State of New South Wales v Jeffery Wayne Davie

Consideration of Defendant's Circumstances

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.
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.
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.
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.
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.
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.
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.
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.
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".
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.
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.
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.
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.
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).
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.
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.
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.
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.
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."
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.
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.
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."

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Judgment (7 paragraphs)

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Cases Cited (9)

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