State of New South Wales v Davie (Preliminary)

1. [1]

   HIS HONOUR: By summons filed on 4 September 2025, the plaintiff seeks an order that the defendant be subject to an extended supervision order (ESO). Various conditions are sought as part of that order. Prior to any final order being made, the plaintiff seeks interim orders as follows:

2. [2]

   An order was also sought restricting non-party access to the Court file. That order, which requires the parties to be notified and given an opportunity to be heard in the event of an application for access to the file by a non-party, has already been made.

3. [3]

   With respect to the substance of the application, the defendant, while he does not formally concede the statutory test is satisfied to enable the making of an interim supervision order (ISO), and the appointing of experts for the purposes of conducting examinations, makes no submission in opposition to the orders being made. There is, however, opposition to the imposition of a small number of the conditions sought by the plaintiff.

4. [4]

   On the application, the plaintiff read the affidavits of Jessica Leigh Murty affirmed 4 September 2025, 15 October 2025 and 19 November 2025, together with the associated exhibit and annexures.

5. [5]

   In the absence of any contest as to the making of the ISO, I can be relatively brief with respect to this aspect of the matter.

6. [6]

   The legislative scheme, the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) is designed to address the almost “intractable” problem of how the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release: State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280.

7. [7]

   The objects are set out in s 3 of the Act:

8. [8]

   On the filing of an application, the Court is required to conduct a preliminary hearing. Following the preliminary hearing, the Court may make an ISO and appoint relevant experts to conduct examinations and provide reports. Section 10A provides:

9. [9]

   Section 10A(a) is in this case satisfied; that is, it appears to me that the defendant’s current supervision will expire before the proceedings are determined. The defendant’s current supervision under a pre-existing ESO is due to expire, on the plaintiff’s calculation, at the expiry of 15 December 2025. That does not allow sufficient time to obtain relevant reports and conduct the hearing of the matter.

10. [10]

    Section 7(4) provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court must make orders appointing relevant experts to conduct examinations and furnish reports to the Supreme Court and directing the defendant to attend those examinations.

11. [11]

    If, on the other hand, I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an order, I must dismiss the application: s 7(5).

12. [12]

    It can be seen that both the making of an ISO and an order appointing experts are dependent on a finding that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, although s 7(4) mandates the making of certain orders if the relevant test is satisfied, whilst s 10A is subject to a discretion.

13. [13]

    The test draws attention to the central provision with respect to ESOs, s 5B, which provides:

14. [14]

    The expression “supporting documentation” in s 7 and s 10A is defined in s 4 to mean the documentation referred to in s 6(3). That section provides that an application for an ESO must be supported by documentation that addresses each of the matters referred to in s 9(3) of the Act, and a report prepared by a qualified psychiatrist, registered psychologist, or registered medical practitioner that assesses the likelihood of the defendant committing a serious offence.

15. [15]

    Section 9(2) provides that in determining whether or not to make an ESO, “the safety of the community must be the paramount consideration”. It follows that ESOs are, in their nature, protective and not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119.

16. [16]

    Section 5D further clarifies the test in providing that the Court is “not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence”.

17. [17]

    Sections 5B(a) to (c) all relate to matters of fact, which it is agreed are established by the supporting documentation in this case. The serious offences relied on by the plaintiff for the purpose of s 5B(a) are offences of sexual intercourse with a person under the age of ten years contrary to s 66A of the Crimes Act 1900 (NSW); commit aggravated act of indecency with a person under ten years in contravention of then s 61O of the Crimes Act; and aggravated indecent assault of a person under the age of ten years in contravention of s 61M of the Crimes Act; those offences being alleged to have been committed as part of the one incident in May 2005. Each of those offences constitutes a “serious sex offence” within s 5 of the Act.

18. [18]

    The defendant is presently under supervision. That is as a result of the imposition of an ESO of 3 years and 9 months on 22 August 2016: see State of New South Wales v Jeffrey Wayne Davie [2017] NSWSC 600. The defendant served periods of imprisonment during the course of the ESO such that the ESO was, on occasion, suspended pursuant to s 10(2) of the Act. As a result of those suspensions, the ESO is calculated by the plaintiff as due to expire at the conclusion of 15 December 2025. Section 5B(b) is satisfied. Without setting out the section, there is no issue that the application has been made in accordance with s 5I such that s 5B(c) is satisfied.

19. [19]

    Whether the matters alleged in the supporting documentation would, if proved, satisfy s 5B(d) is a matter involving an evaluative judgment which I must exercise. For this purpose, it is necessary to have regard to the matters set out in s 9(3) of the Act.

