State of New South Wales v Davis (Final)

1. [1]

   By way of an amended summons filed on 28 April 2021, the plaintiff, the State of New South Wales (“the State”) brings proceedings against the defendant, Glenn Davis, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. [2]

   There was a preliminary hearing before Johnson J on 4 February 2021.

3. [3]

   As set out in the judgment of 10 February 2021 [1] , Johnson J made orders pursuant to s 7(4) of the Act appointing two qualified psychiatrists or psychologists to conduct separate examinations of the defendant and furnish reports to the Court, as well as an order directing the defendant to attend those examinations. His Honour also made an interim supervision order (“ISO”) on the conditions set out in the judgment.

4. [4]

   On the preliminary hearing, the defendant did not dispute that he should be subject to an ISO or that he should be psychiatrically examined. He merely raised issues relating to some of the conditions proposed by the State.

5. [5]

   On 11 March 2021 the defendant was examined by Professor Emeritus Susan Hayes. Professor Hayes provided a report dated 25 March 2021.

6. [6]

   On 12 March 2021 the defendant was examined by Dr Kerri Eagle, forensic psychiatrist. Dr Eagle provided a report dated 26 March 2021.

7. [7]

   The final hearing came on before me on 28 April 2021. Mr Mykkeltvedt appeared for the State and Mr Baldeo appeared for the defendant. Both parties provided helpful written and oral submissions.

8. [8]

   The defendant did not dispute that he should be subject to an extended supervision order (“ESO”) but emphasised that the imposition of an ESO requires independent satisfaction by the Court. The focus of the hearing was on the conditions of the ESO.

Legislation

1. [9]

   As set out in s 3 of the Act, the primary object of the Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders, so as to ensure the safety and the protection of the community. Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. In making any orders under the Act, I would have regard to the objects of the Act.

2. [10]

   Section 5B of the Act provides the circumstances in which the Court may make an ESO:

3. [11]

   As the defendant did not dispute that he should be subject to an ESO, it must be that he accepts that the Court would be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious offence if not kept under supervision under the ESO. However, even though the defendant did not dispute this, it is necessary that the Court be satisfied independently that he poses an unacceptable risk.

4. [12]

   Being satisfied to a high degree of probability means something beyond more probable than not. The existence of the risk, that is, the likelihood of the defendant committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof although not to the criminal standard of beyond reasonable doubt. [2]

5. [13]

   The meaning of “unacceptable risk” was considered in Lynn v State of New South Wales: [3]

6. [14]

   Importantly, the impact that an ESO may have on the defendant’s liberty is not a relevant consideration for the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision, but the Court may take that factor into account in determining whether to exercise its discretion pursuant to s 9 of the Act. [4]

7. [15]

   That is, whilst an ESO may not be made unless the Court is satisfied that the defendant poses an unacceptable risk as referred to in s 5B(d) of the Act, even if such a finding is made, the Court still has a discretion in the making of an ESO.

8. [16]

   In determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Court. [5]

9. [17]

   Further, in determining whether or not to make an ESO, I must have regard to the factors as set out in s 9(3) of the Act.

The evidence

1. [18]

   On the final hearing the State relied on the expert medical reports of Professor Hayes and Dr Eagle as well as the following affidavits:

   1. (1)

      Affidavit of Johanna Fisher affirmed 27 October 2020;

   2. (2)

      Affidavit of Johanna Fisher affirmed 11 January 2021;

   3. (3)

      Affidavit of Kelli Grabham affirmed 31 March 2021;

   4. (4)

      Affidavit of Johanna Fisher affirmed 1 April 2021;

   5. (5)

      Affidavit of Angela Rybak affirmed 1 April 2021; and

   6. (6)

      Affidavit of Johanna Fisher affirmed 21 April 2021.

2. [19]

   The defendant relied on an affidavit of Michelle Macdonald affirmed 14 January 2021. Both Professor Hayes and Dr Eagle adduced further oral evidence and were cross-examined.

Threshold requirements

1. [20]

   The original summons was filed on 28 October 2020. At that time the defendant was serving a sentence in respect of 3 offences under the then s 61D(1) of the Crimes Act 1900 (NSW) (having sexual intercourse without consent knowing the victim was not consenting) and an offence of stealing from the person under s 94 of the Crimes Act.

