State of New South Wales v Davis (Preliminary)

[2020] NSWSC 754

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Davis (Preliminary) [2020] NSWSC 754
Hearing dates:	9 June 2020
Date of orders:	09 June 2020
Decision date:	18 June 2020
Jurisdiction:	Common Law
Before:	Hoeben CJ at CL
Decision:	(1) An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (the Act): (a)   appointing two qualified psychiatrists, psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; (b)   directing the defendant to attend those examinations. (2)   An order: (a) pursuant to s 10A of the Act, that the defendant be subject to an Interim Supervision Order (the interim supervision order); (b)   pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days; and (c)   pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in Annexure “A” to this judgment. (3)   An order that when the two qualified experts have been identified and an appointment is made for the defendant to see them that included in the opinions, which they give, should be an opinion as to whether they see any potential conflict between the standard form conditions annexed to this judgment; and the conditions which have been imposed by the CTO. (4)   An order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party 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 allow them an opportunity to be heard in relation to the application for access.
Catchwords:	HIGH RISK OFFENDER matter – preliminary application for Interim Supervision Order – defendant currently in custody – custody will expire before final determination of proceedings – defendant suffering from schizophrenia and alcohol and drug addiction problems – statutory threshold criteria established – standard form conditions to apply – Interim Supervision Order made.
Legislation Cited:	Child Protection (Offenders Prohibition) Orders Act 2004 (NSW) – ss 13, 16 Child Protection (Offenders Registration) Act 2000 (NSW) Crimes Act 1900 (NSW) – ss 61, 91,113 Crimes (High Risk Offenders) Act 2006 (NSW) – ss 3, 4, 5, 7, 9, 10, 17 Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	Cornwall v Attorney General for NSW [2007] NSWCA 374 State of NSW v Ceissman [2018] NSWSC 508 State of NSW v Colquhoun [2018] NSWSC 1012 State of NSW v Davis [2008] NSWSC 490 State of NSW v Davis [2008] NSWSC 664 State of NSW v Davis [2008] NSWSC 862 State of NSW v Lynn [2013] NSWSC 1147 State of NSW v Thomas (Preliminary) [2011] NSWSC 118
Category:	Principal judgment
Parties:	State of New South Wales – Plaintiff Stephen Roy Davis – Defendant
Representation:	Counsel: J Davidson – Plaintiff A Hughes – Defendant   Solicitors: Crown Solicitor for NSW – Plaintiff Legal Aid NSW – Defendant
File Number(s):	2020/156385

JUDGMENT

1. HIS HONOUR:

Nature of proceedings

By a Summons filed 25 May 2020, the State (plaintiff) seeks orders against Stephen Roy Davis (defendant) under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. At the preliminary hearing, the plaintiff sought the following orders:

1. an order under s 7(4) of the Act:

1. appointing two qualified psychiatrists, psychologists (or any combination of such persons) to conduct separate examination of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

2. directing the defendant to attend those examinations.

2. An order:

1. pursuant to s 10A of the Act, that the defendant be subject to an Interim Supervision Order (the interim supervision order”);

2. pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days; and

3. pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this Summons.

3. Ancillary relief restricting access to the Supreme Court file in this matter was also sought.

4. The preliminary hearing took place on Tuesday, 9 June 2020. At that hearing, the Court made orders as sought in the Summons with reasons to follow.

5. These are the reasons.

6. Annexed to this judgment and marked “Annexure B” is a glossary of the technical terminology used.

Overview

7. The defendant is 47 years old, having been born in 1972. He is presently on remand in relation to a charge laid on 14 April 2020. He was sentenced on 31 October 2019 to an aggregate sentence of 12 months imprisonment with a non-parole period of seven months commencing on 20 June 2019, in relation to:

1. one count of contravening a child protection prohibition order under s 13 of the Child Protection (Offenders Prohibition) Orders Act 2004 (NSW) (CPPO Act) to which he pleaded guilty. This offence (the child protection order offence) occurred on 20 June 2019. The child protection order offence is an offence of a sexual nature for the purposes of the Act (s 5(2)(g);

2. one count of possess child abuse material to which he pleaded guilty and for which the defendant was resentenced following breach of a Community Correction Order (CCO) made on 3 May 2019 (the child abuse material offence).

8. The defendant has also been previously convicted and sentenced as follows:

1. on 21 October 1993, the defendant was sentenced to an aggregate term of imprisonment of 8 years with a non-parole period of 5 years having pleaded guilty to:

1. one count of break and enter with intent to have sexual intercourse without consent, two counts of sexual intercourse without consent and one count of assault with an act of indecency. Those offences occurred on 23 August 1992 and involved an attack on a woman in her home at Kemps Creek where the woman lived alone. The defendant smashed in the door of the victim’s house, threatened to kill her and sexually assaulted her over a period of hours (the Kemps Creek sexual assaults);

2. one count of sexual intercourse without consent. That offence occurred on 5 October 1992 at Dunheved High School and involved a sexual assault on a teacher during which the defendant threatened to use a knife against her (the Dunheved High School sexual assault);

2. on 22 February 2007, the defendant was sentenced to 7 years imprisonment having pleaded guilty to one count of aggravated sexual assault. That offence occurred on 21 May 2001, a few months after the defendant had been released from prison, and while the defendant remained on parole. The offence involved the defendant forcing a woman off a public street in Darlinghurst into an adjacent courtyard where he choked her, threatened to kill her and sexually assaulted her (the Darlinghurst sexual assault);

3. on 3 May 2019, a CCO was made by way of sentence for the child abuse material offence. That offence occurred on 5 January 2019, when three child abuse images were found on the defendant’s mobile phone. The defendant breached a reporting condition of the CCO on 22 May 2019, and was subsequently resentenced, along with the child protection order offence on 31 October 2019 to an aggregate sentence of 12 months imprisonment with a non-parole period of seven months.

9. Each of the Kemps Creek, Dunheved High School and Darlinghurst sexual assaults involved serious sex offences, and therefore serious offences, for the purposes of the Act.

10. The defendant has a history of other convictions dating back to 1992, including driving without a license; resist arrest; larceny; high range Prescribed Content of Alcohol (PCA); possession of an illegal drug; assault and assault occasioning actual bodily harm; escape from lawful custody and behave in offensive manner in public. Some of those offences were committed while on parole.

Previous proceedings and orders under the Act

11. On 8 May 2008, Price J made an Interim Detention Order (IDO) in respect of the defendant under the Act (then known as the Crimes (Serious Sex Offenders) Act 2006). His Honours reasons summarise much of the defendant's serious criminal history to that point: State of NSW v Davis [2008] NSWSC 490 at [10]-[18].

