Davie v State of New South Wales

[2016] NSWCA 96

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Davie v State of New South Wales [2016] NSWCA 96

Hearing dates:

08 April 2016

Date of orders:

08 April 2016

Decision date:

03 May 2016

Before:

Beazley P; Leeming JA; Payne JA

Decision:

1. Pursuant to s 22(3) of the Crimes (High Risk Offenders) Act 2006 (NSW) the time for commencing proceedings in this Court is extended to 29 October 2015.

 

2. Grant leave to appellant to file in Court and rely upon the further amended grounds of appeal.

 3. Appeal dismissed.

Catchwords:

CRIMINAL LAW – high risk sex offender – primary judge made continuing detention order – whether primary judge erred in failing to have regard to relevant matters – whether primary judge erred in failing to consider whether to exercise his discretion not to make a continuing detention order – where primary judge found that there was a high risk of the offender committing further offences on release – no errors demonstrated – appeal dismissed

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5B, 5C, 5D, 9, 15, 17, 18A, 21, 22, 23

Cases Cited:

Anderson v State of New Sales Wales [2016] NSWCA 86
Attorney-General (Qld) v Francis [2006] QCA 324
State of New South Wales v Atkins [2014] NSWSC 292
State of New South Wales v Cruse (No 2) [2014] NSWSC 128
State of New South Wales v Davie [2015] NSWSC 413
State of New South Wales v Davie (No 2) [2015] NSWSC 935
State of New South Wales v Donovan [2015] NSWCA 280

Category:

Principal judgment

Parties:

Jeffrey Wayne Davie (Appellant)
State of New South Wales (Respondent)

Representation:

Counsel:
P Strickland SC, G Scragg (Appellant)
W Abraham QC, H Bennett (Respondent)

  Solicitors:
Legal Aid NSW (Appellant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2015/219535

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2015] NSWSC 935

Date of Decision:

16 July 2015

Before:

Button J

File Number(s):

2015/84503

Headnote

[This headnote is not to be read as part of the judgment]

The appellant has been found guilty of sexual offences against children on three occasions, and has served substantial terms of imprisonment. On 20 March 2015, prior to the expiry of the sentence imposed on the third occasion, the State commenced proceedings seeking interim and final continuing detention orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). On 14 April 2015, the primary judge, Button J, made an interim continuing detention order under s 18A of the Act and orders for the appointment of psychiatrists under s 15(4). On 16 July 2015, his Honour made a continuing detention order with a term of 12 months under s 17(1)(b). His Honour stated his satisfaction that the appellant was a “high risk sex offender” and that adequate supervision would not be provided by an extended supervision order: s 5D of the Act.

The appellant appealed pursuant to s 22. He brought two grounds of appeal: first, that the primary judge erred in finding that he was satisfied that adequate supervision would not be provided by the making of an extended supervision order, including by failing to have regard to certain relevant matters; and secondly, that his Honour erred in the exercise of his discretion in making a continuing detention order, including by failing to consider that, even if he was satisfied in respect of adequate supervision, he had a discretionary power not to make a continuing detention order.

The Court held:

In relation to ground 1:

(1) His Honour had regard to the reports of the psychiatric experts appointed under s 15(4) of the Act. He correctly summarised the evidence of each of the experts, including that as to the appellant’s attitude to taking anti-libidinal medication. He did not err in finding that the appellant had expressed no real willingness to take such medication. [76]-[79].

(2) His Honour did not err in his consideration of the evidence relating to the therapy and risk management strategies which would be available to the appellant if he were released subject to an extended supervision order. In particular, his finding, on the basis of that evidence, that no appropriate therapy was available to the appellant in the community was open to him. [80].

(3) His Honour did not err in failing to take into account those conditions of the proposed extended supervision order which related to medical intervention and treatment. Having regard to the evidence as to the appellant’s unwillingness to take anti-libidinal medication and the absence of appropriate therapy in the community, the basis for those conditions was not in play. Further, the primary judge was not bound by authority to place the appellant on an extended supervision order so as to give him an opportunity to give informed consent. [81]-[90].

State of New South Wales v Cruse (No 2) [2014] NSWSC 128; State of New South Wales v Atkins [2014] NSWSC 292

(4) His Honour did not err in finding that he was satisfied pursuant to s 5D(1) that adequate supervision of the appellant would not be provided by an extended supervision order. [91].

In relation to ground 2:

(5) His Honour’s reasons, properly understood, indicate that he did not fail to consider whether, having found that adequate supervision would not be provided by an extended supervision order, he ought to exercise his discretion not to make a continuing detention order. [100].

(6) His Honour did not fail to have regard to the appellant’s rehabilitation. A consideration of that factor was implicit in his consideration of the evidence as to the psychiatric and other treatment needed by the appellant to control his offending behaviour. [102]-[106].

(7)   His Honour also did not err in failing to have regard to the serious consequences to the appellant of being detained beyond his sentence. Those consequences were explicitly adverted to by his Honour in his judgment in relation to the making of the interim continuing detention order and were implicit in his references to the “unusual circumstances of this case” in his judgment in relation to the final continuing detention order. [107]-[108].

Judgment

1. THE COURT: The appellant appeals against a continuing detention order made pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) by Button J on 16 July 2015: State of New South Wales v Davie (No 2) [2015] NSWSC 935 (Davie (No 2)). The order made in Davie (No 2) was for a term of 12 months and will expire on 15 July 2016.

2. An appeal to this Court against the making of a continuing detention order is available by right within 28 days from the date on which the decision was made, or by leave thereafter: s 22 of the Act. A summons seeking leave to appeal was filed in this Court on 29 October 2015, more than three months after the order was made. It followed that leave was required to appeal. Leave was not opposed and was granted, and for that reason Mr Davie will be referred to as the appellant in these reasons. An order was also made, with the consent of the State, permitting the appellant to rely on further amended grounds of appeal.

