State of New South Wales v Davis (Final)

1. [1]

   HIS HONOUR: By its amended summons filed on 1 March 2016 the State of New South Wales seeks an extended supervision order under s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 for a period of five years and an order directing Mr Davis to comply with certain conditions contained in a Schedule to the summons pursuant to s 11 of the Act.

2. [2]

   Mr Davis does not dispute that he is a high risk sex offender under s 5B of the Act or that he poses an unacceptable risk of committing a sex offence if not kept under supervision. There is therefore no issue between the parties concerning whether or not I can make an extended supervision order. The only contested issues called up for consideration are whether the order should be made for a period of five years or some lesser period and whether some at least of the conditions contained in the Schedule should be made either at all or without modification. In the events that have occurred, this latter issue has also been resolved.

Background

1. [3]

   Mr Davis was sentenced for the offences of aggravated robbery, detain for advantage and aggravated sexual assault on 5 September 2003. The total effective sentence was 12 years with a non-parole period of 8 years. The sentence for aggravated sexual assault was itself 8 years with a non-parole period of 4 years.

2. [4]

   Mr Davis was released from custody on 12 October 2011 by order of the State Parole Authority. However, he was returned to custody on 29 September 2013 for failing to comply with the supervision conditions of his parole. His parole revocation was later rescinded on 5 December 2013. Following his re-release, Mr Davis’ parole was once again revoked on 28 March 2014 for failing to obey a reasonable command, failing to report as directed and failing to reside at an approved address. A warrant for his arrest was issued on 28 March 2014. He was not arrested until 13 May 2014 when he was apprehended and arrested for indecently assaulting an 18 year old victim in Wollongong.

3. [5]

   On 2 July 2014, the Crown Solicitors Office filed a summons seeking an interim detention order against Mr Davis. On 10 July 2014, he was charged with offences arising from the alleged incident on 13 May 2014. Bail was refused in respect of those matters. On 15 July 2014, the State Parole Authority confirmed the revocation of Mr Davis’ parole. Pursuant to the Crimes (Administration of Sentences) Act 1999, the date of expiration of his sentence was extended to 4 September 2014.

4. [6]

   On 17 July 2014, Hoeben CJ at CL made certain orders by consent, including the appointment of two qualified psychiatrists to examine Mr Davis under s 15(4) of the Act.

5. [7]

   On 19 August 2014, Mr Davis was sentenced to a term of imprisonment for 2 years for the offence of indecent assault commencing on 12 August 2014 and expiring on 11 August 2016. The non-parole period expired on 11 February 2016.

6. [8]

   On 11 December 2015, I ordered that Mr Davis be subject to an interim supervision order pursuant to s 10A of the Act upon his anticipated release from custody on 11 February 2016. Mr Davis was released from custody on that day, and has been subject to the conditions imposed by the interim supervision order. He has complied with those conditions.

7. [9]

   It is not in contest that Mr Davis was a detained sex offender who was in custody when this application was made, serving a sentence for a serious sex offence and that he was in the last six months of the total sentence when the application was filed. Further, Mr Davis does not dispute that the application is supported by the necessary documentation required under s 14 of the Act and that the material has been served on him. As I have already observed, there is also no dispute that Mr Davis is a high risk sex offender under s 5B of the Act or that he poses an unacceptable risk of committing a sex offence if he is not kept under supervision.

Term of the extended supervision order

1. [10]

   The State seeks an extended supervision order for a period of five years. Mr Davis contends that three years would be adequate and sufficient. The latter approach would take into account the fact that Mr Davis successfully completed the CUBIT programme while in custody and that he has so far exhibited positive responses to supervision since his release.

2. [11]

   In his report dated 13 August 2014 at page 22, Dr Samson Roberts offered the following opinion:

3. [12]

   Dr Jeremy O’Dea said this in his 5 September 2014 report at [102]:

4. [13]

   Dr O’Dea and Dr Roberts each identified a return to alcohol use as Mr Davis’ most significant risk factor. The evidence indicates that Mr Davis has support in the community to assist in maintaining his abstinence. However, Dr Roberts has noted that an earlier relationship that was supportive of ongoing abstinence from alcohol was not enough to prevent Mr Davis’ relapse, “reflecting the fact that Mr Davis has a propensity to resume alcohol consumption irrespective of the social milieu”: 13 August 2014 report at page 15.

5. [14]

   The State contended in light of these opinions that Mr Davis’ risk factors present an ongoing and unacceptable risk to the community over the long term and that an extended supervision order for the period of five years was called for in the circumstances.

