On 25 May 2020 the State of New South Wales filed a summons seeking that an extended supervision order (ESO) be made in respect of the defendant pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act). The summons also sought that an interim supervision order (ISO) be put in place for 28 days.
On 9 June 2020 Hoeben CJ at CL ordered that the defendant be subject to an ISO for a period of 28 days, and made the other orders pursuant to s 7 of the CHRO Act which are required to be made where the Court is of the opinion that the evidence put forward would, if proved at a final hearing, justify the making of an ESO: State of New South Wales v Davis (Preliminary) [2020] NSWSC 754. This judgment assumes that the reader is familiar with what is contained in Hoeben CJ at CL's judgment of 18 June 2020, which provided his Honour's reasons for the making of the orders.
Subsequently, a hearing date in respect of the application for the ESO was appointed.
The defendant was serving a sentence for contravening a child protection prohibition order and possessing child abuse material at the time the summons was filed. That sentence expired on 19 June 2020.
In the meantime, the defendant had been charged with a further contravention of the child protection prohibition order under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) that had been put in place on 31 October 2019, following the making of an interim order on 29 May 2019. As a result of that offence, the defendant was sentenced on 22 June 2020 to a term of imprisonment of 18 months with a non-parole period expiring on 13 April 2021. The effect of that custodial sentence was to suspend the ISO made by Hoeben CJ at CL.
In the light of that sentence, the proceedings came before Justice Bellew for directions on 1 February 2021, where a further hearing date was appointed on 25 August 2021.
On 13 April 2021 the defendant was released to parole. The effect of that release was that the ISO commenced to run. It was, as I have said, for a period of 28 days and, accordingly, expired on the 11th of May 2021.
Corrective Services New South Wales did not inform the Crown Solicitor that the defendant had been released to parole on the expiry of his non-parole period until 26 May 2021. By that stage the ISO had expired. Accordingly the State filed a notice of motion on 28 May 2021 which sought an order pursuant to ss 10A and 10C of the CHRO Act that the ISO made by Hoeben CJ at CL be renewed for a further period of 28 days, to be reinstated immediately, and an order under s 11 of the Act directing that the defendant comply with the conditions as set out in Annexure "A" to Hoeben CJ at CL's judgment. The State also sought an order vacating the final hearing of 25 August 2021, and re-listing the matter on a date between 14 June and 12 July 2021.
The defendant opposes the making of a further ISO. The principal basis for the opposition is that there is not sufficient evidence concerning the defendant's present situation to justify the making of such an order. The defendant also points to the short period of time between today and when a final hearing will take place, and that the defendant has not been shown to have breached in any serious way either the conditions of the ISO (in the first 28 days) or the conditions of parole or a forensic community treatment order (FCTO) that was put in place in August 2020 since his release from custody six weeks ago.
At the outset of the hearing today I informed the parties that any re-scheduled hearing date for the final hearing would take place on either 22, 23 or 24 June. The result is that the period of time for which the present ISO is sought is a period of 3 weeks or a little more. The defendant says that this is a short period of time, and that the defendant is under parole conditions and conditions under the FCTO, such that any risk is sufficiently mitigated during that period.
Whilst it is true that Hoeben CJ at CL's judgment considered matters in June 2020, his Honour's conclusions were based on reports that he had at the time which dealt with the risk of the defendant committing further serious offences. Additionally, his Honour was aware that, at least at the time of his judgment, the defendant had been charged with a similar offence to the ones which had put him in custody in October 2019, and which were the index offences for the purpose of the filing of the summons.
In particular, his Honour said at [83]-[84]:
[83] Keeping in mind the limited enquiry raised by s 7(4) of the Act (and s 10A, in considering the application for an ISO), the matters in the following paragraphs take into account the s 9(3) factors, which are relevant not only to the discretion to grant an ISO, but also to whether the Court would ultimately be satisfied that the defendant poses an unacceptable risk of committing a further serious offence if not kept under supervision under an ESO and that a ESO should be made.
