State of New South Wales v Davis

[2008] NSWSC 862

CITATION:	State of New South Wales v Davis [2008] NSWSC 862
HEARING DATE(S):	20 August 2008
JUDGMENT DATE :	20 August 2008
JUDGMENT OF:	Price J at 1
EX TEMPORE JUDGMENT DATE:	20 August 2008
DECISION:	Orders commence at paragraph 15.
CATCHWORDS:	Serious sex offender - application by State of New South Wales for revocation of continuing detention order - Community Offender Support accommodation - accommodation available - requirement for electronic monitoring - stringent conditions of continuing supervision imposed.
LEGISLATION CITED:	Crimes Serious Sex Offender Act 2006 s 17(1), s 17 (1)(a), s 17(5), s 17(11), s 20(1)
CATEGORY:	Principal judgment
PARTIES:	State of New South Wales Steven Roy Davis
FILE NUMBER(S):	SC 11864 of 2008
COUNSEL:	Mr D Kell (Plaintiff) Mr A Haesler SC and Mr S.J Smith (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISON

PRICE J

20 August 2008

11864 of 2008 State of New South Wales v
Steven Roy Davis


EX TEMPORE JUDGMENT

1 PRICE J: These reasons are to be considered in conjunction with my judgment of 24 June 2008 (the Judgment).

2 On 24 June 2008 I made the following orders:

1. Pursuant to s17(1) of the Crimes (Serious Sex Offenders) Act the defendant be detained in a correctional centre for four months from today.

2. Pursuant to s 20(1) of the Act a warrant issue for the
committal of the defendant to the correctional centre for the
duration of the continuing detention order referred to in order 1.

3. Liberty to apply on 3 days notice.

4. Subject to any other application made by either party
beforehand the balance of the summons be stood over for

mention on 22 September 2008.

3 At that time the parties had proposed that the orders be made and the balance of the summons be stood over for mention on 22 September 2008, as it was anticipated that by September 2008 a Community Offender Support Accommodation (COSP) facility at Malabar would be open. The COSP Centre is now open, and a notice of motion has been filed by the State of New South Wales, the plaintiff.

4 The notice of motion seeks the following orders:

1. An order pursuant to section 19(1) of the Crimes (Serious Sex Offenders) Act 2006 that the continuing detention order made by me on 24 June 2008 be revoked with effect on and from 20 August 2008.

2. Pursuant to section 17(1)(a) of the Act that an extended supervision order be made in respect of the defendant for a period of five years to commence on the revocation of the continuing detention order, and pursuant to subsection 17(5) and s 11 of the Act directing compliance by the defendant with the conditions set out in the schedule to the notice of motion.

5 Mr Haesler SC, who appears for the defendant, joins in the application subject to some argument as to two of the conditions set out in the schedule.

6 I do not propose repeating what is detailed in the judgment save to say that I was satisfied, and continue to be satisfied to a high degree of probability, that the defendant is likely to commit a further serious sex offence if he is not kept under supervision.

7 In the Judgment I concluded at [55] that on the evidence then available I was satisfied to a high degree of probability that adequate supervision would not be provided by an extended supervision order. A risk management program (RMP) had been developed which was annexure “A” to the affidavit of Philip Ruse sworn 16 June 2008. Fundamental to the proposed RMP was suitable accommodation. Despite many enquiries by Mr Ruse, suitable accommodation could not be found. It was, however, envisaged that the defendant would reside at the COSP Centre at Malabar when it became available. The COSP Centre will be staffed 24 hours a day, seven days a week, with the aim of providing a high level of support and structure for the residents.

8 I am satisfied that the COSP Centre will provide the internal support structures necessary to reduce the defendant's risk of non-compliance and relapse into drug, alcohol and sexual re-offending.

9 In the Judgment at [46-47] I referred to Dr Roberts’ opinion that ongoing incarceration was not expected to better prepare the defendant for release into the community and, as such, his long-term rehabilitation was best served by a support system of carefully planned and monitored supervision within the community. Dr Roberts’ treatment recommendations are found at page 45 of his report. He was of the opinion that ongoing incarceration solely for the purpose of CUBIT was of dubious benefit.

10 I referred at [48] to Dr Samuels’ opinion that targeting the issues of mental illness and substance abuse would be the most productive strategies to reduce the future risk of offending. Limiting the defendant's access to substances may be achieved, Dr Samuels stated, in a structured, highly supervised setting and it would be important that if, the defendant did manage to gain access to marijuana or alcohol, there was a capacity to quickly intervene and limit the potential consequences of such use.

