC 275 at [69]-[70] and Hamill J in State of New South Wales v Lidster (Final) [2020] NSWSC 788 at [46]-[47] where the Court considered the possible impact upon the therapeutic relationship between the patient and the relevant health professional.
43. The Defendant submitted that there are sufficient safeguards imposed upon medical and psychological practitioners so as to warrant the Court declining to impose the conditions in their present form. If the Court was minded to impose conditions with this subject matter, an amended formula was put forward with respect to Conditions 54 and 55 whereby a rider would be added to each condition to the effect of "As considered appropriate by his treatment and service providers and healthcare practitioners for the defendant's rehabilitation and risk mitigation in relation to a serious offence".
44. Subject to a modification to Condition 55 which arose during oral submissions, the Plaintiff pressed Conditions 54 and 55 in their present form. The Plaintiff emphasised that the primary object of the HRO Act was to provide for extended supervision of high risk offenders so as to ensure the safety and protection of the community. It was submitted that an important part of the DSO's role is to identify the active operation of known risk factors with one of the Defendant's risk factors being the abuse of alcohol or illicit substances with these activities being a precursor to his offending behaviour.
45. The Plaintiff submitted that the Defendant's proposed changes to Conditions 54 and 55 would not allow a health professional or police officer who has obtained intelligence to inform the DSO of the Defendant's concerning conduct. It was submitted that the Defendant's alternative wording of the Conditions was unacceptable as it would involve waiting for a situation to escalate which called for risk mitigation and that this would not provide adequate protection to the community.
46. It was submitted for the Plaintiff that Rothman J in State of New South Wales v Lidster (Preliminary) observed (at [71]) that "it is necessary that the DSO, and to a lesser extent Corrective Services generally, be aware of all the risk factors associated with the conditional liberty of the defendant". Rothman J set the conditions at the preliminary hearing although they came to be amended by Hamill J at the final hearing after his Honour had the benefit of the expert opinions of the court-appointed psychiatrists.
47. Once again, it is necessary to keep in mind that the Defendant is leaving custody for the first time in some nine years. Having determined to impose an ISO, it is necessary to keep in mind the primary protective object of the HRO Act when fixing conditions. It is also appropriate to keep in mind that what may be set as conditions of an ISO may be revisited in the event that an ESO is ordered at a final hearing.
48. The Defendant has a history of serious sex offending and will leave custody in circumstances where there is a significant lack of insight on his part and an apparent process of denial or rationalisation concerning the index offences. Although he is now 57 years old and has some health difficulties, it remains the case that he will be once again exposed to the risk of alcohol or drug abuse which were key features of his serious sexual offending.
49. I do not consider the modifications to Conditions 54 and 55 as suggested by the Defendant should be made. Those proposed amendments would add a level of uncertainty to the operation of these conditions in a manner which would not serve the primary protective object of the HRO Act.
50. It may be that the terms of these conditions can be revisited if an ESO is to be made at a final hearing, where the presiding Judge will have the benefit of reports from court-appointed experts.
51. In my view, it is appropriate to fix Condition 54 as sought by the Plaintiff as part of the ISO.
52. During submissions (T21, 4 February 2021), counsel for the Plaintiff amended Condition 55 so that it now reads: "The defendant must agree to any information arising from medical intervention or treatment being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW."
53. I am satisfied that Condition 55 should be included in these terms. Amendments to Conditions 5, 7, 26 and 46 Sought by the Defendant Based Upon Suggested Difficulties with the Defendant's Memory
54. The Defendant sought modifications of Conditions 5, 7, 26 and 46 upon the basis that the material indicated that he suffered from memory problems. Reference was made to the Defendant undergoing significant recent medical treatment for throat cancer. A Corrective Services NSW case note of Ms Crichton dated 2 December 2020 indicated that the Defendant did not know who Ms Crichton was and "could not remember recent CMU contact stating he had a bad memory" despite having been seen by her less than a month before on 11 November 2020. Reference was made to a further case note dated 4 December 2020 which stated that the Defendant "reported that his health needs present issues with respect to responsivity" and that "he indicated that his memory had been impacted due to the nature of his cancer treatment".