2. [21]

   The defendant was sentenced to an aggregate term of imprisonment commencing on 19 August 2013 of 7 years and 6 months with a non-parole period of 5 years and 7 months. The defendant did not apply for parole. He remained in custody until the end of his entire sentence and he was released on 18 February 2021.

3. [22]

   The defendant is a “supervised offender” within the meaning of s 5I of the Act. An application has been made in accordance with s 5I.

4. [23]

   In the circumstances the threshold requirements set out in s 5B(a)-(c) are satisfied.

5. [24]

   Further, for the reasons set out in this judgment I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order and s 5B(d) of the Act is also satisfied.

6. [25]

   It is not necessary that I merely recite all of the evidence presented on the final hearing. I have considered all of the evidence and had regard to the factors set out in s 9(3) of the Act.

7. [26]

   In this judgment I will focus on the evidence critical to my satisfaction that the defendant poses an unacceptable risk within the meaning of s 5B(d) and relevant to the disputed conditions.

The defendant’s personal circumstances

1. [27]

   The defendant is currently 57 years old and identifies as Indigenous. He comes from a background of childhood trauma, including domestic violence and exposure to alcohol abuse. His father committed suicide when the defendant was in his early twenties. He no longer has any contact with other members of his family and prior to his release had no ties in the community.

2. [28]

   He suffered significant injuries in a car accident in 1989 and whilst in prison was diagnosed with cancer and underwent extensive treatment. His cancer is in remission.

3. [29]

   He is currently residing at Nunyara COSP (Community Offender Support Program) and has been residing there since his release. He is unemployed and receiving a Jobseeker allowance from Centrelink.

The index offences

1. [30]

   The index offences were committed in 1989. However, the defendant was not charged and convicted until he was identified through DNA evidence and other investigations in 2013.

2. [31]

   The offending was of a very serious nature. The victim was a stranger to the defendant. As the victim was walking through Mount Druitt after leaving the Rooty Hill RSL, she was grabbed from behind by the defendant and dragged into nearby bushes. The defendant forcibly removed most of her clothing and had penile vaginal sexual intercourse without her consent. The victim struggled and made every effort to resist, including using a pen knife to injure the defendant. However, the defendant covered her mouth and threatened to kill her. Thereafter he sat on the victim’s chest and forced his penis into the victim’s mouth. He moved up and down in a violent and aggressive way whilst also demanding money from her. He stole her handbag.

3. [32]

   The victim was detained by the defendant for over an hour. He forced his penis into her mouth on a number of occasions and put his finger into her anus. He had forcible penile vaginal sex.

4. [33]

   The victim suffered extensive physical injuries. She also developed a severe psychological condition. The defendant remained at large (as far as the victim was concerned) until he was charged on 30 July 2013. He pleaded guilty to some of the charges although he continued to deny his guilt claiming memory difficulties due to intoxication from drugs and alcohol.

5. [34]

   The sentencing judge (Colefax SC DCJ) was not persuaded as to the defendant’s assertions that he had no memory of committing the attacks. His Honour concluded that the offending fell above the mid-range into the upper range of objective seriousness. The offending involved an attack of brutality over a sustained period which had a profound impact on the victim.

The victim’s statement

1. [35]

   Pursuant to s 21A of the Act, the victim of the index offence provided a statement in which she expresses her support for the imposition of an ESO and raises a number of concerns about both the defendant’s past conduct and potential to reoffend. I have carefully considered the victim’s concerns and wishes and am grateful to her for the trouble that she went to prepare her statement.

2. [36]

   During the course of the hearing, I raised with Mr Mykkeltvedt the provisions of s 21A of the Act. He informed me that the victim statement had been provided to the legal representatives of the defendant and that the victim consented to it being provided to the defendant. I have had regard to the victim’s views in considering both whether to impose an ESO and the conditions that might be imposed.