12. On 24 June 2008, Price J made a Continuing Detention Order (CDO) in respect of the defendant for a period of four months: State of NSW v Davis [2008] NSWSC 664.

13. On 20 August 2008, Price J revoked the CDO and made an Extended Supervision Order (the 2008 ESO) in respect of the defendant for a period of five years.

14. The conditions of the 2008 ESO are set out in an appendix to his Honour's reasons: State of NSW v Davis [2008] NSWSC 862.

The defendant’s mental illness

15. The defendant suffers from schizophrenia and is presently subject to a Community Treatment Order (CTO) made under the Mental Health (Forensic Provisions) Act 1990 (NSW) with the next listing before the Mental Health Review Tribunal (MHRT) to occur on or before 12 June 2020.

16. The defendant has displayed a pattern of ceasing to take medication for his schizophrenia when not subject to supervision. The periods in which the defendant has ceased to take medication have corresponded with the defendant’s abuse of alcohol and impulsive behaviour. The defendant’s offending has occurred exclusively in periods of dysfunction due to unstable mental health and excessive alcohol use.

Application for an Interim Supervision Order

17. The Court may make an Interim Supervision Order (ISO) under s 10A if it appears to the Court that (a) the offender’s current custody or supervision will expire before the proceedings are determined, and that (b) the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.

18. In relation to the first limb, the defendant’s current sentence expires on 19 June 2020. In relation to the second limb, the threshold criteria for the making of an ESO in s 5B(a), (b) and (c) are satisfied.

19. With regard to s 5B(d), the plaintiff submits that in view of the evidence of:

1. the defendant being assessed as “well above average risk” of future sexual offending;

2. the defendant’s repeated pattern of ceasing to take medication for his schizophrenia when not subject to supervision (noting that his present CTO will expire on 12 June 2020) as a result of limited insight into his mental health and the impact of medication non-compliance on his risk of sexual violence;

3. the association between periods in which the defendant ceases to take medication with his use of alcohol and other substances;

4. the defendant’s minimisation of the impact of his use of alcohol on his behaviour and expressed desire to continue to use it;

5. the defendant’s history of impulsive behaviour and opportunistic sexual offending, involving attacks upon strangers accompanied by violence and threats of violence; and

6. the increase in risk factors demonstrated by the defendant’s 2019 convictions for possession of child abuse material and breach of his CPPO.

The Court would be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO (on the basis that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO): ss 5B, 10A(b) of the Act. I accept that submission by the plaintiff.

Operation of the Act

20. By s 3(1) of the Act, the primary object of the Act is “to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community”. A further object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation (s 3(2)). The two objects are not inconsistent.

Preliminary hearing

21. Section 15(4) of the Act provides for a preliminary hearing to be undertaken at which the Court is to consider whether the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or an ESO in relation to a defendant. The relevant threshold has been described as “similar to the requirement for a prima facie case to be made out in committal proceedings” and “not a stringent test” (State of NSW v Thomas (Preliminary) [2011] NSWSC 118 at [11] per R A Hulme J; State of NSW v Lynn [2013] NSWSC 1147 at [17]-[18] per Button J (Lynn)).

22. The Court’s task at the preliminary hearing does not require weighing up the documentation or predicting the ultimate result. It is appropriate to give weight to risk avoidance at the preliminary stage. If the relevant threshold is met at the preliminary hearing, the Court is required to order that psychiatric and/or psychological examinations be undertaken of the defendant: s 15(4). Otherwise, the plaintiff’s application must be dismissed (s 15(5)). I have applied that approach when considering the material put before me.

Interim orders

23. The Court is empowered to make an ISO by s 10A of the Act if the offender’s “current custody” will expire before the proceedings are determined and it appears to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. The test for making an ESO is found in s 5B.

24. An ISO cannot exceed 28 days but can be renewed from time to time but so as not to exceed a total period of three months (s 10C).

Threshold statutory criteria

25. The Court may make an ESO against an offender where the following elements are satisfied (s 5B):

1. the offender (as defined in s 4A) is serving or has served a sentence of imprisonment for a serious offence (i.e. either a serious sex offence or a serious violence offence) either in custody or under supervision in the community;

2. the offender is a “supervised offender”, being relevantly a person who is in custody or under supervision while serving a sentence of imprisonment for a serious offence or under an existing ISO, ESO, IDO or CDO (s 5I);

3. an application is made in accordance with Part 2 of the Act (s 6); and

4. the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a “serious offence” if not kept under supervision under an ESO (s 5B).

26. The Court can dispose of an ESO application by making an ESO or by dismissing the application. The factors listed in s 9(3) must be taken into account, together with any other matters the Court considers relevant.

27. Although the Court’s power to grant an ESO is couched in terms that the offender has served a sentence of imprisonment for a “serious offence”, when the Court then turns to consider whether the offender poses an “unacceptable risk of committing another serious offence”, that consideration is not limited to considerations of offences of the same nature as enlivened by the Court’s jurisdiction. The structure of s 5I(2) provides that a “supervised offender” or “detained offender” “is an offender” (emphasis added), which picks up the definition in s 4A (referred to above). Accordingly, provided the defendant has at some stage been convicted of a serious offence, and is currently serving a sentence of imprisonment for an offence of a sexual nature, an application can be made in respect of that person to mitigate the risk of he or she committing another serious offence. That the defendant is an offender as defined; and is detained under supervision on parole while serving a sentence for an offence of a sexual nature are stand-alone threshold requirements which must be met before the Court can consider whether he poses an unacceptable risk of committing another serious offence. It is common ground that the defendant meets these threshold requirements.

“Unacceptable risk” of committing a serious offence

28. Pursuant to s 5B of the Act, the Court may make an ESO only if satisfied to a high degree of probability that the offender poses an “unacceptable risk” of committing a serious offence if not kept under supervision. Having regard to the authorities that consider the meaning of “unacceptable risk”, the following observations may be made as to this test.

1. It was observed in Lynn that a determination of whether a particular risk is an “unacceptable” one falls to be determined in the particular statutory context in which the question arises (Lynn at [51]-[61] and [132]). The phrase “unacceptable risk” is to be given its everyday meaning within its context and having regard to the objects of the Act. Thus an evaluation of whether an offender poses an “unacceptable risk” for the purpose of the Act must be undertaken having regard to its primary protective purpose, namely to “ensure the safety and protection of the community”. In addition, s 5D provides that the Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.