3. The matter came on for hearing before this Court on 8 April 2016. On that day, orders were made extending time to appeal but dismissing the appeal. The Court indicated that it would give its reasons on a later date.

4. We note that by the time this matter came on for hearing in this Court there were just over three months left before the continuing detention order expired. No application had been made to expedite the matter or to otherwise inform the Court that the matter was attended by some urgency. Although, as recorded on 8 April the Court was grateful for the assistance of counsel at the hearing, this placed a considerable burden on the Court in determining the appeal with more than the usual expedition in the interests of justice, including the interests of the appellant. In that regard, we note that the delay would have had particularly serious consequences had the appeal been upheld.

The appellant’s background and criminal history

5. The following background, which is uncontroversial, is principally derived from the findings of the primary judge in State of New South Wales v Davie [2015] NSWSC 413 (Davie (No 1)) at [1]-[8].

6. The appellant was born in October 1968 and is now 47 years of age. It appears that he was introduced to sexual activity at the age of 8 by another young boy, who subsequently introduced him to two adults who sexually assaulted him. He was again sexually assaulted when aged 14 years.

7. The appellant has been found guilty of sexual offences against young boys on three occasions. On the first, in 1984, at the age of 16 years, he pleaded guilty in the Children’s Court to an offence of indecent assault of a six-year-old boy. He admitted to having handcuffed the victim to a fence and to performing oral sex on him. He was admonished and discharged, with the Magistrate asking that he receive treatment from a doctor. He did not seek treatment.

8. In 1992, the appellant pleaded guilty to, or had taken into account on what was then a “Form 2”, a total of 32 sexual offences committed against 9 boys between 1985 and 1992. Some of the offences involved penile/anal intercourse with a four-year-old boy. Many of the victims were known to the appellant through his work as a babysitter and for various community organisations such as the Boy Scouts. Many involved a degree of planning. The appellant took photographs of some of his crimes, which led to the authorities being alerted by an employee of a film development service.

9. On that occasion, the appellant was sentenced to a total period of imprisonment of 12 years with a non-parole period of 8 years, to expire on 18 August 2000. However, the appellant was not released to parole until March 2003. His sentence expired on 18 August 2004. The appellant did not reoffend while on parole, during which period it appears that he was under the continual supervision of his mother.

10. The third occasion related to offences committed in May 2005. The appellant, while attending a social function organised by the State Emergency Service, persuaded a nine-year-old boy, who was in the company of his mother, to accompany him to the men’s toilets. The appellant performed oral sex on the victim and committed other sexual offences. It appears that the appellant continues to deny his guilt in relation to these offences. However, the Crown case, which was based on immediate complaint by the victim, the victim’s demeanour when leaving the toilets and the finding of saliva matching the DNA profile of the appellant on the underpants of the victim, was said by the primary judge in this matter to be “very close to overwhelming”: Davie (No 1) at [8].

11. For the 2005 offences the appellant was sentenced to a period of incarceration of ten years, with a non-parole period of six years. The appellant was not granted parole. The head sentence expired on 26 May 2015.

12. On 20 March 2015, the State commenced proceedings seeking interim and final continuing detention orders or, in the alternative, interim and final supervision orders under the Act. An interim continuing detention order was made by the primary judge on 14 April 2015, pursuant to s 18A of the Act, for a period of 28 days commencing on the expiry of the appellant’s sentence on 26 May 2015: Davie (No 1). The interim order was subsequently extended to 18 July 2015. His Honour also made orders for the appointment of Drs O’Dea and Ellis, psychiatrists, pursuant to s 15(4) of the Act. On 16 July 2015, his Honour made the continuing detention order now subject to appeal.

Legislative framework

13. The Long Title to the Act provides, relevantly, that it is an “Act to provide for the supervision and detention of high risk sex offenders”.

14. The primary object of the Act, as stated in s 3(1), is relevantly:

“… 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.”

15. Section 3(2) provides that another object of the Act is to encourage such offenders to “undertake rehabilitation”.

16. Part 1A prescribes the persons against whom an extended supervision order or a continuing detention order may be made. Section 5B provides as follows:

“5B High risk sex offender

(1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender.

(2) An offender is a “high risk sex offender” if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.

(3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence.”

17. If a person is a high risk sex offender, the Supreme Court may, on application under the Act, make an extended supervision order: s 5C.

18. Section 5D, the provision with which this case is principally concerned, provides for the making of a continuing detention order as follows:

“5D Continuing detention orders for high risk sex offenders

(1) The Supreme Court may, on application under this Act, make an order for the detention of an offender if the offender is a high risk sex offender and the Supreme Court is satisfied that adequate supervision will not be provided by an extended supervision order.

(2) An order made under this section is a “continuing detention order”.

(3) A continuing detention order made under this section may also be referred to as a “high risk sex offender continuing detention order”.”

19. Part 2, Div 1 of the Act specifies the requirements for making an application for an extended supervision order. There was no dispute that those requirements were met.

20. Part 2, Div 2 governs the determination of an application for an extended supervision order. Section 9(1) provides that the Supreme Court may determine an application for such an order by making the order or by dismissing the application. Section 9(3) provides for a range of matters to which the Court must have regard in determining the application, in addition to any other matters that it considers relevant. Those matters are relevantly identical to those listed in s 17(4) with regard to the making of a continuing detention order.

21. Part 3 of the Act deals with the making of continuing detention orders. There is again no dispute that the requirements of Part 3, Div 1 were met.