The defendant’s criminal history

1. [37]

   The defendant’s criminal history commenced in 1981. He committed a number of driving and property related offences prior to the index offence. Between commission of the index offence in 1989 and being arrested in respect of the index offence in 2013, he committed a range of offences including offences relating to goods in custody, possession of prohibited weapons, serious driving offences and break enter and steal offences (a series of offences).

2. [38]

   During the period 2009 to 2013, he was convicted of and imprisoned in respect of a number of offences of violence including assault occasioning actual bodily harm, assault with an act of indecency, stalk and intimidate offences, contravention of an AVO and a further assault occasioning actual bodily harm for which he was sentenced to a period of imprisonment commencing 20 February 2012.

Failure to comply with obligations (s 9(3)(f))

1. [39]

   The defendant has only been in the community for a period of two months. There is no evidence of any problems during that two month period.

2. [40]

   However, during the period between the commission of the index offence in 1989 and being taken into custody in 2013, the defendant demonstrated an inability to refrain from reoffending. Further, the nature of his offending escalated with more incidents of violent offending occurring in the years prior to 2013.

3. [41]

   During his period in custody the defendant consistently refused to undertake sex offender treatment programs including the High Intensity Sex Offender Treatment Program (HISOP) on the basis that he could not remember committing the offences and thus did not need such treatment.

4. [42]

   Further, the defendant did not seek parole at any time and parole was formerly refused when he became eligible.

5. [43]

   I have had regard to the defendant’s attitude and past conduct but in circumstances in which it appears that the defendant has become institutionalised, it may be that his earlier conduct whilst on conditional liberty is of limited relevance.

The report and evidence of Professor Susan Hayes

1. [44]

   Professor Hayes examined the defendant on 11 March 2021. For the purposes of her assessment, she also carried out an extensive review of all of the material which has been made available on this hearing. The defendant stated to her that there is zero chance of him re-offending because he is sick of being in and out of jail.

2. [45]

   She assessed the defendant using the assessment of risk and manageability of individuals with developmental and intellectual limitations who offend – sexually instrument (ARMIDILO-S), an instrument designed specifically for use with individuals with a borderline or mild intellectual impairment who have offended sexually or displayed sexually offensive behaviour. As she observed, the instrument balances the risk ratings with the protective ratings. It is a process focussed on reducing the risk of reoffending and promoting related protective factors.

3. [46]

   She also used the STATIC-2002R to assess static historical factors as required by ARMIDILO-S. On the STATIC-2002R, the defendant’s score placed in the moderate-high range yielding a 27.2% predictive recidivism rate over a five year period.

4. [47]

   She considered that the overall convergent risk estimate for the defendant using both ARMIDILO-S and STATIC-2002R is moderate having regard to the current interventions, management plan and support. However, in a less highly supervised and structured environment the risk would rise to high.

5. [48]

   In her opinion, the defendant meets the criteria for substance use disorder in remission. It has been chronic throughout his lifetime although he is presently on the buprenorphine program which she says prevents him from using heroin and reduces cravings. Provided he remains on the program, his substance use disorder is likely to remain in remission.

6. [49]

   The results of cognitive testing indicate that the defendant functions in a range of low average ability for cognitive reasoning, although this is not a cognitive deficit as such. She observed that the defendant maintains he has memory difficulties and on that basis it would be desirable for information to be given to him in a number of different ways and reinforced repeatedly.

7. [50]

   She concluded that the defendant poses a threat of committing a serious offence, however that threat can be reduced with appropriate strategies. He poses a medium to high risk of general offending. She considers that his risk factors may fluctuate over time. In particular, if he reverts to substance use or his levels of support or monitoring decrease or he experiences a negative change in his mental health or adverse situational changes, the risk factors may increase.

8. [51]

   She reviewed the conditions proposed by the State. She believes they are appropriate. She says that the conditions will assist with the management of his risk. He needs structure, support and clarity.

9. [52]

   Ultimately, she concluded that as he has only been recently released from prison, there is a degree of unknown as to what may happen in the future. He is finding it difficult to adapt to life in the community and he needs ongoing support. The major risk factor remains if he reverts to using illicit substances.

10. [53]

    She confirmed this view during cross-examination. She considered that the structure that should be in place would involve the defendant submitting a weekly schedule of movements to which he must comply and that he needed to be extensively supported, particularly in terms of alcohol and drugs.