2. The authorities stress the importance of not putting a gloss on the words “unacceptable risk”. A determination of whether a risk is unacceptable is an “evaluative task” to be made in the relevant circumstances and the required state of satisfaction requires the exercise of a “discretionary judgment” (Lynn at [51] and [82]). Unacceptability of a particular risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate. The Court may legitimately conclude in some situations that a person poses an “unacceptable risk” for the purposes of the statutory test, even if the likelihood of that person committing a serious offence (if not kept under supervision or in detention) is determined to be low, where consequences of the risk should it eventuate are very serious.

3. The expression “high degree of probability” in s 5B of the Act indicates that the Court must be satisfied of the existence of a relevant risk to a higher degree than would be the case if the normal civil standard of proof applied, although not to the criminal standard of beyond reasonable doubt. The “high degree of probability” does not relate to the existence of the risk or the likelihood of its manifestation, but to whether the offender poses such an unacceptable risk (Cornwall v Attorney General for NSW [2007] NSWCA 374 at [21] (Cornwall)).

4. The structure of the Act would appear to require that the Court first undertake a determination of whether an offender poses the relevant "unacceptable risk”, having regard to the relevant standard (that is, whether it could make an ESO), prior to considering whether or not it should make an ESO (having regard to the factors in s 9(3)). It is only once the Court has made a determination that an offender poses an unacceptable risk of the relevant kind that the question of whether to make an ESO is to be addressed. While it appears that the Court is not mandated to consider all of the matters referred to in s 9(3) of the Act in determining whether or not it is relevantly satisfied as to the requisite unacceptable risk (as distinct from whether or not it should make the order sought), those matters are ones that are nevertheless apt to inform the application of the test.

5. The impact of an ESO on the offender’s liberty is not properly regarded as a relevant factor in assessing “unacceptable risk”. Instead, the focus is on the assessment of factors relevant to the content of the risk itself (Lynn at [44], [55]-[58], [128]. While that matter may be open to be taken into account for the purposes of the Court’s exercise of its discretion of whether to make an ESO, at the preliminary hearing stage “discretionary factors would need to be strong before the Court, at an interim proceeding, would refuse an order, after necessarily concluding that the allegations, if proved, amounted to an unacceptable risk posed by a defendant at a highly probable level” (State of NSW v Ceissman [2018] NSWSC 508 at [38]).

Determination of whether or not to make an ESO

29. As noted above, in determining whether or not to make an ESO under the Act, the safety of the community must be the paramount consideration of the Court (s 17(2)).

30. In deciding whether or not to make an ESO, the Court must have regard to the matters in s 9(3) of the Act, in addition to any other matter it considers relevant: At this stage of proceedings, however, consideration of s 9(3)(b) does not arise as those provisions refer to the reports of the experts appointed by the Court after a preliminary hearing under s 7(4).

31. The other matters raised by s 9(3) are discussed in the following analysis, commencing with the defendant’s criminal history, which provides a relevant context for the remaining matters.

Matters relevant to the application for an extended supervision order

Prior criminal history: s 9(3)(h)

The Kemps Creek sexual assaults – 22/23 August 1992

32. The Kemps Creek sexual assaults led to the defendant pleading guilty to:

1. one count of break and enter with intent to have sexual intercourse without consent, contrary to s 113 of the Crimes Act 1900 (NSW);

2. two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act;

3. two counts of attempt to have sexual intercourse without consent, contrary to s 61I of the Crimes Act, and

4. one count of assault with an act of indecency contrary to s 61L of the Crimes Act.

33. The Kemps Creek sexual assaults were summarised by Price J as follows:

“The defendant’s serious sexual offending commenced on 23 August 1992 when he attacked a woman on her 5 acre property at Kemps Creek where she lived alone. He smashed the door of the victim’s house in, threatened to kill her, and then sexually assaulted her.” (State of NSW v Davis [2008] NSWSC 490 at [10]).

34. A report of Narcisca Sutton, Senior Specialist Psychologist, of 11 March 2007 recounted the following information from the statement of the victim of the Kemps Creek sexual assaults:

“[On] the night of the 22nd of August 1992 [the victim] was disturbed by her dogs barking at an intruder. Mr Davis asked to be let in, claiming to be “John”, a neighbour, and stating he wanted to talk about religion. After pleading to be let in for over half an hour Mr Davis eventually broke in by smashing the door. The victim offered him a coffee and engaged on a religious discussion with him, in an attempt to calm him down. However he eventually subjected her to a series of sexual assaults, lasting several hours, including attempted vaginal intercourse, digital penetration and fellatio. He prevented the victim from leaving the house, even to use the toilet which was outside. At one stage, when the victim reminded him he had promised her he would leave after a certain event (he had told her “I'm going to blow soon and then I’ll go”), he allegedly responded: “my word means nothing. I am a demon”. The victim commented that the offender appeared intoxicated.”

35. Ms Sutton’s report records the defendant as having said “I broke into her house cause she was alone, I tried to f--- her too”.

Dunheved High School sexual assault – 5 October 1992

36. The defendant pleaded guilty to one charge of sexual intercourse without consent contrary to s 61I of the Crimes Act in respect of this episode.

37. The Dunheved sexual assault was summarised by Price J as follows:

“On 5 October 1992 the defendant sexually assaulted an agriculture teacher at St Marys during which he threatened to use a knife against her. The attack took place at 7am when the victim was cleaning out some sheds at Dunheved High School.”

38. Ms Sutton’s report recorded that the defendant said the following to an arresting officer in 1993:

“I’m sick of the criminal world, it’s shit. I just want to hand myself in. Youse heard about that rape at the school ... Dunheved, the one with the teacher, I just grabbed her. There was a woman in the field and I grabbed her, I tried to f--- her but I made her pull me off, she was f---en scared.”

39. The defendant has reported believing that he was possessed by a demon at the time of the Kemps Creek sexual assaults and the Dunheved High School sexual assault and of wanting to kill the victims.

Darlinghurst sexual assault – 21 May 2001

40. The Darlinghurst sexual assault led to the defendant pleading guilty to one count of aggravated sexual assault contrary to s 61J(1) of the Crimes Act. The circumstance of aggravation was the infliction of actual bodily harm upon the victim.

41. The Police Facts Sheet described the Darlinghurst sexual assault as follows:

“The victim met the Defendant in the early hours of the morning of Monday 21st May, 2001, at the Courthouse Hotel, Darlinghurst. Some time after meeting, the victim and the Defendant left. They walked to Foley Street, Darlinghurst. Once outside number 18 Foley Street the Defendant forced the victim into an adjacent courtyard. The Defendant pushed the victim to the ground and grabbed her around the throat. The victim started to struggle and scream in an attempt to escape. The Defendant covered the victim's mouth and nose with his hand and said “Don’t speak. You do bitch and I'm going to kill you.”