22. The determination of an application for a continuing detention order is governed by Part 3, Div 2. Section 17(1) provides that the Supreme Court may determine an application for a continuing detention order by making an extended supervision order, making a continuing detention order, or dismissing the application. Section 17(4) provides for a range of matters to which the Court must have regard in determining the application. Those matters are, relevantly, as follows:

“(a)   the safety of the community,

(b) the reports received from the persons appointed under section 15 (4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c)   the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d)    the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence,

(d1)    any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(e)   any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,

(f)    the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an interim supervision order or an extended supervision order,

(g) the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 ,

(h)    the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(h1)   the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i)    any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender continuing detention order)…”

23. Section 21 provides that proceedings under the Act are civil proceedings.

Reasons of the primary judge

Davie (No 1)

24. The appellant raised no challenge to Davie (No 1), in which interim orders for the appellant’s detention were made. However, to avoid repetition, his Honour’s judgment was expressly incorporated into Davie (No 2): at [8]. In that circumstance, his Honour can be taken, in the making of the orders in Davie (No 2), to have turned his mind to any relevant factors to which he expressly adverted in Davie (No 1).

25. In Davie (No 1), at [12], his Honour noted that while in custody the appellant had engaged in two preparatory treatment programs which were not focussed with specificity upon sexual offending and, for a number of months in 1999, in the Custody Based Intensive Treatment Program (CUBIT), a program for sex offenders. However, his Honour found that he had been discharged from that program due to his lack of commitment to it. At [14], his Honour assessed the appellant as “basically untreated in custody, as a result of his own attitudes.” He also assessed the appellant as:

“… lacking all but the most superficial insight into the gravity of his offending, and the inevitability of it having inflicted very deep and long-standing psychological injury upon many children.”

26. In his reasons for ordering the interim continuing detention order as opposed to an interim supervision order, his Honour observed, at [36], that:

“… it is noteworthy that the evidence does not suggest that the [appellant] would be able to be supervised 24 hours a day, or anything like it… Regrettably, the [appellant] has shown himself in the past to be adept at finding ways to have access to children in order to sexually assault them. He was able to complete the [2005] offences at the social function in a matter of minutes. I am well satisfied that, whether acting in a premeditated or opportunistic way, the [appellant] could inflict great damage upon a child in a similar period of time in the future, and he could do so even if subject to a very rigorous [interim supervision order].”

27. At [37], his Honour noted that he had “reflected carefully on the significance of detaining a citizen in custody even after a lengthy sentence has fully expired.”

28. His Honour concluded on the question of interim orders at [38], as follows:

“My final analysis may be summarised as follows. In short, since November 1984, over 30 years ago, the defendant has committed very serious sexual offences against children. Those offences have been both premeditated and opportunistic. He has been undeterred by stern sentences so far. He has not been successfully treated; to the contrary, there is a real question whether he even accepts the immense wrongfulness of what he has done. In the unusual circumstances of this case, I consider that nothing less than an [interim detention order] is appropriate.”

Davie (No 2)

29. In order to understand the nature of the appellant’s challenge to the continuing detention order made by the primary judge on 16 July 2015, it will be necessary to outline his Honour’s reasons in Davie (No 2) in some detail. In doing so, it will be convenient to identify those findings which were subject to specific challenge on appeal and those which were not.

30. His Honour outlined the new evidence before him on the final hearing at [10]-[60]. Of particular relevance to the matters in dispute on the appeal were the reports made pursuant to s 15(4) of the Act by Dr Ellis and Dr O’Dea, forensic psychiatrists, on 20 and 27 May 2015 respectively, and an affidavit of Ms Donaldson, a psychologist employed by Corrective Services, made on 18 June 2015. That evidence, and his Honour’s findings in relation to it, are examined in more detail below.

31. His Honour commenced his determination of whether to make an order under the Act, and if so, what order, at [85], by outlining the factors that he was required by s 17(4) of the Act to take into account.

32. At [87], his Honour considered that the safety of the community powerfully argued in favour of an order being made: s 17(4)(a). In respect of the factors specified in s 17(4)(b)-(d), which relate principally to expert reports and assessments, his Honour considered at [91] that:

“… all of those expert opinions are thoroughly consistent with the view to which one inevitably comes on the evidence as a whole: the risk of this untreated paedophile committing a serious sex offence against a child in the future, especially if not medicated to reduce his libido, is very high.”

That finding was not challenged on appeal.

33. At [92], his Honour noted that, under an extended supervision order, the appellant would be closely managed in the community: s 17(4)(d1). However, at [93] his Honour held that:

“… I maintain the view, expressed in my preliminary judgment, that there is a very significant risk that, even if subject to a stringent [extended supervision order], the defendant could commit serious sex offences against a child within a matter of minutes. He has done exactly that at least twice in the past; the second occasion was a matter of days before he was last at liberty. And the commission of such offences may require only a deviation of a matter of metres from an approved path: for example, in order to lure a child into public toilets at a railway station. Such a deviation may not even be able to be detected electronically, let alone prevented.”

34. A similar finding was made at [98], in his Honour’s consideration of the appellant’s criminal history pursuant to s 17(4)(h). That history was held to be “very adverse”.

35. At [94], his Honour held that:

“In the unusual circumstances of this case, I do not consider that the defendant can be reasonably and practically managed in the community at this stage.”

36. His Honour dealt with s 17(4)(e)-(g) as follows:

“95 I maintain the position that the therapy that the defendant has received with regard to his chronic condition is, at the most, very incomplete: s 17(4)(e).

96 It is true, and in favour of the defendant, that in the past he has succeeded on parole: s 17(4)(f).

97   Whilst on parole, the defendant was subject to the Child Protection (Offenders Registration) Act 2000 (NSW). A charge against the defendant of failing to comply with a reporting obligation was dismissed. The State placed no other evidence of breach before me: s 17(4)(g).”

37. His Honour considered, at [99], that the views of the sentencing courts did not directly speak against the appellant’s release: s 17(4)(h1).