11. [54]

    Professor Hayes agreed in cross-examination that the defendant expressed a high motivation to remain offence-free and drug and alcohol-free and not engage in any violence. She did not consider that the State being able to review the defendant’s bank accounts or financial affairs would add to his risk profile being elevated, although it might be an indicator of whether or not funds may be going to sources which are not identifiable.

12. [55]

    She agreed that many of the conditions proposed by the State would restrict his ability to associate with certain persons. She was uncertain whether all of the more recent offending, that is, subsequent to 1990 involved persons he knew rather than strangers, although she did not consider that that particular fact altered the risk of reoffending.

13. [56]

    She also agreed that it was important that the defendant have access to the internet and social media as far as possible, although it is important that he is not searching people’s backgrounds and searching for people who did not want to have contact with him. That could be a trigger point. Ultimately, she accepted that there were a number of positive signs.

The report and evidence of Dr Kerri Eagle

1. [57]

   It is notable that the defendant continued to assert to Dr Eagle that he did not remember the offending and that in his mind he did not do it, although he has acknowledged that his DNA was there. He said that he only entered a plea of guilty to obtain the discount. He said that he had not undertaken the CUBIT or HISOP courses in custody because he was embarrassed, although he supposed he might engage in counselling now.

2. [58]

   Further, he explained his general offending as being based on him being stupid and too busy getting stoned. He said that he used to carry a knife as everyone carried one back then.

3. [59]

   As Dr Eagle observed, the defendant changed his name from Glenn Schnaars to Glenn Davis. He said he did so on the basis that he did not want to have his father’s name.

4. [60]

   Dr Eagle made particular references to the OIMS case notes and the breaches whilst the defendant was in custody. Specifically, Dr Eagle referred to the inmate discipline action form dated 13 October 2020 which suggested aggression towards a corrective services officer.

5. [61]

   Dr Eagle considered that the defendant did not demonstrate any experiences consistent with psychotic phenomena. Further, he displayed an awareness of the role that alcohol and other substances have played in his offending.

6. [62]

   She did not consider that the defendant suffers from any major mental illness. He has a substance use disorder which is currently in remission. He suffers from an anti-social personality disorder. His offending is as against the background of exposure to childhood violence and a dysfunctional childhood experience. She considered he would be at a particularly increased risk of offending in circumstances in which he was in a dysfunctional relationship, unemployed and living a chaotic lifestyle and abusing alcohol or illicit substances.

7. [63]

   He falls into the category of offenders at an elevated risk of committing a further serious offence such as sexual assault or a serious violence offence. His risk factors are increased in the absence of any supervision regime. The risk increases if he relapses into substance abuse.

8. [64]

   She agreed with the proposed conditions as they set out a broad framework of supervision and are intended to monitor the defendant’s movements, associations, living conditions, employment, substance abuse and relationships. She accepted that scheduling and electronic monitoring can be perceived as onerous and may limit the defendant’s ability to participate in certain types of employment.

9. [65]

   Dr Eagle was cross-examined on matters relevant to the disputed conditions. She agreed that scheduling and structure is very important to reducing the risk in respect of the defendant. She also agreed that the defendant appeared to be insightful in terms of his drug and alcohol abuse and this was a positive sign in his future risk being managed. She accepted that leaving aside electronic monitoring, all of the conditions should result in the provision of a very strict structure and stability for the defendant and that compliance with the conditions would mitigate the risk.

10. [66]

    I asked Dr Eagle about electric monitoring. She stated that electric monitoring itself does not prevent re-offending. She agreed that it does not prevent impulsive behaviour. It merely provides a mechanism by which movements might be monitored. She said there is no evidence that it prevented offending. She accepted in re-examination that deviation from the schedule of movements can provide an early indication that a person might not be travelling well.

11. [67]

    In terms of the monitoring of his online activity, she agreed that this issue required a lot of balance and discretion. She agreed that there is a lot of scope for misuse of online interactions but she would only state that there was a need for an ability to monitor those interactions as it might lessen the potential for inappropriate interactions.