The Defendant removed the victims jeans and underwear. He held the victim on the ground whilst holding her around the throat. The Defendant then forcibly had penile-vaginal sexual intercourse with the victim.

...

As a result of the assault, the victim sustained a number of injuries including bruising, bleeding and swelling to her face and neck. She was conveyed to RPA Hospital and treated for her injuries.”

42. The defendant was on parole at the time of the Darlinghurst sexual assault. He reported smoking marijuana, drinking heavily and hallucinating (hearing “Heavy Metal voices”) before the aggravated sexual assault. The defendant was initially found unfit to plead and on 11 June 2003, Ainslie-Wallace DCJ imposed a limiting term of 10 years to commence on 21 May 2001 and recommended that the defendant be kept in the prison hospital where he was then located.

43. On 5 June 2006, Berman DCJ found the defendant fit to be tried. The defendant pleaded guilty to the charge at the first opportunity and, on 22 February 2007, Geraghty DCJ sentenced him to a term of imprisonment of seven years commencing on 25 May 2001.

Child abuse material offence - 5 January 2019

44. At about 10:40pm on 5 January 2019, the defendant was observed by police in the carpark of some shops at Lurnea on a BMX bicycle while it was raining, with his face concealed by a full face mask helmet, a beanie and a high-necked jumper. He told police that he was exercising. Police searched him and located an Auburn Girls student identification card, a passport size photo of a girl of approximately 10-14 years of age and a child's watch with a cartoon band. When asked about the photograph, the defendant said that he had taped it back together and said “I picked it up because I didn't want people to do bad things to it”. When asked what bad things, he said "sexual things". Police also searched his phone and found material suspected to be child abuse material. The phone was seized and three images were found on it which constituted child abuse material pursuant to the Interpol Baseline Categorisation system. Two images were considered category 1 and one category 2. In addition to this Police noted a large amount of adult pornography and pictures of children whose identities were unknown.

45. On 3 May 2019, the defendant was convicted of possessing child abuse material contrary to s 91H(2) of the Crimes Act at Liverpool Local Court and sentenced to a CCO for a period of 18 months. The defendant subsequently (and within a short period of time) breached his CCO by failing to comply with a reporting condition requiring him to engage with Community Corrections for the purposes of supervision. A breach report was submitted on 23 May 2019 recommending that a warrant be issued for his arrest.

Child protection order offence - 15 May 2019

46. The defendant was registered on the Child Protection Register under the Child Protection (Offenders Registration) Act 2000 (NSW) (CPOR Act) on 15 May 2019, as a result of his conviction for possession of child abuse material discussed above.

47. On 23 May 2019, police attended the defendant’s home for the purpose of an inspection to verify personal information provided, pursuant to s 16C of the CPPO Act. Police observed a large amount of children’s items, including children’s clothing and swimwear; toy sets and action figurines and a pink Disney princess blanket tacked to the wall above the defendant’s bed. The defendant said that he did not have access to children and claimed he was keeping the items for his mother. Police applied for a child protection prohibition order under the CPPO Act. An interim order was granted on 29 May 2019 with a number of conditions, including, inter alia, that the defendant not possess any items that would be used by a child.

48. On 20 June 2019, police attended the defendant’s residence and observed a large number of children’s items in contravention of the interim order (most appeared to be the same items as had been located during the May 2019 search, which the defendant again claimed were “my family’s stuff that I’m holding for them”). The defendant was placed under arrest. A number of photos displaying young children were found on the defendant’s phone, which he claimed were on it when he bought it a few days earlier from a pawn shop (however, none of these comprised child abuse material). Over 30 items relating to children were found in the accused’s wallet, the majority of which were paper instructions with colourful cartoon figures displayed on them.

49. Following a plea of guilty to the offence of contravene a prohibition order, the defendant was sentenced on 31 October 2019 at Liverpool Local Court to an aggregate sentence of 12 months imprisonment commencing 20 June 2019 with a non-parole period of 7 months for possessing child abuse material (the defendant’s breach of his CCO resulted in a call-up) and contravene prohibition order.

50. A final CPPO for a five year term was imposed on 31 October 2019.

51. On 17 January 2020, the State Parole Authority (SPA)revoked the statutory parole order which would otherwise have come into effect on 20 January 2020 on the basis that the defendant posed a serious risk to the community, and a serious and immediate risk to his own safety. On 20 March 2020, the SPA ordered that the decision of 17 January 2020 be rescinded effective 23 March 2020. The defendant was released to parole on the basis that his mental health had stabilised and he would be subject to a CTO upon release. He had suitable post-release plans, including accommodation, and his risk mitigation plan was adequate. The defendant’s release to parole was not opposed by the Commissioner for Corrective Services but the Commissioner raised matters of concern for consideration by the Authority. Additional parole conditions were added including a condition requiring compliance with all directions of the mental health team.

Views of sentencing court at time the sentence of imprisonment was imposed: s 9(3)(h1)   

52. In sentencing the defendant for the Darlinghurst sexual assault, Geraghty DCJ noted that he had shown significant improvement while in gaol as a result of medication. He found that the defendant suffered a “very serious psychiatric illness which can be controlled by medication” and that as a result, he needed supervision for an extended period of time, including “for the safety of the community”. As subjective features, Geraghty DCJ took into account that the defendant had expressed contrition and remorse for his behaviour, and that he had shown a willingness to rehabilitate himself in prison. Geraghty DCJ anticipated that he would continue to do so under supervision.

Risk Assessment Report (RAR): s 9(3)(c)

53. In her RAR dated 14 April 2020, Ms Rochelle Pateman, Acting Senior Psychologist at Corrective Services NSW (CSNSW), concluded that the defendant was in the “well above average” risk category for sexual reoffending.

54. Ms Pateman noted that at interview, the defendant appeared cognitively intact and appeared mostly stable in mental state. Ms Pateman assessed his cognitive functioning, with results indicating that his overall general intellectual ability fell into the “low average” range. He reported compliance with his medication and an intention to continue with this. Ms Pateman opined that if supervision were to be removed from the defendant “it is likely that [he] would return to highly impulsive behaviour through medication, non-compliance and alcohol abuse”.

55. Ms Pateman noted that the defendant has been diagnosed on multiple occasions with Alcohol and Cannabis Use Dependence Disorder and that he had been observed drinking at his house in May 2019. Since being released to parole on 23 March 2020, the defendant had not been subject to drug and alcohol testing, due to the Commissioner’s instruction to temporarily suspend all testing as a result of the COVID-19 pandemic. During the interview, the defendant stated that he was abstinent from all substances but expressed a desire to return to consuming 6-12 beers every second weekend when in his own independent accommodation, stating that this amount of alcohol would not impair his self-control.