The factual background

1. [20]

   The defendant’s background and criminal history are set out in the plaintiff’s statement of case in the following terms:

Risk assessment

1. [21]

   I turn to the assessment of risk. In determining whether the matters in the supporting documentation would, if proved, justify the making of an ESO, I am required to have regard to the (not exhaustive) list of matters set out in s 9(3) of the Act:

2. [22]

   Section 9(3)(b) has no application. As this is a preliminary hearing, no such persons have yet been appointed.

3. [23]

   A risk assessment report was prepared by Ms Holly Cieplucha, a senior psychologist working within the Department of Corrective Services, dated 2 June 2025. Ms Cieplucha applied a number of risk assessment tools, they being the STATIC-99R, the Risk of Sexual Violence Protocol – Version 2 (RSVP-V2), and the Violence Risk Appraisal Guide – Revised (VRAG-R). Ms Cieplucha also had regard to the defendant’s history of sexual offending which, on any view, is significant. She reviewed the various expert reports that had been prepared and the treatment undertaken by the defendant over his history within the criminal justice system.

4. [24]

   Ms Cieplucha observed that the defendant had never completed a high intensity sex offender program. While he had commenced the Custody Based Intensive Treatment program (CUBIT) in 1999, he was discharged before completion. He has since declined referrals to similar programs, although he has shown a willingness to engage in individual management with Corrective Services psychologists. The defendant has previously undertaken anti-libidinal treatment, that being around the time of his release on the ESO. He did not, however, continue with that treatment.

5. [25]

   With respect to the defendant’s response to supervision whilst on the ESO, Ms Cieplucha noted that he had offended just two months after the ESO was imposed. That offending was constituted by him searching for and viewing child pornography over the internet. The offences resulted in a sentence of 4 years and 6 months with a non-parole period of 2 years and 9 months.

6. [26]

   After serving that sentence, he was released to parole and continued serving the ESO. Subsequently, between June and December 2022, the defendant engaged in conduct in breach of his ESO. The conduct involved him obtaining a laptop computer without the prior approval of his supervisor on the ESO and having telephone contact with a known sex offender, also no doubt without approval.

7. [27]

   In relation to this offending, the defendant received a sentence of imprisonment of 20 months with a non-parole period of 10 months, commencing on 16 December 2022, resulting in his release to parole on 15 October 2023.

8. [28]

   I note that since that time, the only offence on the defendant’s record is a single offence of assault occasioning actual bodily harm for which he received a sentence of 3 months. This offence had no sexual component. It appears to have been the result of a dispute within the group home in which the defendant was living. It can be said that this offending is not in keeping with the defendant’s prior offending, being the only non-sexual assault on his record.

9. [29]

   Ms Cieplucha otherwise described the defendant’s response to supervision as “mixed”, although a recent “dramatic improvement” was described. With respect to the defendant’s criminogenic needs, Ms Cieplucha reported that the defendant has been diagnosed with Paedophilic disorder, that he has problems with intimate and non-intimate relationships resulting in isolation, and that he has problems with supervision together with problems with denial, treatment and self-awareness. Ms Cieplucha assessed the defendant’s risk of sexual reoffending as in the “Well Above Average” range.

10. [30]

    I have had regard to the results of statistical and other assessments. These matters were taken into account in the risk assessment report of Ms Cieplucha.

11. [31]

    I have had regard to the risk management report prepared by Mr Steven Potter dated 30 June 2025. Mr Potter notes that the defendant was, at least at the time of the report, living with his mother. I understand that situation to have continued. Mr Potter also noted that the defendant was engaged in fortnightly appointments with a Corrective Services psychologist to address his offending behaviour and was additionally engaged in at least some age appropriate activities.

12. [32]

    The defendant was, at the time of the report, subject to “Stage 1” monitoring. That level of monitoring required the defendant, in addition to wearing an electronic monitor, to comply with a strict weekly schedule of conditions. Mr Potter reported that the defendant had established a routine and was strictly complying with his schedule.

13. [33]

    I note that in July 2025, shortly after the report was written, and presumably in response to the defendant’s level of compliance, he was progressed to “Stage 2” monitoring. This is a level of monitoring which, whilst maintaining the requirement for electronic monitoring and scheduling, is less restrictive than stage 1 monitoring. In effect, as I understand it, it allows the person subject to the conditions a greater degree of latitude in terms of the level of restriction imposed by the schedule, including allowing some pre-approved locations that a person may attend.

