State of New South Wales v Jeffery Wayne Davie

Background

1. An earlier Summons, which sought a Continuing Detention Order ("CDO") for 18 months, was filed on 20 March 2015 and on 16 July 2015 Orders commenced in relation to the 2015 application that imposed a Continuing Detention Order on the defendant for a period of 12 months concluding 15 July 2016.
2. A further Summons, the originating process in this matter, was filed and interlocutory orders (or further interlocutory orders) were made by the Court on 4 May 2016.
3. The defendant is a 47-year-old male who has a 30 year history of committing sexual offences against underage males. He has served two prison sentences for sexual offences, from 1992 to 2004 and from 2005 to 2015. Since 26 May 2015 he was detained in custody under a Continuing Detention Order.
4. The most recent conviction for the defendant occurred on 27 May 2005 and was a conviction in relation to one count of sexual intercourse with a person under the age of 10 years; one count of commit act of indecency with victim under the age of 10 years; and one count of indecent assault where victim is under the age of 10 years. The foregoing three offences are the index offences for this Order.
5. On 21 September 2006, the offender was convicted of the offences and sentenced to 9 years and six months imprisonment, with a non-parole period of six years. The offender denied the index offences and continues to deny them. Further the offender has refused to participate in intensive sex offender programmes while in custody.
6. The offender was born in Western Australia; raised on the Central Coast of New South Wales; educated until midway through Year 11; and, in his education, achieved "below average" results. His family circumstances are that his father worked for Corrective Services and his mother did clerical work. He has an older brother. His family is supportive of him. According to the reports of Dr Walker, Dr O'Dea and Dr Ellis, the defendant meets the psychiatric diagnostic criteria for paedophilia.
7. Notwithstanding the defendant's eligibility for parole, parole was refused on each occasion that it was sought, predominantly on the basis that the defendant was assessed as a high risk untreated sexual offender.

Jurisdictional Issues

1. There are a number of jurisdictional preconditions to the making of any orders under the Act. Those issues involve the Court being satisfied that the defendant is a "detained sex offender" within the meaning of the Act and, in relation to the application for an Extended Supervision Order ("ESO") that the defendant is a "supervised sex offender", within the meaning ascribed to that term in the Act.
2. Regardless of which Order is made, the Court must be satisfied that the defendant is a "high risk sex offender", being a test that requires the defendant to have a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision: s 5B(2) of the Act. Further, if the Court is satisfied that adequate supervision will not be provided by an ESO, the Court is able to make an order relating to a CDO: s 5D(1) of the Act.
3. Once the Court determines that one or other of a CDO or ESO is appropriate (or both) what is the appropriate duration of any such order and what, in the case of an ESO, are the appropriate conditions?