6. [15]

   It was not contended on behalf of Mr Davis that these medical opinions were flawed or should for some particular reason be discarded or disregarded. Instead, counsel for Mr Davis referred to well-known authority that drew attention to the onerous nature of any supervision order and the availability of a means to extend the period if circumstances warranted such a course: see, for example, State of New South Wales v Conway [2011] NSWSC 925; State of New South Wales v Scerri [2012] NSWSC 271; Attorney General for the State of New South Wales v Steadman [2013] NSWSC 170.

Consideration

1. [16]

   Mr Davis was born in February 1959 and has a long and unfortunate criminal history of offending, including sexual offending. This would appear to have commenced in June 1976 when he was only 17 years of age. He is now 57 years old.

2. [17]

   On 4 June 1976, Mr Davis assaulted a female on a train. He was intoxicated at the time. He was fined $150 and sentenced to 30 days detention.

3. [18]

   On 18 October 1978, Mr Davis committed an act of indecent assault upon his 7 year old female cousin. The offence was committed while on a recognisance. He had been drinking prior to the assault. He was sentenced on 17 September 1979 to a further 5 year recognisance.

4. [19]

   On 8 February 1980, Mr Davis was arrested in Victoria and extradited to New South Wales where he was charged with assault and robbery whilst armed. The victim of the offence was a 26 year old mother of two who was camping with her husband and children at a caravan park near Eden. The victim’s husband had gone fishing and she was asleep in a tent with only her children. Mr Davis entered the tent, placed a towel over her face and held a screwdriver to her neck. Mr Davis told her that he would cut her throat if she screamed or moved. He pulled her night gown over her face and ultimately penetrated her. He made repeated demands for money and threatened to cut the victim’s throat and those of her children. Mr Davis had been drinking prior to the commission of these offences. He was sentenced to 13 years imprisonment on 16 December 1980 for the sexual assault and 9 years imprisonment for the armed assault and robbery. The sentencing judge recommended that Mr Davis receive treatment for his sexual problems.

5. [20]

   On 28 July 1998, Mr Davis assaulted his then wife. He had consumed alcohol before slapping and punching her to the face and head. She received cuts, abrasions and bruising. Mr Davis was sentenced on 29 August 1999 to a recognisance for 2 years.

6. [21]

   On 24 March 2002, Mr Davis once again assaulted his wife. They had been consuming alcohol. He pushed her to the floor, placed his foot on her head and kicked her several times in the back. This continued into the following morning. Mr Davis was convicted on 26 February 2004 in relation to the assault occasioning actual bodily harm and sentenced to imprisonment for 18 months.

7. [22]

   On 5 September 2003, Mr Davis was sentenced by Berman DCJ to a total of 12 years in custody, expiring on 18 July 2014, with a non-parole period expiring on 18 July 2010 for a series of offences, including an offence committed on 9 July 2002 involving the violent sexual assault of a woman in her home. He had been intoxicated at the time.

8. [23]

   Following his release on parole, Mr Davis committed an aggravated sexual assault upon an 18 year old woman on a train that they joined at Central Station. Mr Davis was intoxicated at the time. He pleaded guilty to indecent assault and was sentenced to 2 years imprisonment with a non-parole period of 18 months.

9. [24]

   The evidence suggests that Mr Davis has generally, although not exclusively, responded poorly to supervision. This is despite participating in several programmes designed to deal with drug and alcohol and sexual offending problems, including PREP, CUBIT and Getting SMART, as well as psychological and psychiatric assessment and counselling. He currently resides at the Nunyara Community Offender Support Program.

10. [25]

    I am sympathetic to the notion that continual supervision can in some circumstances operate to extend and prolong the difficulties with which Mr Davis is required to deal if it forestalls opportunities for him to achieve some form of insight and associated independence. The difficulty that I see with any period of supervision less than five years, however, is that Mr Davis’ history of violent offending in general and sexual offending in particular is of such longstanding that short to medium term supervision will be inadequate to address his problems. The aspect of community safety looms large in this assessment as well.

11. [26]

    Drs O’Dea and Roberts are of one view. I have not been directed to any countervailing or alternative opinions. Each expert foresees long term supervision as the only likely source of effective assistance for Mr Davis as a way to address future offending by him in the circumstances. I am unable to disagree with their prognoses. Mr Johnston SC who appears for Mr Davis accepts that the medical and psychological prognostications about the risks associated with Mr Davis reoffending and the need for long term supervision to accommodate that risk all point in the same direction.