11 The proposed RMP addresses the issues which have been identified. The plan provides support and supervision for the defendant upon his release into the community.

12 In an affidavit sworn 19 June 2008 the defendant understands that if he “is going to be let out of gaol, the court will give him a lot of rules which [he] must stick to on the outside”. His solicitor has explained to him that “if [he] breaks the rules [he] will be likely to end up back in gaol again”. He makes reference to his concern about the ankle bracelet. He informs the Court that if the court requires him to wear an ankle bracelet he will do so. He is concerned that people might look at it, ask what it is and treat him differently because of it.

13 Before a continuing detention order may be made the Court must be satisfied, to a high degree of probability, that adequate supervision will not be provided by an extended supervision order. The plaintiff does not ask for a continuing detention order. The plaintiff asks the Court to make an extended supervision order in the circumstances of the defendant. I propose to do so.

14 An issue which has arisen is the necessity for the reporting and monitoring obligations detailed in paragraphs 8 and 9 of the annexure. It has been argued that the requirement for electronic monitoring, so far as the defendant is concerned, will create a lack of flexibility and create further obligations for him, making it more likely that he will not comply and thereby fail. It must be remembered that I am satisfied, to a high degree of probability, that this defendant is likely to commit a further serious sex offence if he is not kept under supervision. The safety of the community in these circumstances must be given more weight. Electronic monitoring provides an additional tool to help manage and monitor the defendant whose compliance with court orders and parole in the past has been poor. Electronic monitoring, in my opinion, may furthermore provide some encouragement to the defendant to comply with all the conditions of the proposed RMP.

15 I make the following orders:

1. Pursuant to s 19(1) of the Crimes (Serious Sex Offenders) Act 2006 (“the Act”) the continuing detention order made by the Court on 24 June 2008 be revoked with effect on and from 4pm 20 August 2008.

2. Pursuant to s 17(1)(a) of the Act, make an extended supervision order in respect of the defendant for a period of 5 years, to commence on and from 4pm 20 August 2008 and pursuant to ss 17(5) and 11 of the Act, direct compliance by the defendant with the conditions set out in the Schedule to this Notice of Motion which are:

Schedule

EXTENDED SUPERVISION ORDER: CONDITIONS OF RISK MANAGEMENT PLAN APPLICABLE TO STEVEN ROY DAVIS

Oversight

Note that oversight of the risk management plan is to be administered by a Departmental supervising officer of the Department of Corrective Services (the Department) being appointed by the Department to manage his supervision.

Accommodation

1. For the duration of the order the defendant must reside at accommodation approved by the Commissioner of Corrective Services.

Note :

(a) It is envisaged that the defendant should reside at the Community Offender Support Program (COSP) Centre at Malabar.

(b) If the COSP centre is not available when the defendant is released from custody on an extended supervision order, it is envisaged that the defendant will reside at other supported accommodation approved by the Commissioner such as that provided by the Richmond Fellowship, New Horizons, NEAMI or the Cana Community until such time as he can transfer to the COSP Centre. Any of these accommodation options must have 24 hours staffing available to him at time of release.

(c) At the conclusion of any period in which the defendant resides at the COSP Centre, it is envisaged that he will transfer to other accommodation arranged by the Departmental supervising officer and approved beforehand by the Commissioner.

2. The defendant must be at his approved address between 9pm and 6am unless his presence at another place during those hours has been approved by his Departmental supervising officer.

3. Should no suitable accommodation be available at the time of release, the defendant must immediately submit to an examination conducted by the Community Forensic Mental Health Service (CFMHS) to assess whether, at the time of release, the defendant’s mental health is such that the defendant should be detained in a mental health facility pursuant to section 19 of the Mental Health Act 2007 or whether an application under section 51 of the Mental Health Act for a Community Treatment Order should be made.

Reporting and monitoring obligations

4. The defendant must accept the supervision and guidance of the Probation and Parole Service (which includes the Community Compliance Group) for as long as necessary, as determined by the Department.

5. The defendant must report personally once a week to the responsible Departmental supervising officer and otherwise as directed by that officer.

6. The defendant must comply with any reasonable direction given by the Departmental supervising officer or any Departmental officer who may from time to time be allocated to the defendant’s case.

7. The defendant must be of good behaviour and must not, for the period of the supervision order, commit any offence.

8. The defendant must wear electronic monitoring device(s) as directed by the Departmental supervising officer, and not tamper with or remove the electronic device(s).