14. [34]

    The defendant has since progressed beyond stage 2 and on to “Stage 3” monitoring. While stage 3 monitoring maintains the requirement for electronic monitoring, it does not require that the defendant provide a schedule of movements in advance. The defendant’s progression to stage 3 was approved on 7 November 2025.

15. [35]

    Returning to the report, Mr Potter records that the defendant has indicated that he enjoys his sessions with the Corrective Services psychologist and he is motivated to continue with those sessions. It seems likely that the positive rapport established with the psychologist is related to the “dramatic improvement” described by Ms Cieplucha with respect to the defendant’s response to supervision.

16. [36]

    The improvement has been to the point that Mr Potter reported that the defendant has indicated a desire to continue with the current level of supervision, regardless of the existence of an ESO. The report of Mr Potter goes on to discuss a number of potential conditions which might be placed on the defendant in the context of an ESO and the potential benefits of such conditions.

17. [37]

    I have had regard to the matters set out in s 9(3)(e2) to (h1). These matters have largely been canvassed in the risk assessment report and risk management report.

18. [38]

    I am also entitled to have regard to “other information”, as available, as to the likelihood that the defendant will commit a further serious offence. In that regard, the plaintiff points to the judgment of Rothman J in deciding to impose an ESO rather than a CDO in 2016. His Honour did so, at least in part, on the basis that the risk was ameliorated by the defendant undertaking treatment with anti-libidinal medication. He is, as I have indicated, no longer subject to that treatment and has not been for some years, a matter which I accept is informative of his risk.

Determination

1. [39]

   I approach the test on the basis I have already set out. I have already indicated that the formal requirements are satisfied. I am of the view that the matters alleged in the supporting documentation are capable of satisfying the Court 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. This is largely based on my view that the risk as described by Ms Cieplucha, viewed in the context of the defendant’s history, and the other considerations in s 9(3) of the Act, is unacceptable. As I have already observed, the defendant did not argue against this conclusion.

2. [40]

   It follows that I am satisfied that the material in the supporting documentation would, if proved, justify the making of an ESO. The orders for the appointment of experts must be made. The imposition of an ISO is subject, as I have indicated, to a discretion. There is, having regard to the risk proposed by the defendant, nothing that would cause me to exercise my discretion so as not to impose the ISO.

Conditions

1. [41]

   I turn then to the conditions. The plaintiff has set out in a schedule to the summons the various conditions which were, at that time, sought. The defendant raised an objection to a number of the conditions in his written submissions. The plaintiff has responded modifying its position with respect to some conditions. The result of that process is that the area of dispute is very narrow. The parties are to be commended for their sensible and helpful approach in this regard.

2. [42]

   I am of the view that the conditions that are not in dispute should be imposed, largely for the reasons advanced by the plaintiff. They are, in my view, appropriately responsive to the risk posed by the defendant.

3. [43]

   The only area of dispute is with respect to the conditions relating to a schedule of movements. The proposed conditions 6, 7 and 8 are in the following terms:

4. [44]

   As I have indicated, the defendant has progressed to stage 3 monitoring with the result that he is not required to provide a schedule of movements and, it follows, not required to comply with any such schedule of movements. The dispute is, as a result, really about whether the conditions should be framed to provide the option to the plaintiff to regress the defendant if it is considered necessary.

5. [45]

   As I have indicated, it appears that the defendant has been, since his release to parole in October 2023, compliant with his ESO with the exception of the assault occasioning actual bodily harm offence in November 2024, which I accept is an aberration in the context of the defendant’s criminal history.

6. [46]

   Indeed, the defendant has in recent times been punctilious in his compliance with the ESO. His conduct in that regard, together with his engagement with psychological services provided to him, has no doubt been the reason for his progression to his current stage of monitoring. That progression is, however, very recent. It is, of course, hoped that the defendant will continue in the same positive vein as he has in recent times. In the light of the defendant’s history, and the recency of that progression, however, I am of the view that the option to impose a schedule, if required, should remain.

7. [47]

   My view with respect to the maintenance of this condition is, I should add, significantly informed by the evidence that those responsible for the defendant’s supervision appear to be working cooperatively with him in order to establish him safely in the community, and in doing so, are advancing both the defendant’s interests and that of the community.

8. [48]

   For the purposes of the orders I will now make, it will be necessary for the parties to provide my Associate with a schedule setting out the conditions to be imposed in accordance with these reasons. That schedule will be annexed to the orders I now make. I make the following orders:

   1. (1)

      An order, pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (the Act):

   2. (2)

      An order:

   3. (3)

      I direct that the parties by 5pm on 28 November 2025 provide to my Associate a schedule setting out the conditions in accordance with these reasons.