56. Ms Pateman noted that the defendant’s progress during his previous ESO was positive, and that support services had effectively enacted a combined case management approach. The defendant did not test positive for alcohol or illicit substances throughout the duration of his order and his electronic monitoring was removed in March 2010 due to compliance with his ESO conditions.

57. The defendant was assessed using the (Level of Service Inventory – Revised (LSI-R) measure of risk/needs in July 2019 and his score fell into the “medium” range. His July 2019 score on the STATIC-99R was 8, placing him in the Level IVb category. Having conducted a current risk assessment using the STATIC-99R, Ms Pateman also placed the defendant in the Level IVb category (the highest category), with a score of 8. Rates of recidivism for individuals with this score are estimated to be seven times higher than those of a “typical” sex offender.

58. Using the STABLE-2007, the defendant’s score was 12, placing him in the high risk category, with two main areas of clinically significant concern, namely capacity for relationship stability and poor problem solving skills.

59. As to dynamic risk factors, Ms Pateman identified problem areas as sexual functioning (although it was difficult for her to obtain an accurate assessment due to the defendant’s guarded presentation), intimacy deficits and impulsivity/poor problem solving. As to sexual functioning, she suggested that the defendant’s behaviour in mid-2019 was indicative of sexual preoccupation with possible deviant sexual interest in prepubescent children. She suggested that the defendant might become increasingly disinhibited when unwell, leading to indiscriminate victim selection. An alternative to this was that the defendant might view women as inaccessible and children as easier and more vulnerable victims.

60. As to impulsivity/poor problem solving, Ms Pateman noted that the defendant’s problem-solving abilities tend to be demonstrated in the context of support to monitor and encourage his actions. He had continued to minimise the impact of alcohol and drugs on his behaviour and had expressed a desire to return to fortnightly drinking. He had previously ceased psychiatric medication without seeking medical advice and had demonstrated ongoing difficulty identifying problems with his mental health. Ms Pateman considered the defendant to be at increased risk when unwell and/or impaired by alcohol, and suggested that his offending appears to be unplanned and opportunistic.

61. Potential protective factors include the defendant’s ongoing contact with his parents (although he was not forthcoming with information about them), his Integration Support Centre residence at Campbelltown (ISC) (though that appears to have ceased following his recent arrest and return to custody) and his current CTO (until 12 June 2020). However, in Ms Pateman's view, the defendant’s inability to reflect on the circumstances that precipitated his recent offending reduced his ability to gain insight and develop appropriate risk management strategies for the future.

62. The RAR outlined the defendant’s possible risk scenarios for repeat sexual violence, suggesting that his most likely scenario for further sexual offending would be precipitated by a relapse into problematic substance abuse and cessation of his mental health medication, which is “likely to occur within the context of a reduction or completion of legal supervision”. Ms Pateman suggested that when unwell, the defendant would experience increased sexual preoccupation and disinhibition and was therefore likely to engage in a sexual assault against an indiscriminate victim in an impulsive manner and most likely perpetrated by disordered thought processes and delusions associated with his mental health. She noted that there was a possible element of violence due to the defendant’s historical reports of homicidal ideation when sexually offending. She did not express a view as to whether the defendant’s most likely risk scenario would rise to the level of serious offending for the purposes of the Act.

63. The RAR noted that should an ESO not be imposed, the defendant would not have access to further support from Corrective Services. Ms Pateman did not consider that the ongoing effect of the defendant’s CPPO would be sufficient to support him in the absence of conditions imposed by an ESO.

Other psychologist or psychiatrist reports: s 9(3)(c)

64. A number of additional psychologist and psychiatrist reports were made in respect of the defendant between 2000 and 2008.

65. Dr Samson Roberts and Dr Anthony Samuels provided reports for the purpose of the 2008 ESO application. Dr Roberts was of the opinion that the defendant presented a high risk of committing a further serious sex offence because in the absence of supervision, it was expected that he would relapse into excessive alcohol use and on becoming non-compliant with psychiatric medication, it was expected that his psychiatric illness would relapse, replicating the circumstances in which he committed his past sexual offences.

66. Dr Anthony Samuels shared the view that the defendant was likely to commit a further serious sex offence if released. Dr Samuels stated that alcohol appeared to be the preeminent factor in the defendant’s sexual offending, but that it seemed very likely that underlying brain damage and mental illness were compounding factors.

67. A psychological report of Narcisca Sutton identified unaddressed dynamic risk factors including intimacy deficits, social influences, poor general self-regulation and untreated mental illness. A neuropsychological report of Julia Zhu and Sharon Flanagan stated that the defendant demonstrated impairment in the sense of limited verbal skills, frequent attention lapses and distractibility, very limited working memory, impaired new learning, poor planning and organising capacity and impulsivity.

68. A psychiatric report of Dr Jeremy O’Dea stated that the defendant was suffering from a severe chronic schizophrenic illness, complicated by a history of alcohol and cannabis abuse and dependence. Dr O’Dea found it difficult to relate the defendant’s sex offending directly to his schizophrenia, but stated that poor judgment and difficulties controlling behaviour were often problematic for patients with such a diagnosis. He opined that from a psychiatric perspective, “it seems critical that the defendant remain in structured supervised psychiatric treatment in the community and remain abstinent from alcohol, cannabis or other illicit substance use in the long term” in order to manage and minimise the risk of relapse in his illness and further offending behaviour.

Risk management report (RMR): s 9(3)(dl)

69. The RMR dated 6 May 2020, prepared by Shantelle Hodgkinson, was relevant to ameliorating those risks factors identified in the report.

70. The RMR noted that should the defendant be subject to a Court order requiring supervision by Community Corrections, Community Corrections would engage in weekly face to face interviews with him, together with scheduled and unannounced home visits. Other proposed risk management measures included third party contacts with any person the defendant may commence a relationship with, schedules and curfews in conjunction with electronic monitoring, referral to Forensic Psychology Services (FPS) and psychiatric services, referral to community based substance abuse assessment and interventions, drug and alcohol testing, prohibitions on contact with young people and place restrictions.

71. Several limitations in the management strategy were identified, including the pandemic limiting the capacity to maintain face to face contact or prosocial activities and preventing alcohol or drug testing taking place, as well as difficulties with unannounced field visits or covert observations if the defendant was not subject to electronic monitoring. Electronic monitoring at the present time was not preventing or detecting high risk behaviour or offending conduct in approved locations. Failure to engage truthfully with treating psychologists, difficulty reaching the defendant on his mobile phone, non-compliance with medication, an absence of willingness to engage in alcohol and drug interventions and failure to disclose information concerning contact with children or associates is not being properly monitored.