9. The defendant must inform the Departmental supervising officer of his movements in advance on a daily basis and must obtain prior approval from the Departmental supervising officer for any proposed change.

10. The defendant must accept visits at his approved accommodation, including visits without prior notice, by any Departmental supervising officer.

11. The defendant must not undertake employment other than that which has been approved by the Commissioner.

12. The defendant must not leave the State of New South Wales without the written permission of the Commissioner.

13. (a)The defendant must not possess or consume any alcohol (including any alcohol-based products such as methylated spirits or mouth wash) or illicit drugs;

(b) The defendant must not abuse prescription medication or other forms of medication;

(c) The defendant must submit to drug and alcohol testing as directed by the Departmental supervising officer.

14. The defendant must not go to any licensed premises, including but not limited to hotels, bars, licensed clubs and racecourses.

15. The defendant must not associate with any persons specified by the Departmental supervising officer

16. Should the defendant propose to enter into a relationship with another person, he must notify the Departmental supervising officer at the earliest opportunity. The Departmental supervising officer may disclose the defendant’s offence history to such other person.

17. The defendant must not change his name from Steven Roy Davis without the prior approval of the Departmental supervising officer.

18. The defendant must not, without the approval of the Departmental supervising officer, change his facial appearance (including facial hair) or the colour of his hair and must not alter the length of his hair to the extent that he cannot be easily recognised.

19. If the defendant’s proposed change of appearance is approved, he must allow himself to be photographed by or on behalf of the Departmental supervising officer.

Treatment obligations

20. The defendant must accept a comprehensive assessment (and further assessments from time to time) including medical examination, pathological investigations, psychometric testing and radiological imaging to be conducted by CFMHS or the AMHS, to determine what is necessary for treatment, including control, of the defendant’s psychiatric condition, potential for alcohol and/or drug abuse and potential for sex offending.

21. The defendant must accept psychological and psychiatric treatment as may be provided by an Area Health Service, in consultation with the CFMHS, including counselling, psychological therapy and any anti-psychotic or other psychiatric medication as indicated.

22. Without limiting paragraph 21 above:

(a) The defendant must accept sex drive reduction medical treatment, if prescribed by a medical practitioner, as may be provided by an Area Health Service, in consultation with CFMHS such as anti-libidinal treatment;

(b) The defendant must accept medical treatment for his alcohol and/or drug use disorder, if prescribed by a medical practitioner, as may be provided by an Area Health Service, in consultation with CFMHS such as alcohol craving treatment.

23. The defendant must attend regular medical consultations, physical examinations, pathology testing, and medical imaging as directed by the Area Health Service in consultation with CFMHS.

24. The defendant must attend consultations with the Area Health Service or CFMHS, at such a frequency, venue and time as directed by his treating clinicians.

25. The defendant must accept such psychological intervention by psychologists employed by the Department as may be offered to him.

26. The defendant must engage a general practitioner, he must notify the Departmental supervising officer of the identity and address of the general practitioner and provide consent to the disclosure of confidential medical information as between the general practitioner and any treating psychologist and/or psychiatrist and the Departmental supervising officer.

27. The defendant must disclose to the Department the identity of any other medical or mental health practitioner that he consults.

Disclosure of information

28. The defendant must waive his right to the confidentiality of all information disclosed by him during treatment to his treating doctors (including any specialist) and any psychologist.

Note :
(a) The Departmental supervising officer and other responsible DCS officers may access all relevant information regarding the defendant’s progress, which may include confidential medical information disclosed in the course of his treatment.
(b) All such information may be shared between and/or provided to the Departmental supervising officer, the Department, the defendant’s employer, CFMHS, any treating AMHS, the defendant’s general practitioner and any treating psychologist or psychiatrist.

Review obligation

29. The defendant must attend a six-monthly meeting with all agencies/parties in attendance if required by the Departmental supervisor at which point the Management Plan may be reviewed and adjusted if considered appropriate.

NOTE:

It is intended that:

(i) The appointed Departmental supervising officer may take steps, as he or she considers appropriate, to ensure that all agencies/parties involved in the defendant’s supervision order, communicate to him or her (and to each other) any significant concerns regarding risk.

(ii) The appointed Departmental supervising officer will phone the relevant agency representative overseeing the defendant’s living arrangements, on a weekly basis and meet personally with that representative monthly (or at times as otherwise determined by the Departmental supervising officer).

(iii) The appointed psychologist and psychiatrist will be requested to report to the appointed supervising representative of the Department from time to time as they consider appropriate and be available for case management issues when required.
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