Statutory Framework

1. The objects of the Act are set out in s 3 of the Act and, expressly, the primary object is to "provide for the extended supervision and continuing detention of high risk sex offenders … so as to ensure the safety and protection of the community". Other objects include "to encourage high risk sex offenders … to undertake rehabilitation" and, as noted in a number of judgments of the Court, including judgments of the Court of Appeal, the fundamental objective of the legislation is the protection of the community, rendering the Act protective, not punitive.
2. Nevertheless, the effect of the Act is draconian. It permits the Court to make orders significantly restricting the liberty of persons, in circumstances where such a person is no longer serving a sentence imposed for the commission of a crime. The Act allows the State to apply to the Court for an ESO (s 5H of the Act) or a CDO (s 13A of the Act) that has the effect of extending the period of control over a high risk offender beyond the term of the sentence of imprisonment imposed in consequence of the conviction for an offence.
3. The provisions relating to sex offenders govern a person "over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence": s 4 of the Act. By s 5I of the Act, an ESO may be made only in respect of a sex offender who is "a supervised sex offender".
4. A supervised sex offender is one who, when the application for the order is made, is in custody or under supervision … for a serious sex offence; … for an offence of a sexual nature; … or for another offence which is being served concurrently or consecutively with one or other of the previously prescribed types of offence: s 5I(2) of the Act.
5. As earlier stated, s 13B of the Act requires that, in order to make a CDO, the high-risk sex offender must be a "detained sex offender", who is "in custody in a correctional centre", serving a sentence of imprisonment by way of full-time detention for one or other of the earlier prescribed kinds of offences or an offender of the same type bound by an ESO.
6. The Act defines serious sex offence and offence of a sexual nature in s 5. A serious sex offence is defined by reference to particular provisions of the Crimes Act 1900 (or its interstate equivalent) and includes an offence against a child victim punishable by imprisonment for seven years or more, and, in the case of an adult victim, punishable by imprisonment for seven years or more and committed in circumstances of aggravation.
7. An offence of a sexual nature, as defined by the Act, is also defined by reference to the Crimes Act 1900 and, in particular, by reference to a number of offences under various provisions of the Crimes Act, of the Child Protection (Offenders Registration) Act 2000, of the Summary Offences Act 1988 and of the Child Protection (Offenders Prohibition Orders) Act 2004 (or their interstate or international equivalents).
8. An application for a CDO or an ESO may not be made until the last six months of the offender's custody and must issue before the conclusion of the custody. As a consequence, the State is under a relatively tight timeframe in which to provide the supporting documentation required by the Act.
9. Section 17 of the Act allows the Court to determine an application by making an ESO, making a CDO or dismissing the application. The terms of s 17(1) of the Act are as follows: "17 Determination of application for continuing detention order (1) The Supreme Court may determine an application under this Part for a continuing detention order: (a) by making an extended supervision order, or (b) by making a continuing detention order, or (c) by dismissing the application."
10. The Crown submits that the Court exercises a discretion by virtue of the provisions of s 5C of the Act. In my view, although it may make little difference, s 5C of the Act is facultative or permissive. It provides the Court with the jurisdiction to make the orders under the Act in circumstances where the offender is a high risk sex offender.
11. Any discretion under the Act is the discretion reposed in the Court by s 17 of the Act to determine an application (assuming it be an application under the relevant Part of the Act) by, as earlier stated, making an ESO; making a CDO; or by dismissing the application. In order to issue a CDO, the Court must be satisfied that an ESO will not provide adequate supervision for the defendant: s 5D(1) of the Act. That latter task is evaluative.
