State of New South Wales v Davie

[2015] NSWSC 413

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v Davie [2015] NSWSC 413
Hearing dates:	13 April 2015
Decision date:	14 April 2015
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) Pursuant to section 15(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”): (a) The Court appoints psychiatrists Dr Jeremy O’Dea and Dr Andrew Ellis to conduct separate examinations of the defendant and to furnish reports to the Court on the results of those examinations by 25 May 2015; and (b) The defendant is directed to attend those examinations. (2) Pursuant to section 18A of the Act, the defendant is subject to an interim detention order from 12:01 am on 26 May 2015 for a period of 28 days. (3) Pursuant to section 20(1) of the Act, a warrant is to issue for the commitment of the defendant to a correctional centre for the duration of Order 2. (4) The matter is listed for mention before the Common Law Registrar at 9 am on 21 April 2015. (5) The Commissioner for Corrective Services is requested to facilitate the attendance of the defendant at any final hearing by way of audio-visual link. (6) The plaintiff is to file and serve any further evidence and any written submissions upon which it intends to rely at the final hearing by no later than 18 June 2015. (7) The defendant is to file and serve any further evidence and any written submissions upon which he intends to rely at the final hearing by no later than 25 June 2015. (8) The parties are to notify each other by 27 June 2015 of any witnesses whom they each require for cross-examination at the final hearing. (9) Access to the Court’s file in respect of any document shall not be granted without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to be given an opportunity to be heard. (10) The parties have liberty to restore the matter to the list upon one day’s notice.
Catchwords:	CIVIL LAW – applications pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – test to be applied – application for preparation of mandatory expert reports – whether interim detention order or interim supervision order should be made
Legislation Cited:	Crimes (High Risk Offenders) Act 2006, s 5(1)(a)(i), 5B, 5D(1), 5G(1), 7(4), 9, 10A, 15(4), 17, 18A Criminal Procedure Act 1986 (NSW)
Cases Cited:	Attorney General (NSW) v Hayter [2007] NSWSC 983 State of New South Wales v Atkins [2013] NSWSC 1988 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Jeffrey Wayne Davie (Defendant)
Representation:	Counsel: H Bennett (Plaintiff) S Hall (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid New South Wales (Defendant)
File Number(s):	2015/84503

Judgment

Précis of evidence

1. Jeffrey Wayne Davie (the defendant) was born in October 1968, and accordingly is 46 years of age. His upbringing up to the age of eight years was unremarkable. Regrettably, at that time, he was introduced to sexual activity by another young boy. Through that young boy, the defendant also met two adults, who sexually assaulted him. Furthermore, another person sexually assaulted him when he was aged 14 years. From that time on, the defendant has exhibited a chronic proclivity to sexually assault young boys.

2. In 1984, at the age of 16 years, he was before the Children’s Court for one count of indecent assault on a male. The facts in a nutshell were that he had handcuffed a six year old boy to a fence and thereafter performed oral sex on him. The Children’s Court Magistrate admonished and discharged the defendant, and asked that he continue receiving treatment from a doctor.

3. The defendant did not seek treatment. Nor did he abstain from sexually assaulting children. To the contrary, some years later he pleaded guilty in the District Court at Newcastle to a very large number of sexual offences committed against ten young boys between the years of 1985 and 1992. Some of them were contained on an indictment; many of them were contained on a Form 2 (as it was then called) pursuant to the Criminal Procedure Act 1986 (NSW).

4. Some of the offences involved penile/anal sexual intercourse with boys as young as four. Many of them featured the defendant inveigling himself into the affection and trust of families with young boys, or the boys themselves. The defendant had access to the victims by way of his work as a babysitter, and his involvement in various community organisations such as the Boy Scouts. One is entitled to infer that that involvement was designed to ensure that he was in contact with children.

5. Many of the offences were the subject of a degree of planning, and included the defendant taking photographs of his crimes. They were detected when an employee of a film development service raised the alarm.

6. As I have said, the defendant pleaded guilty to all offences. On 19 August 1992, he was sentenced by his Honour Judge Freeman to a total head sentence of imprisonment of 12 years to date from 19 August 1992, with a total non-parole period of eight years to expire on 18 August 2000. The defendant was aged 23 years when he was sentenced.

7. Mr Davie was not released on parole until March 2003. His total sentence expired on 18 August 2004. During the period that he was on parole, he was living with his parents in the Newcastle area. His mother supervised him very stringently, and it seems that he was literally never out of her sight. The defendant did not offend or otherwise breach parole during that period of conditional liberty.

8. However, on 25 May 2005 (that is, nine months after the expiry of his parole period) the defendant was at a social function organised by the local State Emergency Service, with which he was involved. Also present was a nine-year-old boy, who was in the company of his mother. The Crown case at a subsequent trial in the District Court at Newcastle was that the defendant persuaded the boy to accompany him into the men’s toilets. There the defendant performed oral sex on the victim, and committed other sexual crimes. The Crown case, based upon immediate complaint by the victim, his observed demeanour when leaving the toilets, and the finding of not only saliva on the underpants of the victim but also a DNA profile at the same location that was identical to that of the defendant, was to my mind very close to overwhelming. Despite that, neither the defendant nor his mother has ever accepted the verdict of the jury of guilty on all counts.