Risk assessment report

1. [68]

   The State relied on a risk assessment report from Holly Cieplucha and Samuel Ardasinski, Senior Psychologists from the Serious Offenders Assessment Unit. The report was completed on 30 June 2020. They observed:

   1. (1)

      the defendant has generally been compliant with correctional centre routine although there were two institutional charges for being abusive and possessing a drug implement in 2017; and

   2. (2)

      further, earlier periods of supervision (that is, prior to being arrested for the index offence) suggest a poor response to supervision, noting the number of breaches of bonds and parole. The defendant has also undertaken limited programs whilst in custody.

2. [69]

   They conclude that there are a number of dynamic risk factors present in the defendant including:

   1. (1)

      hostility to women and a history of sexual violence;

   2. (2)

      difficulty in problem-solving skills and psychological adjustment;

   3. (3)

      mental disorder;

   4. (4)

      social adjustment;

   5. (5)

      impulsivity and non-sexual criminality; and

   6. (6)

      reluctance to engage in high intensity treatment to address his offending.

3. [70]

   Whilst acknowledging potential protective factors which might decrease or offset the risk of violence, they identified a number of risk management strategies including:

   1. (1)

      scrutiny of his social contacts;

   2. (2)

      making unannounced home visits, breath analysis and drug swab testing;

   3. (3)

      in the event of a repeat of his substance abuse issues, he could be referred to an appropriate community-based service; and

   4. (4)

      he may be obliged to wear electronic monitoring equipment and to provide a schedule of his daily movements. This may assist in his impulsive decision-making (although Dr Eagle disagreed that electronic monitoring might achieve this).

Unacceptable risk: s 5B(d)

1. [71]

   I have had regard to all of the evidence. It is very much to the same effect.

2. [72]

   I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.

3. [73]

   The prerequisites for the making of an ESO are thus satisfied. Although I have a discretion of whether to make the ESO, I am satisfied that it should be made in the circumstances of this matter.

The conditions

1. [74]

   There was limited dispute as to a number of conditions. Many of the risk factors identified in the evidence are subject to agreed conditions. The disputed conditions are as follows:

   1. (1)

      Part A, Condition 4;

   2. (2)

      Part D, Condition 20;

   3. (3)

      Part I, Conditions 33 – 35, 37, 39; and

   4. (4)

      Part J, Condition 43.

Condition 4 – Electronic monitoring

1. [75]

   The defendant initially opposed the imposition of any electronic monitoring. The State submits that electronic monitoring should be imposed as directed by a DSO. There can be no doubt that the obligation to wear electronic monitoring equipment is an onerous condition.

2. [76]

   I agree with the defendant’s submission that any conditions which are imposed must be directed to reducing the risk of recidivism of a serious offence having regard to the defendant’s particular risk profile as opposed to reoffending in a general way. Alcohol and substance abuse have been a key feature of the defendant’s risk profile.

3. [77]

   I have had regard to the evidence of Kelli Grabham as to the way in which electronic monitoring operates. Dr Eagle opines that use of electronic monitoring does not prevent reoffending. Nor does it prevent or even inhibit impulsive behaviour.

4. [78]

   Ultimately, Dr Eagle came to the view that electronic monitoring would not be appropriate on a longer term basis. I took her to mean that the use of electronic monitoring with this particular defendant on a longer term basis may be counter-productive. She opined that there is actually no real benefit from a risk management perspective in having all of the conditions in place for three years because if the defendant is not given the opportunity to develop his independence with a gradual lessening of restrictions, he will have no ability to demonstrate the lower risk or will not be able to motivate himself. There would be no opportunity to be a pro-social human being.

5. [79]

   She accepted that there is at the moment a lot of uncertainty as to how he was going to adjust but considered that if he could demonstrate after a few months that the restrictions could be lessened, then she would be in favour of somewhat lessening the restrictions.

6. [80]

   I suspect that Dr Eagle’s views caused the parties to reconsider the electronic monitoring condition as shortly before the delivery of this judgment, I was provided with some modified proposed conditions.

7. [81]

   I accept Dr Eagle’s observations but I am concerned that the defendant has only been in the community for a very short period. In my view, the defendant should be subject to electronic monitoring only for a period of six months. That now accords with the condition proposed by the parties.