38. Finally, his Honour considered that other information, including such matters as the attitude of the appellant to the 2005 offences, militated in favour of making a continuing detention order: at s 17(4)(i).

39. At [102], his Honour expressly maintained his conclusion at [38] in Davie (No 1), extracted above at [28]. He held that the evidence before him was more adverse than that which had been available at the preliminary hearing. That finding was made for the following reasons:

“103   First, two highly qualified forensic psychiatrists have spoken of a risk of serious sexual reoffending that is, at the least, high.

104   Secondly, the defendant has been frank enough to admit that he still engages in sexual fantasies about young boys.

105   Thirdly, the defendant has expressed his intransigence with regard to therapy in custody.

106   Fourthly, it is now clear that no appropriate psychological or psychiatric therapy is available to the defendant in the community.

107   Fifthly and finally, the defendant has expressed no real willingness to be subject to a regime of anti-libidinal medication, a regime that each psychiatrist regards as virtually essential to him abstaining from reoffending.”

The appellant, in his argument in respect of ground 2, particularly challenged his Honour’s fourth reason and contended that the fifth was incomplete.

40. At [108], his Honour held that he was satisfied that the test in s 5B(2) was made out (with the effect that the appellant was a “high risk sex offender”). That finding was not challenged.

41. At [109], his Honour held as follows:

“In the circumstances of this case, there is no question of me exercising any discretion to decline to make a [continuing detention order] or an [extended supervision order]. I shall not tarry to repeat the evidence that leads me to that view: it is the same evidence that persuades me that the central test is made out.”

His Honour’s findings in [109] were not challenged. However, a question arose as to whether they were sufficient to ground the proper exercise of the discretion to order a continuing detention order.

42. At [110], his Honour held that he was “well satisfied that an [extended supervision order] would not provide adequate supervision of the [appellant].” His Honour gave two reasons for that finding. First, at [111], he considered that while the appellant had succeeded on parole, in that period he was under the “virtually continuous” supervision of his mother, and he re-offended a matter of months later. Secondly, in a passage subject to particular challenge in the argument in respect of ground 1, he held at [112]:

“I do not consider that even the very rigorous regime of conditional liberty that is proposed by the State will adequately protect the community from the defendant taking the opportunity to reoffend against young boys. As I have emphasised, in the past the defendant has been able to commit serious sex offences against children even when their parents are present. I do not believe that an [extended supervision order] in its current form, even accepting the rigour of its conditions and the intention of the authorities to enforce those conditions rigorously, can sufficiently protect the community against the defendant offending in such a way again.”

43. At [113], his Honour held as follows:

“All tests for the making of the CDO having been satisfied, I propose to make the more restrictive order.”

44. At [118], his Honour determined that he would impose a continuing detention order for a period of 12 months. That period was not the subject of challenge in this Court.

45. His Honour refused to make an extended supervision order to commence on the expiry of the continuing detention order. His reason for that refusal, given at [119], was as follows:

“… it is because, as things currently stand, I regret to say that I have no satisfaction that the [appellant] should be released to conditional liberty. That is because I believe that it is very likely that, if released, he will commit a serious sex offence against a young boy. In those circumstances, I am not prepared to order his release to an [extended supervision order] on the evidence before me, whether that release be now or in 12 months’ time.”

That finding was subject to challenge, albeit for the first time in oral hearing in this Court.

Evidence

Report of Dr O’Dea

46. Dr O’Dea’s report was made on the basis of an interview with the appellant conducted on 7 May 2015.

47. In relation to the appellant’s attitude to anti-libidinal medication, Dr O’Dea reported that:

“When I asked him whether he would consider taking medication to assist in managing his sexuality, he said, “… as far as medications goes … no … I don’t believe in them … what happens if it wears off … or I get used to the dosage … how do I know that taking these things won’t re trigger these things ... I know the psychologists are against these things ... I know I can do it without these interventions …” (ellipsis in original)

48. As to whether the appellant would consider engaging in psychological treatments in the community, Dr O’Dea reported that he said:

“… no problems … as long as it’s one to one … because I don’t want others to know about it if I don’t have to … I probably wouldn’t engage in psychological treatments … if I’ve got problems I know there are services available …” (ellipsis in original)

49. Dr O’Dea made the following assessment:

“As a number of [the appellant’s] sex offences, including the index sex offences, were committed against previously unknown male children, in public settings, and when the children were being supervised by a parent, it would seem appropriate that [the appellant] would require to be compliant with an adequate dose of the anti-libidinal medication … and with a structured and supervised community management program, such as set out in the report dated 24 February 2015, prepared by Rebecca Kaye …

Indeed, I do not consider that [the appellant’s] risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence ... would be adequately and appropriately managed at this stage in the community without successful implementation of the above psychiatric treatment and risk management program, including successful prescription of anti-libidinal medication, together with a structured and supervised community management program.

However, further time in custody, at the present time, even with [the appellant’s] participation in psychological sex offender programs in custody during that time, is unlikely to significantly reduce this risk on his subsequent release from custody.”

50. The primary judge considered Dr O’Dea’s report at [23] ff. His Honour stated at [30] that the defendant had “indicated [to Dr O’Dea] that he would not consent to take” anti-libidinal medication. He then recorded the appellant’s comments to Dr O’Dea in relation to anti-libidinal medication, that “I don’t believe in them” and “I know I can do it without these interventions”. He also recorded appellant’s comments that he was prepared to engage in individual psychological therapy in the community and that he “probably wouldn’t engage in psychological treatments”.

51. His Honour, at [42], summarised Dr O’Dea’s opinion in the following terms:

“…if released to the community, the [appellant] should be consulting a suitably qualified and experienced forensic psychiatrist, and that a central component of his psychiatric treatment and risk management would need to be anti-libidinal medication”.