Treatment or rehabilitation programs: s 9(3)(e)

72. The defendant had not engaged in sex offender specific treatment and significant reservations were reported in 2008 (by Dr Samuels, Dr Ellis and psychologists Jayson Ware, Narcisca Sutton and Marcello Rodriguez) about his ability and/or capacity to benefit from Custody Based Intensive Treatment (CUBIT), given his cognitive impairments.

73. It was noted that the defendant did participate in the Preparatory Program for Sexual Offenders (PREP) between May and August 2008, despite having earlier declined to do so. Case notes suggested that the defendant was co-operative and adequately managed the group setting, however he struggled with concentration. Whilst he was able to identify alcohol abuse as a primary factor fuelling his prior offences, he did not “seem to take it seriously” or demonstrate any “real commitment” to addressing the problem. The defendant also showed “poor empathy” to the victims of his prior sexual offences. The defendant was apparently released from custody before completing this program.

Options that might reduce the likelihood of offending over time:  s 9(3)(e1)

74. The defendant is currently subject to a CTO, which expires on 12 June. The CTO Treatment Plan requires him to attend appointments with his treating doctor for the purpose of implementing the CTO and to accept medication as prescribed (listed in the CTO as an oral antipsychotic and injection described as “refusing, alm 75mg 1ml every 4/52”. He is also required to comply with requests to provide urine samples for the conduct of urine drug screens no more than once a month as requested by his case manager/psychiatrist).

75. The RMR flagged the possibility of community based alcohol and drug intervention, although it is not known whether the defendant is willing to engage in such interventions.

76. The defendant is currently subject to a CPPO, which is in place until October 2024. It prohibits him, amongst other things, from associating or communicating with any person under 18, being in the vicinity of premises frequented by children and possessing any items that would be used by a child. The child protection order offence stemmed from a failure by the defendant to comply with an interim order made under the CPPO Act.

Likelihood of compliance with ESO: s 9(3)(e2)

Without limiting paragraph s 9(3)(e2), the level of the defendant’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 earlier extended supervision order: s 9(3)(f)

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: s 9(3)(g)

77. These matters can be dealt with together. In past cases, where the likelihood of compliance with an ESO had been limited, and in instances where that history would suggest that a defendant was unlikely to comply with an ESO, this does not appear to have weighed significantly against the making of an order but rather to have been considered as part of the more general question of whether an offender “can be trusted to abide by the conditions of conditional liberty”. (State of NSW v Colquhoun [2018] NSWSC 1012 at [50] (Colquhoun).

78. The defendant has previously committed offences (including the 2001 serious sexual offending) while on parole. The defendant was not charged with non-compliance with the conditions of the 2008 ESO during the five year period of his previous order. His completion report states that his response to supervision had been “overall very positive” and noted that he had not tested positive for alcohol or other illicit substances throughout his period of supervision. When commenting on his previous period of “strict supervision, Ms Pateman in the RAR noted that he “excelled at having boundaries and supports imposed on him leading to a period of stabilisation”.

79. The defendant’s current sentence relates to a breach of the interim order under the CPOR Act in June 2019. The defendant’s non-compliance with the interim order under the CPOR Act, his attempts to minimise and excuse that non-compliance and his most recent charges for contravention of his CPPO give rise to significant doubts that the defendant will comply with his current CPPO.

80. That doubt is exacerbated by the defendant’s most recent charges for contravention of his CPPO.

Any other information available as to likelihood that offender will commit a serious offence: s 9(3)(i)

Psychiatric considerations

81. As set out above, the defendant has been diagnosed with schizophrenia and is presently subject to a CTO. Concerns were held in relation to his mental state in January 2020, with the defendant being placed on a Risk Intervention Team (RIT) on 9 January 2020 (he was seemingly discharged on 20 January 2020), having stated that he had thoughts of self-harm by way of cutting his arm and was feeling stressed about his release from custody. The defendant’s mental health was found to be stable at the time of his most recent parole hearing on 20 March 2020.

82. As noted above, Ms Pateman found that the defendant’s most likely scenario for further sexual offending would be precipitated by a relapse into problematic substance abuse and cessation of his mental health medication which was “likely to occur within the context of a reduction or completion of legal supervision”. The defendant had been diagnosed on multiple occasions with Alcohol and Cannabis Use Dependence Disorder and was observed drinking in his house in May 2019. While the defendant had not been subjected to drug and alcohol testing more recently as a result of the COVID-19 pandemic, in his interview for the purpose of the RAR he expressed a desire to return to consuming 6-12 beers every second weekend when in his own independent accommodation.

Satisfaction of criteria for relief sought

83. Keeping in mind the limited enquiry raised by s 7(4) of the Act (and s 10A, in considering the application for an ISO), the matters in the following paragraphs take into account the s 9(3) factors, which are relevant not only to the discretion to grant an ISO, but also to whether the Court would ultimately be satisfied that the defendant poses an unacceptable risk of committing a further serious offence if not kept under supervision under an ESO and that a ESO should be made.

1. The defendant has a significant history of serious sex offences, which appear to be opportunistic, impulsive and associated with alcohol abuse. Each of the previous sexual assaults involved attacks upon strangers. They were accompanied by violence or threats of violence in addition to the sexual assault. The Kemps Creek sexual assaults occurred over several hours, the defendant having broken in to the victim’s home and threatened to kill her. The Dunheved High School sexual assault occurred at 7am in the morning at the victim’s place of work. The victim was threatened with a knife. The Darlinghurst sexual assault occurred more than eight years after the previous offences, while the defendant was on parole. The defendant forced the victim from the street and performed forcible penile-vaginal sexual intercourse. Again, the sexual assault was accompanied by a threat to kill the victim and the sexual assault was further aggravated by an assault occasioning actual bodily harm. It should also be noted that the defendant has not participated in any intensive treatment program in relation to his sexual offending. Due to barriers presented by his mental stability and cognitive capacity, the view has been taken that the defendant would be unlikely to benefit from CUBIT.

2. The defendant has displayed a repeated pattern of ceasing to take medication for his schizophrenia when not subject to supervision as a result of limited insight into his mental health leading Ms Pateman to the view that he is unlikely to continue complying with his prescribed medication without supervision. Medication non-compliance and/or the use of alcohol clearly raise the defendant’s risk of opportunistic and/or impulsive sexual violence considerably in view of his history of offending in such circumstances. There is also an association between the periods in which the defendant ceased to take his psychiatric medication and his use of alcohol and other substances. Although he has been diagnosed on multiple occasions with Alcohol and Cannabis Use Dependence Disorder, he has shown little insight into the impact of his alcohol use of these behaviours, on his offending and impulsive behaviour. An ESO is capable of regulating the defendant’s conduct in ways that a CTO is not (for example, by prohibiting the use of substances).