(1) The defendant has a significant history of serious sex offences, which appear to be opportunistic, impulsive and associated with alcohol abuse. Each of the previous sexual assaults involved attacks upon strangers. They were accompanied by violence or threats of violence in addition to the sexual assault. The Kemps Creek sexual assaults occurred over several hours, the defendant having broken in to the victim's home and threatened to kill her. The Dunheved High School sexual assault occurred at 7am in the morning at the victim's place of work. The victim was threatened with a knife. The Darlinghurst sexual assault occurred more than eight years after the previous offences, while the defendant was on parole. The defendant forced the victim from the street and performed forcible penile-vaginal sexual intercourse. Again, the sexual assault was accompanied by a threat to kill the victim and the sexual assault was further aggravated by an assault occasioning actual bodily harm. It should also be noted that the defendant has not participated in any intensive treatment program in relation to his sexual offending. Due to barriers presented by his mental stability and cognitive capacity, the view has been taken that the defendant would be unlikely to benefit from CUBIT.
(2) The defendant has displayed a repeated pattern of ceasing to take medication for his schizophrenia when not subject to supervision as a result of limited insight into his mental health leading Ms Pateman to the view that he is unlikely to continue complying with his prescribed medication without supervision. Medication non-compliance and/or the use of alcohol clearly raise the defendant's risk of opportunistic and/or impulsive sexual violence considerably in view of his history of offending in such circumstances. There is also an association between the periods in which the defendant ceased to take his psychiatric medication and his use of alcohol and other substances. Although he has been diagnosed on multiple occasions with Alcohol and Cannabis Use Dependence Disorder, he has shown little insight into the impact of his alcohol use of these behaviours, on his offending and impulsive behaviour. An ESO is capable of regulating the defendant's conduct in ways that a CTO is not (for example, by prohibiting the use of substances).
(3) The defendant has been assessed as having a well above average risk of future sexual offending.
(4) The defendant's 2019 offending suggests either a possible deviant sexual interest in prepubescent children, increased disinhibition leading to indiscriminate victim selection, or a perception of children as "easier and more vulnerable victims to meet his sexual needs". In any of those cases, the unacceptable nature of the risk posed to the community is exacerbated. The defendant's lack of insight into that behaviour impedes his ability to develop appropriate risk management strategies himself.
(5) The defendant has a record of poor compliance with his reporting obligations under the CPOR Act and with supervision whilst on parole, though his record of compliance with his previous ESO was good. In addition, the defendant has sought to minimise the order under the CPPO Act, has proffered unlikely excuses for his possession of child abuse material, items used by children, and physical and digital photographs of children. The current CPPO would not appear adequate to address the defendant's identified risk factors, including unlike an ESO, breach of a CPPO is primarily policed after the fact, whereas an ESO involves proactive case management.
[84] If the defendant completes his current sentence in June 2020 without the imposition of a further order and absent the imposition of a further CTO, he would be subject to the prohibitions in the CPPO. However, he has already been convicted in relation to breaches of his CPPO, has been charged with a further breach (which is alleged to have taken place while he was living in supported accommodation at the Campbelltown ISC) and would lack support in relation to compliance with his medication, finding stable housing and remaining abstinent from alcohol and drugs. There is little evidence of his capacity to function in the community, remain compliant with his medication and remain abstinent from alcohol and drug use without support. The message from clinicians appears to be consistently that the defendant requires ongoing, relatively intensive, psychological (and at times also psychiatric) support if he is to manage his risk factors in relation to sexual offending.
Since that judgment, expert reports have been filed with the Court pursuant to orders made by his Honour. Those reports are from Dr Richard Furst of 10 July 2020 and Dr Anthony Samuels of 29 June 2020. Subsequently, but before the defendant was released from custody for the most recent offence, two further reports were filed by those experts updating matters to January and February 2021.