Report of Dr Ellis

52. Dr Ellis’ report was made on the basis of an interview with the appellant on 10 May 2015.

53. In relation to the appellant’s attitude to anti-libidinal medication, Dr Ellis stated that:

“The decision to take antilibidinal medication is one for the informed competent patient. The assessment did not include a detailed discussion of potential risks and benefits of medication, however canvassed the option in general terms. He stated that he would consider medication as an option after a full medical evaluation.”

54. Dr Ellis noted that anti-libidinal medication could be administered by tablet or long-acting injection, and that compliance could be monitored by measuring serum testosterone.

55. Dr Ellis subsequently commented that:

“It would be recommended [the appellant] be referred to a forensic psychiatrist for assessment for antilibidinal medication. This would be the method most useful in reducing risk derived from sexually deviant arousal. Even should he not agree to this treatment now, should he show signs of relapse during supervision the issue could be revisited with him.”

56. The appellant told Dr Ellis that he was “prepared to do one-on-one psychological counselling in the community.” Dr Ellis gave the following opinion on treatment outcomes in custody as compared to those in the community:

“The evidence for psychological treatment in community settings is more promising than for custody, presumably as the psychological gains made are able to be tested in a real setting, and exposure to criminal peers is reduced. There is no indication extended incarceration reduces offending on release.

In this case with the significant monitoring that can be in place with an extended supervision order, including restrictions on accommodation … and restrictions on associating with vulnerable persons the theoretical benefits of further incarceration in order to gain a theoretical benefit from psychological treatment would be outweighed by the potential greater gains in risk reduction in a structured community setting. If antilibidinal medication were used as part of treatment, then further risk reduction is likely.”

57. His Honour commenced his consideration of Dr Ellis’s report at [43]. His Honour observed at [54] that, in conformity with Dr O’Dea, Dr Ellis placed emphasis on anti-libidinal medication as being the best treatment to address deviant arousal on the part of the appellant. At [57] his Honour further noted that Dr Ellis had stated that the question of medication was one for the “informed consent of a patient” and that the appellant had told Dr Ellis that he would “consider medication” as an option but only after a full medical evaluation.

Affidavit of Megan Donaldson dated 18 June 2015

58. Ms Donaldson is a registered psychologist employed by Corrective Services. She gave evidence that Corrective Services provides treatment specific to sex offending in the community through Forensic Psychology Services (FPS). The appellant, having been assessed as a high risk offender, was not eligible for Community-based Treatment, a group therapy program provided through FPS. However, Ms Donaldson noted that the appellant would be eligible for risk management sessions provided by FPS if he consented to them and an extended supervision order was made.

59. Ms Donaldson assessed the FPS risk management sessions as follows:

“Risk management aims to address the risk behaviours by implementing alternate behavioural strategies to manage high risk situations. This differs from custody-based intensive treatment such as CUBIT, which provides treatment or intensive therapy aimed to reduce risk over the longer term by addressing dynamic or criminogenic factors, which are related to risk.

…

I am not aware of any empirical research on the efficacy of risk management sessions in the community.

In my view, the risk management approach in the community is less intensive than programs offered in custody due to the absence of a “therapeutic community” and reduced frequency of treatment or groups. The [appellant] has been assessed as a high risk offender who would benefit from high intensity treatment. It is my opinion that the level of intensity and nature of risk management sessions may not adequately address the [appellant’s] level of risk and treatment needs.”

Proposed conditions of extended supervision order

60. It is not necessary to set out in full the conditions of the proposed supervision order. The following conditions, however, were directly relevant to the appellant’s attack on his Honour’s reasoning:

“Part A: Reporting and Monitoring Obligations

Reporting and Monitoring Generally

1. The [appellant] must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.

2. The [appellant] must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.

3. The [appellant] must follow all reasonable directions by his DSO or any other person supervising him.

…

Part L: Medical intervention and treatment

49. The [appellant] must notify his DSO of the identity and address of any healthcare practitioner that he consults.

50. The [appellant] must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.

51. The [appellant] must take all medications that are prescribed to him by his healthcare practitioners, including any anti-libidinal medication.

52. If the [appellant] knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the [appellant] is to notify the DSO within 24 hours of ceasing to take the medication.

53. The [appellant] must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.

54. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited, his DSO and CSNSW.”

Grounds of appeal

61. The appellant’s Further Amended Grounds of Appeal were as follows:

“GROUND 1

His Honour erred in finding that he was not satisfied pursuant to s 5D(1) of [the Act] that adequate supervision will not be provided by an extended supervision order including:

(a) His Honour failed to consider key elements of the reports of Dr Ellis and Dr O’Dea, persons appointed under section 15(4) to conduct an examination of the appellant;

(b)    His Honour failed to consider that there were psychological or psychiatric therapy and risk management strategies available to the appellant in the community;

(c)    His Honour failed to consider the significance and effect of conditions 49 to 54 of the proposed extended supervision order.

GROUND 2

His Honour erred in the exercise of his discretion in making an order for a continuing detention order including that:

(a)    His Honour failed to consider that even if satisfied that adequate supervision will not be provided by an extended supervision order, he had a discretionary power not to make a continuing detention order;

(b)    His Honour failed to consider whether the making of a continuing detention order was likely to discourage the appellant to undertake further rehabilitation or impede that rehabilitation;

(c)    His Honour failed to consider, as part of the exercise of that discretion, the serious consequences for the appellant as a result of his being detained beyond his sentence.”

62. At the outset of the hearing in this Court, the appellant conceded that grounds 1(c) and 2(b) of the further amended grounds were not argued before Button J. However, he submitted that those grounds did not represent entirely new arguments but rather were refinements of existing arguments. Leave was granted at the hearing to rely on the amended grounds.