9. His Honour Judge Coolahan imposed a total head sentence of imprisonment for ten years to date from 27 May 2005, with a total non-parole period of six years. The non-parole period expired many years ago, on 26 November 2011, and the defendant has been repeatedly refused parole since that time. The total head sentence will expire absolutely on 26 May 2015.

10. The defendant has never constituted a management problem whilst in custody. Indeed, he has been spoken of as a good worker. He does not suffer from problems with prohibited drugs or alcohol. He is not psychologically or psychiatrically disturbed, apart of course from his sexual attraction to children. Although not overly intelligent, the defendant is not intellectually disabled.

11. To be weighed against those attributes of the defendant conducive to his success in the community in the future is his approach to his criminal behaviour. It is true that the defendant has had the benefit of some therapeutic programs in custody. But to my mind the most that can be said in his favour is that his treatment has been very incomplete.

12. He engaged in two preparatory programs some years ago, neither of which focused with specificity upon sexual offending. He also engaged in the well-known program for sex offenders, the Custody Based Intensive Treatment Program (“CUBIT”), for a number of months. Unfortunately, that engagement culminated in him being discharged from the program because, in short, of his lack of commitment to it. That discharge took place as long ago as 2 August 1999; that is, many years before the commission of the offences of May 2005.

13. According to a report placed before me, when asked recently how he would avoid offending against children if released to conditional or unconditional liberty, the defendant put forward some simplistic strategies, such as physically keeping away from them. Indeed, some of the things he said in that regard suggest that he remains strongly sexually attracted to children.

14. Contrary to the submissions of his counsel, Ms Hall, I respectfully assess the defendant as basically untreated in custody, as a result of his own attitudes. I also assess him 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.

15. To complete my brief conspectus of the evidence placed before me, I received a report that detailed the ways in which the defendant could be supervised in the community if he were subject to conditional liberty. As well as that, Ms Donaldson, a psychologist, recently prepared a report with regard to the risk of the defendant committing a sexual offence if he were released into the community. That assessment was based upon both a static and a dynamic analysis. As one would expect in the circumstances that I have outlined, the risk of the applicant committing a serious sexual offence in the future has been assessed as being high.

Nature of proceedings

16. It is in that context that the State has sought, pursuant to ss 15(4) and 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”), mandatory psychiatric examinations of the defendant. The State has also sought an interim detention order (“IDO”) for a period of 28 days; in the alternative, an interim supervision order (“ISO”) is sought.

Submissions of defence counsel

17. Ms Hall did not dispute the submission of the State that the offence of sexual intercourse committed on 25 May 2005 constituted a serious sexual offence for the purposes of s 5(1)(a)(i) of the Act. Nor did she dispute that the other statutory preconditions for the making of the various orders pressed at the preliminary hearing (apart, of course, from the central test itself) had been established.

18. Her position was that, on the evidence, no order should be made. In the alternative, she submitted that the mandatory examinations should be ordered, along with an ISO, but that I would not regard an IDO as called for on the evidence.

19. She did not dispute that the test for making an IDO or an ISO is contained in ss 5B, 18A, and 10A of the Act.

20. Section 5B of the Act is 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.

21. Section 18A of the Act is as follows:

18A   Interim detention order—high risk sex offender

The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court:

(a)  that the offender’s current custody (if any) will expire before the proceedings are determined, and

(b)  that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order.

22. Section 10A is as follows:

10A   Interim supervision order—high risk sex offender

The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court:

(a)  that the offender’s current custody or supervision will expire before the proceedings are determined, and

(b)  that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order.

(It can be seen that s 18A(b) is relevantly identical to s 10A(b)).

23. She accepted that the test can be understood to be akin to the test applied by Magistrates in determining whether a prima facie case has been made out in the proceedings: see Attorney General (NSW) v Hayter [2007] NSWSC 983 at [6]; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].

24. As for the question of whether an ISO or an IDO should be imposed (if, contrary to her submission, I were to be satisfied that the test had been made out at all), she accepted that there is no analogue of ss 5D(1) and s 5G(1) that applies to interim orders, as noted by Rothman J in State of New South Wales v Atkins [2013] NSWSC 1988 at [35]. Still and all, she submitted that it is inconceivable that I could impose an IDO if I were satisfied that an ISO would sufficiently fulfil the purposes of the Act. That submission had three bases.

25. First, it can be seen that the operative sections are founded on the word “may”, which connotes a discretionary decision. That discretion, she submitted, could be informed by the question of whether an IDO, as opposed to an ISO, is necessary.

26. Secondly, she submitted that, to the extent that the test that I must apply is indirectly based upon whether a final CDO or ISO could be made, then s 5D(1), which must be considered in the context of final orders, applies indirectly to this preliminary phase as well.