12. At one stage there was some difference of view, within the Court, as to the approach to determining whether a person is a high risk violent offender (or, relevantly, sex offender). It has been made clear that the meaning of that term does not include the serious consequences for the defendant, of the defendant being detained beyond the period of his sentence.
13. Rather, the proper approach is to give the words of the relevant provision their everyday meaning in the context of the provision in which they appear: see Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [58]. The construction of the foregoing term is intertwined with the meaning of "unacceptable risk", which is not defined in the legislation.
14. In State of New South Wales v Banks [2016] NSWSC 926, I considered the "controversy", then without reference to the judgement of the Court of Appeal in Lynn, and I noted: "[18] The construction of the legislation and, in particular, the term 'unacceptable risk' is a little controversial. The term 'unacceptable risk' is not defined in the legislation and the controversy stems from a difference of opinion between some of the members of the Court as to how to construe the term. [19] The process of statutory construction is no longer one of controversy. It requires the words of a statute to be given a meaning that the legislature is taken to have intended them to have. Ordinarily, the meaning given in that process will correspond with a grammatical meaning of the provision, but not always. [20] The meaning given to a statutory provision must include the context of the phrase or word, the consequences of a grammatical meaning being given, the objects of the statute as a whole and the achievement of harmonious goals by the legislature: Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355 at [70] and [78] (per McHugh, Gummow, Kirby and Hayne JJ). [21] The controversy relates to what seems to be a difference as to whether the term 'unacceptable risk' is given its 'everyday meaning in the context of the provision' or involves a 'balancing exercise' in which one factors the effect of an order on the offender and balances that with the likelihood of committing a further serious offence and the gravity of such an offence that may be committed. [22] In practical terms, the difference may not be substantial. The difference is discussed in the judgment of Hoeben CJ at CL in Attorney General for the State of New South Wales v McGuire [2015] NSWSC 152 at [41]-[43]. [23] In my view, and with respect to the judges involved in the 'controversy', the issue is resolved by a construction of the Act as a whole. The definition of 'unacceptable risk' ought, in accordance with the principles set out above and derived from the judgment of the High Court in Project Blue Sky, be given its meaning in the context of the Act and in order to achieve harmonious goals. As a consequence, the term 'unacceptable risk' is given its everyday meaning in that context. [24] However, when the Court comes to construe the provisions of either s 9 of the Act or s 17 of the Act, by each of which the Court may determine an application either by making the relevant order (or in the case of an application for continuing detention, an ESO) or may dismiss the application. [25] It is at the point of the exercise of the jurisdiction conferred by s 9 of the Act or by s 17 of the Act that the balancing exercise in which one considers the effect of such an order on the offender, the probability of an offence being committed and the gravity of any likely offences. [26] Each of s 9 of the Act and s 17 of the Act requires the Court to have regard to any matter the Court considers relevant. As a consequence, the achievement of harmonious goals is better effected by not considering the balancing exercise at the time of determining whether there is an 'unacceptable risk', but, rather, at the time at which the jurisdiction to issue the orders considers as to the making of an order of any kind."
15. In my respectful view, the foregoing analysis remains valid and is not inconsistent with the principles to which the majority in Lynn referred.
16. The Court has also considered the issues associated with the exercise of its jurisdiction under s 5D and s 17 of the Act, which is not tied to the determination of unacceptable risk. The state of satisfaction in s 5D of the Act is not pitched at the level of "a high degree of probability".
17. Rather, the Court is required to determine whether the level of supervision provided by the ESO that might otherwise be ordered will not provide adequate supervision, bearing in mind the primary and other purposes of the Act: State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280; Anderson v State of New South Wales [2016] NSWCA 86.