Submissions – ground 1

63. The appellant’s overall submission in relation to ground 1 was that because sufficient treatment was available to the appellant in the community, and because safeguards would be in place under an extended supervision order if he refused to engage with that treatment, “adequate supervision” of the appellant would be provided if he was released subject to a supervision order. In that regard, he emphasised that “adequate supervision” in s 5D(1) was not anchored to the concept of “unacceptable risk” in s 5D(2): State of New South Wales v Donovan [2015] NSWCA 280 at [74]-[75]. He also submitted that “adequate supervision” did not mean watertight supervision: Attorney-General (Qld) v Francis [2006] QCA 324.

Submissions – ground 1(a)

64. In respect of ground 1(a), the appellant submitted that the primary judge erred in failing to consider that both Dr Ellis and Dr O’Dea considered that there was adequate protection for the community if an extended supervision order was made, provided the appellant received appropriate therapy and took anti-libidinal medication.

64. The appellant accepted as correct the primary judge’s finding at [107] that the use of anti-libidinal medication was virtually essential to the appellant abstaining from reoffending. When pressed, he also accepted that the appellant had expressed “no real willingness” to be subject to that medication. However, he contended that his Honour’s finding was incomplete and that the evidence of the appellant as to his attitude towards anti-libidinal medication was ambiguous.

65. The appellant contended that the report of Dr O’Dea extracted above at [49] was in this respect unclear, as it did not contain an express statement by the appellant that he would not consent to take anti-libidinal medication. The appellant also contended that the primary judge erred by finding otherwise at [30]. The appellant also placed some reliance on his statement, recorded in the report of Dr Ellis set out above at [53], that he would consider medication as an option after a full medical evaluation.

66. Further, the appellant contended that the question of whether he would provide informed consent had not yet arisen, as the appellant had not yet been referred to a doctor for consideration of suitability for anti-libidinal medication: State of New South Wales v Atkins [2014] NSWSC 292 at [117].

Submissions – ground 1(b)   

68. The principal submission in respect of ground 1(b) was that his Honour erred in finding at [106] that “no appropriate psychological or psychiatric therapy is available to the defendant in the community.” That error was said to feed into the crucial finding in [112] that an extended supervision order would not adequately protect the community.

69. The dispute on this issue principally turned on the primary judge’s treatment of the evidence of Ms Donaldson, and whether the risk management sessions which she indicated would be available to the appellant on release to supervision amounted to appropriate therapy. The appellant contended that it was and that it would reduce the appellant’s risk of reoffending. That contention was advanced by way of the reinforcement of a further submission that the primary judge failed to have proper regard to the general opinion of Dr Ellis to the effect that treatment in the community was more effective than treatment in custody.

Submissions – ground 1(c)

70. By ground 1(c), the appellant contended that even if he had not yet demonstrated any real willingness to take anti-libidinal medications, that was not material having regard to the proposed extended supervision order. This was because, although he could not be forced to take the medication, the regime under the proposed order had the effect that, if the Department Supervising Officer was not satisfied that the appellant was taking anti-libidinal medication, an urgent application could be brought for a further interim order under the Act. On the appellant’s construction of the conditions of the proposed order, the regime provided for the sharing of information such that the authorities would be made aware of the appellant’s treatment or lack thereof.

71. This approach was, according to the appellant, effectively that taken in Atkins. In that case, Johnson J, in making an extended supervision order, proceeded on the basis that informed consent to anti-libidinal medication would be given when the occasion for it arose: at [118], and it was considered relevant that the State could seek further orders if consent was in fact refused: at [121].

72. The State submitted that all of the primary judge’s findings were open to him and that his judgment accurately reflected the expert evidence. It contended that Atkins is not authority for the proposition that the correct approach, in cases in which anti-libidinal medication is a central issue, is to put the offender on an extended supervision order to allow them time to give informed consent. Rather, the outcome in Atkins reflected an analysis of the particular circumstances of that case.

Consideration – ground 1

73. In the Court’s opinion, no error has been disclosed in the primary judge’s reasons.

74. The error identified by ground 1 was a failure to consider three specific relevant considerations: namely, key elements of the reports of the psychiatric experts; the fact of there being available psychological treatment strategies available in the community; and the significance and effect of certain conditions of the proposed extended supervision order. In essence, however, each of these matters was directed to the adequacy of supervision in the community.

75. As the Court has already given detailed consideration to the primary judge’s reasons and the parties’ submissions in respect of them, we can state our reasons for rejecting this ground of appeal in fairly short order. In doing so, we bear in mind the established principle that, provided a primary decision maker has considered a relevant matter in coming to a determination, the question of the weight or importance to attach to that matter is, subject to limited exceptions, a matter for the decision maker.

76. Section 17(4) of the Act prescribes the matters the Supreme Court must take into account in determining whether or not to make a continuing detention order. These matters include “the reports received from the persons appointed under s 15(4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination”: s 17(4)(b). Dr O’Dea and Dr Ellis were appointed under s 15(4) to conduct examinations of the appellant. The Act thus prescribed that regard was to be had to their reports. As this Court stated recently in Anderson v State of New Sales Wales [2016] NSWCA 86 at [65], it is the contents of such reports which are relevant.

77. In Davie (No 2), the primary judge, at [23] ff and [43] ff respectively considered the evidence in the reports of Dr O’Dea and Dr Ellis. We have made brief reference to his Honour’s consideration of that evidence and have set out the relevant portions of those reports above. We are satisfied that his Honour correctly summarised the evidence of each of these psychiatric experts. At [30], his Honour appropriately made express reference to that part of Dr O’Dea’s report as to the appellant’s attitude to taking anti-libidinal medication. His characterisation of the overall effect of Dr O’Dea’s report as being that the appellant would not consent was reasonable given the negative tenor of the appellant’s statements recorded by Dr O’Dea.