3. The defendant has been assessed as having a well above average risk of future sexual offending.

4. The defendant’s 2019 offending suggests either a possible deviant sexual interest in prepubescent children, increased disinhibition leading to indiscriminate victim selection, or a perception of children as “easier and more vulnerable victims to meet his sexual needs”. In any of those cases, the unacceptable nature of the risk posed to the community is exacerbated. The defendant’s lack of insight into that behaviour impedes his ability to develop appropriate risk management strategies himself.

5. The defendant has a record of poor compliance with his reporting obligations under the CPOR Act and with supervision whilst on parole, though his record of compliance with his previous ESO was good. In addition, the defendant has sought to minimise the order under the CPPO Act, has proffered unlikely excuses for his possession of child abuse material, items used by children, and physical and digital photographs of children. The current CPPO would not appear adequate to address the defendant’s identified risk factors, including unlike an ESO, breach of a CPPO is primarily policed after the fact, whereas an ESO involves proactive case management.

84. If the defendant completes his current sentence in June 2020 without the imposition of a further order and absent the imposition of a further CTO, he would be subject to the prohibitions in the CPPO. However, he has already been convicted in relation to breaches of his CPPO, has been charged with a further breach (which is alleged to have taken place while he was living in supported accommodation at the Campbelltown ISC) and would lack support in relation to compliance with his medication, finding stable housing and remaining abstinent from alcohol and drugs. There is little evidence of his capacity to function in the community, remain compliant with his medication and remain abstinent from alcohol and drug use without support. The message from clinicians appears to be consistently that the defendant requires ongoing, relatively intensive, psychological (and at times also psychiatric) support if he is to manage his risk factors in relation to sexual offending.

85. The defendant’s risk potential for a serious sex offence would appear to be aligned with that of further “non-serious” sex offences, because much depends on his choice of victim and the potential for use of violence. The fact that the defendant’s sexual offending has been opportunistic and associated with periods where he has not been taking his medication and has been using alcohol and/or other substances, suggests that there is a real risk that he will be disinhibited at the time of any future offence and randomly select a victim who is a child or otherwise vulnerable. I am satisfied on the basis of all of the material which has been made available, that there is sufficient evidence to demonstrate that without an ESO being operative there is a high probability that he poses an unacceptable risk of committing another serious offence.

86. The RMR is instructive. It describes in detail how this risk can be managed in the community. With appropriate conditions in place, the RMR suggests that the risk posed by the defendant could be adequately managed through an ESO. On that basis, there would be considerable utility in having conditions which were directed at relevant risk factors. Such conditions are as follows:

1. weekly face to face interviews would provide the defendant with ongoing case management and support, with the aim of creating and implementing a comprehensive case plan including opportunities for intervention, prosocial activities and strategies relevant to identified risks;

2. the defendant continuing to engage with FPS. Proposed conditions would require him to attend psychological and psychiatric assessments, therapy, support and treatment that his DSO directs him to attend;

3. the defendant being required to live at an approved address or addresses, and being subject to a curfew. Electronic monitoring would enable the defendant’s adherence to an approved schedule of movements and curfews to be monitored by Community Corrections, including monitoring of compliance with the conditions of his CPPO, with a schedule of movements assisting with the planning of the defendant’s time and encouraging engagement in prosocial activities, as well as limiting opportunities for impulsive decision making;

4. alcohol and drug testing would enable signs of relapse into substance abuse to be monitored, enabling intervention strategies to be put in place prior to an escalation of use;

5. the defendant being required not to approach or have contact with persons he knows are under 18, other than with the written permission of his DSO; and

6. the defendant’s internet-capable devices being subject to inspection and search, with the defendant being subject to direction in relation to his access to the internet, and his user names and relevant passwords for services and applications used on the internet also being required to be provided.

87. Importantly, a further ESO would ensure that the defendant receives ongoing psychiatric and psychological care and would provide the kind of support and monitoring that would otherwise be lacking. Based on the above material, and having regard to the paramount consideration of community safety, a high degree of risk attaches to the defendant being released from supervision without any provision for continued support and monitoring, in particular, with a view to securing his continuation of medication, his abstinence from alcohol and his compliance with restrictions regarding association with children.

88. It follows from the above that I am persuaded that an ISO should be made. The ISO is to take effect from 19 June 2020, or such later date when the defendant is released from custody.

89. No challenge has been made to the conditions attached to the Summons filed on 25 May 2020. Accordingly, those conditions will form part of the ISO. They are annexed to this judgment and marked “Annexure A”.

90. Accordingly, I make the following orders:

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

1. appointing two qualified psychiatrists, psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court;

2. directing the defendant to attend those examinations.

2. An order:

1. (a) pursuant to s 10A of the Act, that the defendant be subject to an Interim Supervision Order (the interim supervision order);

2. (b)   pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days; and

3. (c)   pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in Annexure “A” to this judgment.

3. An order that when the two qualified experts have been identified and an appointment is made for the defendant to see them that included in the opinions, which they give, should be an opinion as to whether they see any potential conflict between the standard form conditions annexed to this judgment; and the conditions which have been imposed by the CTO.

4. An order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party 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 allow them an opportunity to be heard in relation to the application for access.

**********

ANNEXURE “A”

SCHEDULE OF CONDITIONS OF SUPERVISION – STEPHEN DAVIS

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

In these conditions:

"CSNSW" means Corrective Services NSW.

"Commissioner'' means Commissioner for Corrective Services

"Defendant" means Stephen Davis, the defendant in these proceedings and the subject of the order.

"Digital Blueprint" has the same meaning as in the Weapons Prohibition Act 1998 (NSW) and means

any type of digital (or electronic) reproduction of a technical drawing of the design of an object.

"Electronic Identity" means each of the following:

(a)   an email address,

(b)   a user name or other identity allowing access to an instant messaging service,

(c)   a user name or other identity allowing access to a chat room or social media on the internet,

(d)   any other user name or other identity allowing access to the internet or an electronic communication service.

"DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising

the defendant under the order.

"Material" includes:

1.   any written or printed material;

2.   any picture, painting or drawing;

3.   any carving, sculpture, statue or figure;

4.   any photograph, film, video recording or other object or thing from which an image may

be reproduced;

5.   any computer data or the computer record or system containing the data; and

6.   any other material or object on which an image or representation is recorded or from

which an image or representation may be reproduced.

"NSWPF" means NSW Police Force.

"Associate" includes, but is not limited to, being in company with, or to communicate by any means

including by post, facsimile, telephone, email or any other form of electronic communication).