55. In these circumstances, it was submitted that some modification should be made to the conditions to allow greater flexibility because of his memory difficulties with reliance being placed upon the decision of Hoeben CJ at CL in State of NSW v Hunt (Final) [2020] NSWSC 1005 at [129]-[130].
56. The Plaintiff indicated a preparedness to amend Conditions 26 and 46, but pressed Conditions 5 and 7 in their original form.
57. The Plaintiff observed that there was no dispute that the Defendant had recently undertaken treatment for throat cancer, but submitted that there was a paucity of material dealing with the suggested secondary issue and that the Plaintiff is not aware of any medical evidence to substantiate the Defendant's claim about his memory. It was submitted that the Court ought treat the claims of memory difficulty with caution until there is robust medical evidence outlining the impact of cancer treatment on the Defendant's ability to remember. The Plaintiff noted that there was clear evidence of memory impairment in State of NSW v Hunt (Final) which called for the approach adopted in that case with respect to conditions.
58. The Plaintiff indicated preparedness to amend Condition 26 to read: "The defendant must not associate with any person or persons specified by a DSO in writing, or verbally, if put in writing as soon as practicable."
59. The Plaintiff was agreeable to amending Condition 46 to read: "The defendant must not significantly change his appearance without prior notification to the DSO."
60. The Defendant did not oppose Conditions 26 and 46 in their amended form.
61. It is clear from the evidence that the Defendant suffers from throat cancer, in relation to which he has been receiving treatment in custody. He will continue to receive appropriate medical treatment when he is at large in the community.
62. However, the medical evidence does not indicate that there is any deficit in the Defendant's memory relating to his condition or the treatment he is receiving for that condition. The most recent report concerning the Defendant's treatment is that of Dr Sunita Shanmuganathan dated 6 November 2020 (Annexure C, affidavit of Johanna Fisher, 11 January 2021). That report was approved by Dr Tim Brighton, consultant haematologist, who reviewed the Defendant on 16 November 2020. The report outlined the Defendant's treatment and stated in passing, that "In himself, he is clinically well". There is no mention of any memory issue concerning the Defendant.
63. The memory issue arises from uncorroborated statements made by the Defendant in a custodial setting. In my view, the circumstances of this case are to be distinguished from those in State of NSW v Hunt (Final) where there was evidence of a neuropsychological evaluation which indicated significant impairments including deficits in memory.
64. I am conscious that Conditions 5 and 7 play an important part in the monitoring of the Defendant in community. In my view, Conditions 5 and 7 (and Conditions 26 and 46 as amended by the Plaintiff) are appropriate to be included as conditions of the ISO. If there is medical evidence supporting the existence of memory deficits, then this aspect may be revisited, in particular if the Court determines to impose an ESO at the final hearing.
65. However, for the purpose of the ISO, I will include Conditions 5 and 7 and amended Conditions 26 and 46.

Conclusion

1. I am satisfied that an ISO should be made in this case, together with an order for psychiatric or psychological examination of the Defendant. I am satisfied that the conditions referred to in this judgment should be included in the ISO.
2. If the Court determines at the final hearing that an ESO should be made, it will, of course, be a matter for the Judge presiding at that hearing to determine what conditions should be fixed as part of an ESO and the duration of such an order.
3. I make the following orders: 1. an order pursuant to s.7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act") appointing two qualified psychiatrists, psychologists (or any combination of such persons) to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; 2. an order directing the Defendant to attend those examinations; 3. an order pursuant to s.10A of the Act that the Defendant be subject to an interim supervision order from 18 February 2021 for a period of 28 days; 4. an order pursuant to s.11 of the Act directing that the Defendant comply with the conditions of the interim supervision order which are set out in the Schedule to this judgment; 5. an order restricting access to the Supreme Court file in respect of this proceeding so that access will only be permitted to a non-party with the leave of a Judge of the Court, and only after the parties have had notice of the non-party's application for access and have been afforded an opportunity to be heard with respect to the application for access.

State of NSW v Davis (Preliminary) Schedule (48014, docx) 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: 10 February 2021