78. His Honour’s understanding was reinforced by the appellant’s submission to the primary judge that “the ultimate position of Mr Davie is this… Mr Davie doesn’t believe that the behaviour of anyone, let alone himself, ought to be controlled by medication”. The appellant’s position before his Honour was therefore both emphatic and unambiguous. His Honour also referred, at [57], to the appellant’s more qualified approach to taking such medication as indicated to Dr Ellis.

79. It follows that in our opinion, his Honour had regard to the contents of each of the psychiatric reports.

80. Ground 1(b) of the appeal related to his Honour’s alleged failure to consider that there were psychological or psychiatric therapy and risk management strategies available to the appellant in the community. The availability of such therapy and strategies was the subject of Ms Donaldson’s affidavit, which was considered by his Honour at [18] ff. At [21], his Honour noted that the risk management sessions that could be provided to the appellant in the community by the Forensic Psychology Services were not therapeutic in nature. Having regard to Ms Donaldson’s statement extracted above at [59], we consider that that finding was open to his Honour. It followed that, as his Honour found at [106], no appropriate psychological or psychiatric therapy was available to the appellant in the community. There is therefore no basis for the assertion in ground 1(b).

81. Much of the appellant’s argument on the appeal was directed his contention in respect of ground 1(c) that his Honour failed to consider the significance and effect of conditions 49 to 54 of the proposed extended supervision order, which related to the requirements and conditions imposed upon the appellant in respect of medical intervention and treatment. Insofar as the conditions overall were concerned, his Honour recognised that they imposed a “very rigorous regime of conditional liberty”: at [112].

82. Although his Honour did not give separate consideration to conditions 49 to 54, that is readily explained by the fact that his Honour had already determined that it was clear that there was no appropriate psychological or psychiatric therapy available to the defendant in the community: see at [106]; and that he had expressed no real willingness to be subject to a regime of anti-libidinal medication, that both Drs O’Dea and Ellis had considered was virtually essential: see at [107]. It will be remembered in this regard that according to Dr Ellis, such medication could only be prescribed on the basis of informed consent by the patient, in this case the appellant; that the closest the appellant came to indicating a willingness to consent to taking such medication was after a relevant medical assessment for that purpose; and that no such assessment has ever been carried out. In those circumstances, the appellant’s attitude to taking such medication, on the evidence before his Honour, was at the best, ambivalent and, as we have already indicated, his position before his Honour was emphatic that he should not be required to take such medication.

83. Accordingly, it is not to the point to say that his Honour failed to consider the conditions proposed for any extended supervision order which required the appellant to attend psychological and psychiatric treatment and take such medication as was prescribed including any anti-libidinal medication, when the basis for each of the conditions to operate were simply not in play on the evidence before his Honour.

84. Nor do we accept the appellant’s submission that the approach taken by Johnson J in Atkins indicated the appropriate way in which the Court should approach all matters in which anti-libidinal medication is a factor.

85. The defendant in that case was aged 59 and was illiterate. He had been assessed as having a mild intellectual disability with an intelligence rating in the mildly retarded range, in the lowest two per cent of the population. Like the appellant in the present case, he had been convicted and sentenced for sexual offences and had not undertaken any relevant treatment in custody, although the applicant’s sexual offending was far more extensive than that of the defendant in Atkins.

86. At the time that Johnson J in Atkins was considering the State’s application for a continuing detention order under the Act, the defendant had been released into the community on the conditions imposed by an interim supervision order. The defendant had been compliant with those conditions.

87. The State in Atkins pressed the court to make a continuing detention order on the basis that it would not be satisfied that adequate supervision would be provided by an extended supervision order. Particular emphasis was placed upon the expert evidence of the need for the defendant to be treated with anti-libidinal medication. An assessment of the defendant’s suitability for that treatment had not been undertaken, but, on the evidence before his Honour, could be undertaken during the course of supervision if an extended supervision order was made.

88. Johnson J considered, at [118], that there was a proper foundation in the evidence that any conditions of an extended supervision order include the use of anti-libidinal medication and that it was highly desirable that the defendant’s suitability for such treatment be assessed as soon as possible. His Honour noted, however, that the defendant could not be compelled to take such medication against his will: State of New South Wales v Cruse(No 2) [2014] NSWSC 128 at [105].

89. Importantly, having regard to the appellant’s submission in this case, Johnson J considered at [121] that if the defendant in Atkins declined to give his informed consent to taking anti-libidinal medication and that was considered to be a critical aspect of his risk management in the community under an extended supervision order, the State could approach the court pursuant to s 13B on the basis that circumstances had altered since the making of such an order such that adequate supervision could not be provided under an extended supervision order.

90. Atkins must be considered having regard to its own facts. The facts in that case are different from the facts proven in this case. The making of a particular order in that case does not prescribe the orders that must be made in another.

91. Ground 1 of the appeal is rejected.

Submissions – ground 2

92. The appellant’s contention in relation to ground 2(a) was that, having determined not to make an extended supervision order, his Honour failed to consider separately the exercise of his discretion whether or not to make a continuing detention order. There was no dispute that that residual discretion did require separate consideration: Donovan at [14]-[15]. In this regard, while Donovan considered the provisions of the Act relating to high risk violent offenders, there is no relevant distinction to be drawn with those provisions presently under consideration relating to high risk sex offenders.

93. As noted above, his Honour found at [109] that there was no question of exercising the discretion to decline to make either a continuing detention order or an extended supervision order. The appellant contended that that did not demonstrate that he had separately considered the discretion whether or not to make a continuing detention order. Rather, as we understand the submission, the appellant contended that [109] followed, without further consideration, from the effective finding in [108] that the appellant posed an “unacceptable risk” and was therefore a “high risk sex offender”.