"Search" includes:

1.   A garment search, being a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body; and

2.   A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1.   The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.

2.   Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

3.   The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.

Electronic Monitoring

4.   The defendant must wear electronic monitoring equipment as directed by a DSO and must

not tamper with, or remove, the equipment.

Schedule of Movements

5.   If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.

6.   If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period

7.   The defendant must not deviate from his approved schedule of movements except in an emergency.

Part B: Accommodation

8.   The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements.

9.   The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by a DSO.

10.   The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant.

11.   The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

12.   The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.

13.   The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.

Part C: Place and travel restrictions

14.   The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.

15.   The defendant must not frequent or visit any place or district specified by a DSO.

16.   Without limiting condition 16 above, the defendant must not go to any of the following without the prior approval of a DSO:

a.   Day-care centres, pre-schools and schools;

b.   Amusement parlours, amusement parks and theme parks;

c.   Cinemas;

d.   Libraries and museums;

e.   Camping grounds and caravan parks;

f.   Children's playgrounds, parks, and areas with play equipment provided for the use of

children;

g.   Pools, playing fields and sporting facilities;

h.    Concerts, theatre shows, movies, events and activities intended for the entertainment of children;

i.     Residences where the defendant knows that persons aged under 18 years ordinarily

reside; and

j.    Internet cafes or other businesses which provide public access to the internet either

for payment or for no charge (other than employment agencies).

17.   The defendant must not attend any place used solely or mainly for the sale or display of

sexually explicit material, or for providing sexual services or sexually explicit entertainment,

without the prior approval of a DSO.

Part D: Employment, finance and education

18.   The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs.

19.   The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO. Where possible, an assessment of whether this activity will be approved, will be completed within seven days.

20.   The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his or her next interview with a DSO.

21.   The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO.

Part E: Drugs and alcohol

22.   The defendant must not use prohibited drugs, or abuse drugs unlawfully obtained.

23.   The defendant must not:

a.    Possess or consume alcohol without the prior approval of a DSO.

b.    Use prohibited drugs or abuse drugs unlawfully obtained.

24.   The defendant must submit to drug and alcohol testing.

25.   The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO.

26.   The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO, and must not discharge himself from such programs and courses without prior approval of a DSO.

Part F: Non-association

Association with Children

27.   The defendant must not associate with anyone who he knows or reasonably should know is

under 18, other than Incidental contact in a public place in the course of the duties of the

minor; or with the written permission of a DSO and in accordance with any requirements

reasonably determined by a DSO, including that the contact takes place in the presence of an

adult who has been approved in writing by a DSO.

Associations with Others (not children)

28.   The defendant must not associate with any person or persons specified by a DSO.

29.   Without limiting condition 32, the defendant must not:

a.   associate with any people who he knows are consuming or under the influence of

alcohol without the prior approval of a DSO.

b.   associate with any people who he knows are consuming or under the influence of

illegal drugs.

c.   associate with any person held in custody without prior approval of a DSO.

30.   The defendant must not engage the services of sex workers, without the prior approval of a DSO.

31.   If the defendant starts an intimate relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history.

32.   The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary.

33.   The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation. Where possible, an assessment of whether this activity will be approved will be completed within seven days.

Part H: Weapons

34.    The defendant must not possess or use any of the following:

i. a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996,

ii. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, or

iii.    a spear gun.

35.    Without limiting or altering condition 38, the defendant must not possess or use any of the following, without a DSO's prior approval:

a.   any article or device, not being such a firearm, that is designed or intended as a defence or anti-personnel spray and that is capable of discharging by any means:

i.    any irritant matter in liquid, powder, gas or chemical form or any dense smoke; or

ii.    any substance capable of causing bodily harm.

b.   a knife, machete, sword or any other device that consists of a single-edged or

multi-edged blade or spike that is designed or adapted to inflict violence, whether

actual or threatened

c.   any other implement made or adapted for use for causing injury to a person; or

d.   anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.

Part I: Access to the internet and other electronic communication

36.   The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information.

37.   The defendant must not use any alias, electronic identity, log-in name, name other than "Stephen Davis" or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.

38.   The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.

39.   The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.

40.   The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.

41.   The defendant must not use any coded or encrypted messaging application or service.

42.   The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant's electronic devices or accounts as a result of a search or a remote inspection.

43.   The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi player video games and other telecommunications-based services including text and voice services.

44.   The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.

45.   The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO.

46.   The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.

Part J: Search and seizure

47.   The defendant must submit to the search of his person and residence and the search and seizure of his vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under his control.

48.   The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to this Order.

Part K: Access to pornographic, violent and classified material

49.   The defendant must not purchase, possess, access, obtain, view, participate in or listen to

material classified or material that would be classified as Refused Classification, X18+,

Restricted Category 2 and Restricted Category 1, or any other material as directed by a DSO

with respect to concerns related to risk of committing a serious offence.

Part L: Personal details and appearance

50.   The defendant must not change his name from "insert name" or use any other name without notifying a DSO.

51.   The defendant must not significantly change his appearance without the approval of a DSO.

52.   The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.

53.   If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.

Part M: Medical intervention and treatment

54.   The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.

55.   The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.

56.   The defendant must attend, upon the direction of a DSO, any therapy sessions, disengagement services, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.

57.   The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.

58.   The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.

59.   The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.

NOTE: It is understood that a relationship of trust and confidentiality with healthcare practitioners is fundamental to the defendant's engagement with and treatment by his healthcare practitioners.

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

61.   The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.

**********

ANNEXURE “B”

High Risk Offender Glossary

CCO = Community Correction Order

CDO = Continuing Detention Order

CPPO = Child Protection (Offenders Prohibition) Orders Act 2004 (NSW)

CPOR Act = Child Protection (Offenders Registration) Act 2000 (NSW)

CSNSW = Corrective Services NSW

CTO = Community Treatment Order

CUBIT = Custody Based Intensive Treatment

ESO = Extended Supervision Order

FPS= Forensic Psychology Services

IDO = Interim Detention Order

ISC = Integration Support Centre

ISO = Interim Supervision Order

LSI-R Measure = Level of Service Inventory – Revised Measure

MHRT = Mental Health Review Tribunal

PCA = Prescribed Content of Alcohol

PREP = Preparatory Program for Sexual Offenders

RAR = Risk Assessment Report

RIT = Risk Intervention Team

RMR = Risk Management Report

SPA = State Parole Authority

The Act = Crimes (High Risk Offenders) Act 2006 (NSW)

**********

I certify that this and the 39 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Hoeben, Chief Judge at Common Law.

Morna Lynch

Associate

Date: 18 June 2020

Decision last updated: 18 June 2020