Consideration of Defendant's Circumstances

1. Dr Richard Parker, Senior Psychologist at the Serious Offenders Assessment Unit, Corrective Services, provided an initial Risk Assessment Report of 16 February 2016. This report addressed a number of matters including the psychological support that had been provided to the defendant. A subsequent report (15 April 2016) expanded on the views and, to the extent that it is different, replaced the earlier report. It relies upon a previous Risk Assessment Report.
2. The defendant began offending in 1984 at the age of 16. He was acting as a voluntary guide and helper at a museum, befriending a young boy and ultimately engaged in a count of indecent assault. The boy was six years old.
3. In 1992, when 23 years of age, the defendant was convicted on three counts of homosexual intercourse with a child without consent. Without describing the offences they included fellatio, masturbation of the child and anal intercourse.
4. The offences were planned and involved a breach of trust in circumstances where the defendant was babysitting the victim. There is a suggestion, also, that the defendant recorded the events on camera. In the course of the sentencing remarks, the sentencing judge (before the availability of an ESO) remarked as to the need for a very long period of the strictest of supervision and counselling.
5. In terms of the risk associated with the defendant's unsupervised release into the community, it should be noted that the sentence for the 1992 offences involved the sentencing judge taking into account 29 further offences, two of which involved the possession of prohibited items but all of the others related to indecent dealing with young boys, which dealing was to similar effect as the conduct in the charges for which he was sentenced.
6. For the 1992 offences, the defendant was sentenced to a non-parole period of eight years' imprisonment as part of a head sentence of 12 years. He was released on parole on 4 April 2003, some 16 months before the expiry of the head sentence.
7. The index offences, committed on 25 May 2005 (approximately 2 years after his release for the earlier offences) was on a victim who, at the time, was nine years and three months old. The defendant was then aged 36. The defendant was an SES volunteer and the victim had attended training with the victim's mother, who was also a volunteer.
8. The 2005 offences also involved fellatio, touching and indecent exposure. Again, the victim in the 2005 offences was a person with whom the defendant had some interaction over a period of time. The offences were opportunistic and the defendant was sentenced to a non-parole period of six years' imprisonment as part of a head sentence of nine years and six months that expired on 26 May 2015.
9. The defendant denied the offences in question (and continues to deny them), notwithstanding DNA evidence matching the defendant taken from the victim's penis. In the 19 January 2014 report of Meagan Donaldson, Senior Psychologist in the Sex and Violent Offender Therapeutic Programs Section of Corrective Services, the defendant's sexual offending was described as "chronic".
10. The defendant was refused parole and his Pre-Release Report (30 July 2014) commented on his attitude (to his offence, the victim of the offence and the judicial system in general) as being of considerable concern.
11. There are other instances of misbehaviour about which, in one instance, a complaint was made, but which was not the subject of charge. While the defendant misbehaved in his earlier incarceration period, he did not misbehave during the last period of incarceration, including the period during which he was incarcerated pursuant to a CDO.
12. The defendant's commitment to Sex Offender Treatment Programs has been disappointing and unsatisfactory. The defendant has not completed the CUBIT program (Custody-Based Intensive Treatment), but did complete the PREP program, which, as the name suggests, is intended as a preparatory program to increase offenders' motivation and readiness to participate in Sex Offender Treatment Programs. This program is not a treatment program.
13. Until very recently, it is fair to say that the defendant displayed little insight and even less cooperation with methods that may be utilised in order to reduce the risk associated with the release of the defendant into the community.
14. Nevertheless, of recent time the defendant has altered his previously stated attitude to anti-libidinal medication. Previously, the defendant would not consider consuming such medication (see the report of Dr O'Dea, 22 June 2016) and, at a later time, that he would consider it as an option after a full medical examination (report of Dr Ellis, 19 June 2016).
15. Notwithstanding that earlier stated attitude (recorded as recently as 10 March 2016), the defendant is now willing to undertake such a programme. At least initially, that willingness seems to have been based upon the need to undertake the programme in order to obtain release, rather than any insight into the need to curb his conduct.
16. Indeed, the defendant reported to psychiatrists that he saw no need for such a program, but was prepared to go with it if it were deemed appropriate.
17. The Court has been provided with assessments, both static and dynamic, involving the risk factors associated with the release of Mr Davie. There is no doubt that Mr Davie is a high risk sex offender and the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if released, unsupervised, into the community.
18. Further, the Court is satisfied that, in the absence of anti-libidinal treatment that is effective, supervision that could be undertaken in the course of an ESO, would be insufficient to sufficiently ameliorate the risk associated with his release into the community. Supervision under an ESO, including electronic supervision, is not perfect. It imposes a regime and supervises general compliance with that regime, but it is insufficiently precise to adequately supervise Mr Davie who is a high risk sex offender with a very high risk (unmedicated) of reoffending.