94. On the appellant’s contention, the primary judge went on to determine that an extended supervision order would be insufficient, such that the requirements of s 5D(1) were made out: at [110]-[112], and then to conclude, at [113], that he would therefore make a continuing detention order, without independently considering his discretion as to whether to decline to do so.

95. The State submitted that the primary judge’s reasons at [109]-[113], properly understood, did indicate that he had considered the residual discretion to decline to make an order. It contended that there was no requirement for him to expressly state the negative proposition that he was declining to exercise his discretion to decline to make an order.

96. The appellant further contended that, having failed to consider the separate discretion conferred by s 5D, his Honour failed to consider two relevant considerations which went to that discretion. The first was that the making of a continuing detention order as opposed to an extended supervision order would have a negative effect on the appellant’s rehabilitation: ground 2(b). The importance of that consideration was said to flow both from the ‘other object’ of the Act being rehabilitation: s 3(2), and also from the primary object, the protection of the community, in the sense that the appellant would presumably eventually be released and, for the protection of the community, would need to be rehabilitated by that time. The second consideration was the effect of the continuing detention order on the appellant’s right to liberty: ground 2(c).

97. In oral argument, the appellant accepted that he could not be successful in ground 2 unless he was successful in his challenge to the primary judge’s reasons at [119], where his Honour held that, if released, the appellant would very likely reoffend. This was because in those circumstances, even if the trial judge otherwise erred, this Court, in the re-exercise of the discretion, could reach no different conclusion. He further contended that the finding in [119] related to no statutory test and was not consistent with the expert evidence.

98. The State contended that, while he had challenged the finding in [119], the appellant had not challenged the trial judge’s findings at [91], [93] and [98], which it submitted underlay the finding in [119]: see above at [32]-[34]. The appellant, in response, contended the finding in [119] went beyond the findings in the three earlier paragraphs. In particular, he contended that the finding in [91] was relevant only if the appellant went untreated and that the findings in [93] and [98] related only to whether the appellant could reoffend, not whether he would.

Consideration – ground 2

99. In the Court’s opinion, ground 2 should be rejected.

100. We do not accept the appellant’s argument, in ground 2(a), that his Honour simply proceeded from his finding at [108] that the appellant was a “high risk sex offender” within the meaning of s 5B(2) to a determination, at [109]-[113], that a continuing detention order be made without giving any consideration to whether, in the exercise of his discretion, he ought not make such an order. It is apparent from his Honour’s reasons at [109], both that he understood that there was a discretion not to make an order at all and that he concluded that this was not a case where he would not make an order. The reasons for not exercising the discretion in that manner, were, as his Honour stated, the same as those that caused him to determine that the appellant was a serious sex offender. The fact that the reasons were the same does not invite, let alone require, the conclusion that his Honour did not separately consider the exercise of the discretion.

101. Further, in the hearing below, the primary judge asked counsel for the appellant if she wished to be heard against the discretion to make one or other of the available orders under the Act. Counsel replied that she did not. We consider that the absence of detailed reasons in respect of whether the discretion ought not to be exercised must be understood in that context.

102. By ground 2(b), the appellant contended that his Honour failed to have regard to the appellant’s rehabilitation in determining whether to make an order under the Act and what order to make. It was submitted that, rehabilitation being an object of the legislation, his Honour was required to take it into account.

103. In dealing with this ground of appeal, it can be noted at the outset that the appellant accepted that the evidence did not establish that his rehabilitation would be impeded if a continuing detention order was made. Rather, he argued that the appellant’s rehabilitation would be enhanced by the making of an extended supervision order.

104. It should also be noted at the outset that the extent to which the question of the appellant’s rehabilitation was in issue in the court below is debatable. During the course of argument before the primary judge, after referring to rehabilitation as being a subsidiary purpose of the Act, his Honour received a negative response from counsel for the appellant to the question:

“… I am not being called upon to determine, in a direct sense, what setting in the community or custody, or the community under a very strict [extended supervision order], would best promote Mr Davies rehabilitation … am I?”

105. In his reasons, his Honour did not expressly discuss the question of rehabilitation. Nonetheless, the whole purpose of his Honour considering the evidence of what psychiatric and other treatment, including anti-libidinal medication, the appellant needed was directed to what his needs were to control his offending behaviour. The control of offending behaviour relates to a person’s rehabilitation as much as it does to the protection of the community.

106. Accordingly, and having regard to the manner in which the case was run at first instance, we do not consider that the appellant has established that there was any error in his Honour having failed to make express reference to the appellant’s rehabilitation.

105. By ground 2(c), the appellant contended that his Honour failed to consider the serious consequences for the appellant of being detained beyond his sentence. This aspect of the appellant’s challenge can be disposed of immediately. His Honour at [37] of Davie (No 1) stated:

“I have reflected carefully on the significance of detaining a citizen in custody even after a lengthy sentence has fully expired. I have also reflected carefully upon whether an [interim supervision order] subject to the conditions proposed would suffice to fulfil the purposes of the Act in this case.”

108. His Honour then, in both Davie (No 1) at [38] and in Davie (No 2) at [94], referred to the “unusual circumstances of this case”. It is clear, from the context of his Honour’s overall remarks that those unusual circumstances included what he saw as the particularly strong risk of re-offending posed by the appellant and that those circumstances justified the very serious step of keeping the appellant in custody beyond the period of the sentence that was imposed rather than make an extended supervision order.

109. Finally, we consider that there is merit in the State’s submission that a challenge to his Honour’s reasons at [119] was unsustainable in the absence of any challenge to [91], [93] and [98]. But in any event, this was a case where the evidence justified making a continuing detention order.

Conclusion

110. The foregoing are the reasons for the making of orders by the Court on 8 April 2016 that leave to appeal should be granted but the appeal dismissed. It only remains to note that, in accordance with s 23 of the Act, it was appropriate that no order for costs be made in this matter.

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Decision last updated: 03 May 2016