8. [82]

   That six months should date from the date on which he was released into the community. That period will provide an appropriate indication as to whether the defendant is able to adjust to life in the community.

9. [83]

   There remains an issue between the parties as to the precise terms of the condition. I do not consider that the potential re-application of electronic monitoring should be at the discretion of the DSO and I thus prefer the defendant’s version.

Condition 20 – The defendant must provide any information relating to his financial affairs including income expenditure as directed by a DSO

1. [84]

   The high point of the State’s case on this condition is that a review of the defendant’s financial affairs might give some indication as to whether he is extracting large sums of money from his bank accounts and this might give some indication as to whether he is purchasing drugs. It is not clear to me that it would serve that purpose. It seems unlikely that the defendant would be purchasing drugs through a bank account. There may be a number of reasons why he may withdraw money from his accounts.

2. [85]

   It is important that the conditions are specific to the defendant’s risk profile. I consider that Condition 20 is overly onerous and I am not satisfied that it will assist in reducing the risk. I decline to impose Condition 20.

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

1. [86]

   The defendant again submits that these conditions are not associated with the defendant’s risk profile. There may be conditions which are ordinarily sought in cases involving sexual offending but the defendant does not have a history of offending involving the use of electronic communication or even use of the internet more generally.

2. [87]

   Both in State of New Wales v Lee [6] and State of New South Wales v Grooms (Final) [7] , this Court (per Hamill J and Fullerton J respectively) declined to impose similar conditions on the basis that there was nothing in the defendants’ history which would suggest that they had a propensity to groom their victims or seek them out by electronic means.

3. [88]

   The State refers to the earlier findings of Johnson J on the preliminary hearing. His Honour observed that it is reasonable to expect that the defendant will utilise social media to meet persons and communicate with them and this is a context in which monitoring of risk factors is appropriate. [8]

4. [89]

   Whilst I accept that the defendant has emerged from custody into a world in which the use of the internet is much more prolific in terms of meeting people and dating, having said that, the conditions are again particularly onerous.

5. [90]

   For example, whilst I initially understood that the defendant might have no opportunity to use a coded or encrypted messaging service, even WhatsApp is an encrypted messaging application or service.

6. [91]

   The State emphasises that the conditions do not go so far as requiring the defendant to seek approval in advance in respect of the vast majority of his online activities, but suggest that the key is that he not be able to delete any information.

7. [92]

   The difficulty with the conditions proposed is that it is important not to set the defendant up to fail. Conditions which are too onerous set the defendant up to fail and do not have the effect of reducing the risk. Indeed, they may increase the risk because they result in frustration on the part of the defendant and exacerbate those factors which lead to reoffending. Conditions which give a DSO almost complete control over an offender’s internet usage in circumstances in which his history of offending and risk factors do not involve internet usage do seem very onerous.

8. [93]

   Again, following the hearing there have been further discussions between the parties and the proposed conditions have been further limited. The central issue relates to whether the defendant must seek approval in advance or notify of usage within 24 hours.

9. [94]

   I prefer the latter approach. I do not agree that the defendant must seek prior approval of a DSO as to whether he can access any social networking service. The evidence does not suggest that the risk factors will be reduced by such a condition. Nor do I agree that he must not use services such as WhatsApp.

10. [95]

    The defendant no longer opposes conditions 40, 41 and 42.

Conclusion

1. [96]

   The defendant does not oppose the imposition of many conditions which might be viewed as onerous. I am satisfied that they should be imposed. However, the defendant has opposed the imposition of a small number of conditions. For the reasons I have identified I am satisfied that electronic monitoring should be imposed for a period of six months post-release into the community.

2. [97]

   However, I am not satisfied that there should be any condition requiring the defendant to provide his financial information to a DSO. Nor am I satisfied that all those conditions relating to the use of the internet should be imposed.

3. [98]

   I annex the Conditions.

4. [99]

   I make the orders sought in the Summons being:

   1. (1)

      An order:

   2. (2)

      An order that access to the Court’s file for any document shall not be granted to a non-party without leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.