12. [27]

    It is well established and uncontroversial that the appropriate duration of an extended supervision order is referrable to the risk of the offender committing further offences: see Johnson J in State of New South Wales v Tillman [2008] NSWSC 1293 at [62]. The safety and protection of the community and the need to encourage serious sex offenders to undertake rehabilitation are paramount.

13. [28]

    In the case of Mr Davis, the psychiatric and psychological experts agree that his abstinence from alcohol and other drugs is crucial to the management of his risk in the community over the long term. It follows that an assessment of the appropriate duration of an extended supervision order must take account of the associated risk of relapse into alcohol use. Unfortunately, Mr Davis’ use of alcohol and other drugs has been persistent and of longstanding.

14. [29]

    The risk assessment report dated 20 June 2014 prepared by Kate Solomon reveals at [29] that Mr Davis appears to have been able to manage himself responsibly for periods of approximately 12 months following his release from incarceration but has been unable to maintain that position over the longer term:

15. [30]

    That assessment is redolent of what is otherwise emphatically reflected in other assessment reports as well.

16. [31]

    I am satisfied that in the light of the whole of the evidence relied upon by the State that Mr Davis’ risk factors present an ongoing and unacceptable risk to the community. His historical and apparently intransigent and persistent problems with alcohol, and the need for continued support to maintain abstinence, are a reoccurring theme throughout the early and current expert opinions. I am equally satisfied that the ongoing and unacceptable risk to the community posed by Mr Davis is likely to exist and to persist over the long term. I am accordingly of the opinion that an extended supervision order for the period of five years is called for in the circumstances.

17. [32]

    I note that in forming my opinion and in arriving at my conclusions I have had specific regard, among other material, to the several expert reports tendered without objection and marked as exhibits “B” to “F” inclusive. I have also had similar regard to the affidavits upon which the State has relied, which were read without objection and which for convenience have been assembled in a folder that became exhibit “A” in the proceedings.

Conditions

1. [33]

   Not all of the proposed conditions were in dispute. In accordance with s 11 of the Act, I am required to be satisfied “having regard to the scope, purpose and objects of the Act that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order”: Wilde v State of New South Wales [2015] NSWCA 28 at [53].

2. [34]

   In State of New South Wales v Kamm [2016] NSWSC 1, I considered the need in the particular circumstances of that case to ensure that the conditions imposed were not more onerous or restrictive than the nature of the case required. For example, a sexual offender whose conduct has been exclusively directed to female children is not to be unnecessarily restricted from having contact with adult females against whom he has no history of, or any demonstrated propensity for, sexual offending. Similarly, restrictions on the use or consumption of alcohol or drugs have no automatic place in a supervisory regime with respect to an offender with no antecedent or anticipated problems with drugs or alcohol.

3. [35]

   Mr Davis originally contended in these proceedings that proposed conditions 14, 15, 26, 28 and 35 could and should be amended so as not unnecessarily to impose too onerous or inappropriate restrictions on him. Those conditions were originally proposed in the following terms:

4. [36]

   Mr Davis submitted that these conditions were unduly restrictive. However, the State has now conceded that the conditions should be revised to take account of these concerns. Accordingly, the conditions now listed in the Schedule to these reasons reflect what has now been agreed between the parties are suitable in the present circumstances. More importantly, they also represent what in the circumstances of this case I consider to be appropriate and necessary conditions.

5. [37]

   In forming that view I have taken account of the fact that Mr Davis will be subject to this regime for a period of five years in accordance with my decision in that respect. The intrusive and onerous nature of the conditions has therefore to be assessed having regard not only to the conditions themselves but to the period in Mr Davis’ life over which they will apply. In my experience, however, with the confidently anticipated competent and professional assistance of those with whom Mr Davis will be required to interact during the period of his supervision, the likelihood is that a settled and workable system or arrangement will develop so that the administration and enforcement of the conditions becomes a matter of mutual understanding rather than a source of conflict. In that respect I encourage the parties to cooperate whenever and wherever possible.

Conclusions and orders

1. [38]

   In the circumstances I make the following orders:

   1. (1)

      Order pursuant to s 5C of the Crimes (High Risk Offenders) Act 2006 that Paul Edward Davis be subject to a high risk sex offender extended supervision order for a period of five years from today.

   2. (2)

      Direct pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 for the period of the high risk sex offender extended supervision order that Paul Edward Davis comply with the conditions set out in the SCHEDULE to these orders.