19. Nevertheless, on the expert evidence that is before the Court, the Court was and is satisfied that, with the appropriate level of anti-libidinal medication, an ESO would be adequate supervision. As a consequence the Court issued its short reasons on 22 July 2016. That, ex tempore judgment was in the following relevant terms: "[1] The issue before the Court between the parties is an issue as to the duration of an extended supervision order which will apply from the defendant's release after one month from today, which in effect means it will be an extended supervision order which applies from 22 August 2016. The defendant submits that the extended supervision order should be for no more than three years and the State seeks an order for five years. Each of the counsel has put strong and well-constructed submissions relating to why three years as against five years or five years as against three years ought be the order of the Court. [2] There is much to be said for the Crown's proposition that the expert evidence suggests that there needs to be therapeutic psychiatric assistance in the community for a period of three years before any marked change could be available. I have taken that into account in determining what it is I wish to do or what the Court will issue. [3] The first consideration must be the protection of the community. That's what the whole of the legislation is about. The second is to assist or encourage the rehabilitation of the defendant. Ultimately, the community's protection is best served by the rehabilitation of the defendant. [4] The defendant submits that the three years should start now in effect, or at least at the time of his release, because the defendant is receiving psychiatric treatment in custody and will receive it at the COSP. That submission is, of course, correct but the kind of psychiatric treatment he would receive and does receive in prison is very different from that which he would receive in the community. Apart from anything else he will have a treating psychiatrist available to him rather than Corrective Services personnel which, of itself, is an extremely important element, in my view, in the determination of the issues that the defendant faces. [5] The second aspect raised and to which I wish to pay attention, even in these short reasons, is the aspect associated with the time that the defendant served on parole. That time was spent on parole without breach and without offence and that gives the Court some significant hope that an ESO once made can be the subject of adherence. I take that into account to a large degree in determining what I should do in relation to this defendant. [6] Lastly, the matter I wish to deal with in this aspect is the attitude and demeanour of the defendant in these proceedings. It has to be said, as I remarked earlier, that the defendant must be congratulated for his attitude to the application by the State for a continuing detention order and, indeed, for the conditions they seek to impose in the ESO. He also should be congratulated, notwithstanding what the State says about a lack of insight, as to his willingness to undertake the anti-libidinal treatment which on all of the expert evidence is a necessary requirement in order for him to be treated successfully. [7] The evidence before the Court is essentially that the defendant needs three years of therapeutic treatment. I am not now talking about the anti-libidinal medication, but rather the psychiatric treatment. In any event, the expert evidence is that he needs three years of that treatment for any marked alteration to be successful. It seems to me that the period during what is more or less a form of house arrest in a COSP can't be counted in terms of his adjustment to the community and the capacity to determine whether there has been a marked alteration in his circumstances. Nevertheless, even if it would take three years, as the shortest possible time, for that alteration in his circumstances to be effective, it would seem to me the psychiatrists and the State would be aware after two and a half years, for example, as to whether or not an alteration was likely or another order would be likely. The difficulty with that course is that adds up to three years and no doubt is a factor in why it is the defendant seeks a three year term."
20. The therapeutic period for psychiatric assistance should commence on release. However, the anti-libidinal medication needs to be effective before release, because without it, an ESO, or the conditions imposed in such ESO, would not, at this early stage, sufficiently ameliorate the risk. Therefore, a CDO of one month, which, on the expert evidence, is the further period required before the medication is effective, shall issue.
21. Thereafter, the defendant will be bound by an ESO. The conditions are agreed. The duration of the ESO will be three years plus the period necessary for investigation and assessment, which will be "concurrent" with the period necessary for the making of any further application by the State.
22. For the foregoing reasons the Orders made on 22 July 2016 issued and those orders were in the following terms: "(1) Leave is granted to the plaintiff to file an Amended Summons; (2) Pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (the Act) the defendant is subject to a Continuing Detention Order for a period of one month that commences on 22 July 2016 and expires at midnight on 21 August 2016; (3) Pursuant to s 20(1) of the Act, the Court issues a warrant for the committal of the defendant to a correctional centre for the period specified in Order 2 above; (4) Pursuant to s 9(1)(a) of the Act, the defendant is subject to an Extended Supervision Order for a period of three years and nine months that commences upon the day that the Continuing Detention Order made in Order 2 above expires; (5) Pursuant to s 11 of the Act, the defendant is directed to comply with the conditions set out in the Amended Schedule to the Amended Summons filed by the plaintiff and attached to these Orders for the duration of the Extended Supervision Order made in Order 4 above."

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: 16 May 2017