27. Thirdly, as a matter of fundamental principle, she submitted that it could hardly be the case that I could, pursuant to an Act of Parliament, deprive a citizen of his or her liberty completely, unless I were satisfied that conditional liberty would not sufficiently fulfil the purposes of that Act.

28. I accept the submission of counsel for the defendant that, even though there is no analogous provision that applies to interim orders in the way that ss 5D and 5G apply to final orders, nevertheless I would not make an IDO unless I were satisfied that an ISO would not fulfil the primary purpose of the Act of ensuring “the safety and protection of the community”.

Test made out for making orders at preliminary hearing?

29. In determining the basal question, I have had indirect regard to the factors contained in ss 9 and 17 of the Act that are pertinent at this stage.

30. I consider that the State has amply established that the material placed before me would, if proved, justify the making of an ESO or a CDO. I say that because, for two decades between 1984 and 2005 (when he was last at liberty), the defendant has demonstrated that he will sexually assault children. He has not been deterred in the past by lengthy sentences, or the obloquy that attaches to convictions for such offences.

31. Furthermore, it is not just a matter of the evidence showing that the risk of the defendant offending in such a way again is very high. More fundamentally, the evidence raises real questions about whether the defendant has any true understanding of the gravity of his conduct. Indeed, there is at the least a suggestion in the evidence of the defendant being recalcitrant, in the sense of not even accepting that his behaviour is wrong.

32. Having come to that view, the legislation mandates that I am to order mandatory examinations of the defendant.

Interim detention order or interim supervision order appropriate?

33. That test having been established, in the circumstances that I have summarised there is no question of me exercising any discretion (even assuming that one may be available) to impose neither an IDO nor an ISO. The only question is which one of those restrictions on liberty should be imposed upon the defendant.

34. Counsel for the defendant submitted that an ISO would suffice. She submitted that the evidence shows that the defendant would be living at the Community Offender Support Program (“COSP”) attached to Long Bay Gaol once released. He would be subject to rigorous restrictions on his liberty, in accordance with the schedule of conditions filed with the summons of the State. They would include complying with a strict night-time curfew; being subject to full-time electronic monitoring; having frequent contact with supervising officers; and engaging in psychological counselling. She submitted that the defendant in the first few weeks after his release would be busy attending to administrative chores such as arranging social security payments and so forth.

35. I accept that the defendant would be supervised closely subject to any ISO. I also accept that his liberty would be substantially curtailed by an ISO that has attached to it the conditions proposed by the State.

36. But it is noteworthy that the evidence does not suggest that the defendant would be able to be supervised 24 hours a day, or anything like it. Inevitably, the defendant would be moving around alone in the community during daylight hours. It is also noteworthy that the deplorable conduct that constituted the offences of May 2005 against a nine-year-old boy was able to be committed at a convivial social function at which the mother of the victim was present. Regrettably, the defendant 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 offences at the social function in a matter of minutes. I am well satisfied that, whether acting in a premeditated or opportunistic way, the defendant could inflict great damage upon a child in a similar period of time in the future, and that he could do so even if subject to a very rigorous ISO.

37. 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 ISO subject to the conditions proposed would suffice to fulfil the purposes of the Act in this case.

38. 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 IDO is appropriate.

Ancillary orders

39. Finally, if (contrary to the submissions of counsel for the defendant) I were minded to make some or all of the orders sought by the State, I was also asked to make various ancillary orders by consent. Some were directed towards the expeditious resolution of the matter at a final hearing; others towards the protection of privacy of certain persons. In light of the joint position of the parties, and my own satisfaction that the orders are appropriate, I am content to make ancillary orders substantially similar to those contained in the amended short minutes of order provided to my Associate.

Orders

40. Accordingly, I make the following orders:

1. Pursuant to section 15(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

1. The Court appoints psychiatrists Dr Jeremy O’Dea and Dr Andrew Ellis to conduct separate examinations of the defendant and to furnish reports to the Court on the results of those examinations by 25 May 2015; and

1. The defendant is directed to attend those examinations.

2. Pursuant to section 18A of the Act, the defendant is subject to an interim detention order from 12:01 am on 26 May 2015 for a period of 28 days.

3. Pursuant to section 20(1) of the Act, a warrant is to issue for the commitment of the defendant to a correctional centre for the duration of Order 2.

4. The matter is listed for mention before the Common Law Registrar at 9 am on 21 April 2015.

5. The Commissioner for Corrective Services is requested to facilitate the attendance of the defendant at any final hearing by way of audio-visual link.

6. The plaintiff is to file and serve any further evidence and any written submissions upon which it intends to rely at the final hearing by no later than 18 June 2015.

7. The defendant is to file and serve any further evidence and any written submissions upon which he intends to rely at the final hearing by no later than 25 June 2015.

8. The parties are to notify each other by 27 June 2015 of any witnesses whom they each require for cross-examination at the final hearing.

9. Access to the Court’s file in respect of any document shall not be granted without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to be given an opportunity to be heard.

10. The parties have liberty to restore the matter to the list upon one day’s notice.

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Amendments

15 April 2015 - [40] (9) typographical error

Decision last updated: 15 April 2015