Dr Furst said in his report of July 2020 that the defendant suffered from schizophrenia, alcohol/substance abuse order and from an unspecified paraphilic disorder. Dr Furst said that the defendant lacked insight into his schizophrenic illness, his treatment needs and his apparent sexual deviancy. He said that the defendant had a high historical loading of risk factors. Historical risk factors are those that are regarded as static, that is, they will not change over time, with the exception that there is a slight reduction in risk as the defendant gets older.
Dr Furst assessed the defendant as being well above the average risk of committing a further serious offence compared to the average male sex offender. He said that his clinical profile and risk issues fitted very well with the comprehensive ESO model of supervision and management, and that an ESO was indicated to provide clinical and legal oversight and guidance to the community mental health service that ends up managing the defendant. Dr Furst said it was an unsatisfactory position to rely on a CTO alone.
Dr Furst said in his updated report of February 2021 that his clinical impressions, opinions and recommendations had not changed in a material way from his earlier report.
The opinion of Dr Samuels was very largely consistent with the views of Dr Furst. He considered that the defendant was at a high risk of sexual offending, and thought that his overall risk had increased since Dr Samuels had first seen the defendant in 2008. He noted that the defendant in 2020 appeared to have additional paedophilic interests, which added to his level of risk.
Dr Samuels noted that the defendant was currently under a CTO and also Child Protection Prohibition Order, and he saw them as complementing the enforcement conditions of the ESO. In his updating report of January 2021 he said that he continued to hold similar views to those expressed in his earlier report.
The defendant is under a number of parole conditions and under some supervision under the CTO. The significant differences between what is contained in the ISO conditions imposed by Hoeben CJ at CL and the parole conditions are that in the parole conditions there are no schedules of activities to be provided by the defendant, there is no provision for search and seizure to enforce the conditions of the ISO, and there are no conditions concerning the defendant's use of the internet and electronic devices.
Counsel for the defendant correctly points out that both Dr Samuels and Dr Furst were giving consideration to the need for an ESO and not to the imposition of a further ISO for a limited period. Nor, as counsel pointed out, was Dr Furst or Dr Samuels considering the fact that the defendant was under parole conditions (because at the time of their reports the defendant was not on parole), but they were only considering whether the conditions under an ESO would complement the CTO arrangement.
I do not think that this detracts from the force of their opinions. Their view, as was Hoeben CJ at CL's view, is that the defendant is at a high risk of committing a further serious offence. Since they both considered that an ESO should be in place for five years, it must be inferred that they also held the view that an ISO is necessary in the interim.
I do not consider that the parole conditions and CTO arrangement are sufficient to mitigate the risk that the defendant poses, even for the relatively short period of time that might be involved before an ESO is made, if that eventuates after a final hearing. The position may of course be longer than the three week period when allowance is made for a judgment to be prepared after the hearing in circumstances where a further 28 day period is available under the CHRO Act.
I do not consider that the fact that the defendant has complied with various conditions for the last six weeks since his release mitigates the serious risk that Hoeben CJ at CL and the experts identified. For those reasons I consider, in terms of the requirements the CHRO Act, that if the present material before the Court was proved at a final hearing, that would justify the making of an ESO.
It is necessary to vacate the hearing date of 25 August 2021. Under s 10C(2) of the CHRO Act, the total period of supervision under ISOs cannot exceed three months. A hearing date of 25 August would result in the expiry of the ISO prior to that date. I note that the parties will confer to agree on one of the hearing dates offered.
I make orders in terms of paragraphs 1 and 2 of the State's notice of motion filed 28 May 2021 in the following terms:
An order pursuant to ss 10A and 10C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the interim supervision order made by his Honour Justice Hoeben CJ at CL on 18 June 2020 (and which commenced on 13 April 2021 for a period of 28 days, which expired on 11 May 2021) is renewed for a further period of 28 days, to be re-instated immediately.
An order pursuant to s 11 of the Act, directing that the defendant for the period of the interim supervision order, comply with the conditions set out in Annexure "A" to the judgment of his Honour Justice Hoeben, CJ at CL in State of New South Wales v Davis (Preliminary) [2020] NSWSC 754.
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Decision last updated: 03 June 2021