Chief Executive Officer, Department of Corrective Services v Ratcliff [No 2]
[2015] WASC 12
•12 JANUARY 2015
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CORRECTIVE SERVICES -v- RATCLIFF [No 2] [2015] WASC 12
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 12 | |
| 12/01/2015 | |||
| Case No: | MCS:56/2010 | 15 DECEMBER 2014 | |
| Coram: | HALL J | 15/12/14 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CORRECTIVE SERVICES ALAN DAVID RATCLIFF |
Catchwords: | Dangerous sexual offenders Application to amend supervision order Whether residential condition should be amended to ensure respondent sleeps each night at approved residence Whether amendment necessary to achieve objectives of supervision order |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 20 |
Case References: | Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357 Director of Public Prosecutions (WA) v Ratcliff [2011] WASC 127 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
ALAN DAVID RATCLIFF
Respondent
Catchwords:
Dangerous sexual offenders - Application to amend supervision order - Whether residential condition should be amended to ensure respondent sleeps each night at approved residence - Whether amendment necessary to achieve objectives of supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 20
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant : Mr T C Russell
Respondent : Ms L Boston
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Mara Barone Lawyers
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357
Director of Public Prosecutions (WA) v Ratcliff [2011] WASC 127
1 HALL J: This application to amend a supervision order pursuant to s 20(1) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) was heard by me on 15 December 2014. At the conclusion of the hearing, I granted the application and said that my reasons for doing so would be published subsequently.
Background
2 On 18 April 2011 the respondent was found to be a serious danger to the community and was placed on a supervision order pursuant to s 17(1)(b) of the DSO Act for a period of five years: Director of Public Prosecutions (WA) v Ratcliff [2011] WASC 127. That order will remain in force until 17 April 2016. The order contains 37 conditions which the respondent is obliged to adhere to whilst in the community.
3 Condition 1 of the supervision order provides as follows:
Take up residence at [suppressed] and reside continuously at that address or at a different address only if such different address is approved in advance by the Community Corrections Officer assigned to him ('the CCO' - which designated CCO may be changed by the Department of Corrective Services at any time).
4 While condition 1 requires the respondent to reside at an approved address, it does not expressly state that he is required to spend each night at that address. The applicant seeks to amend this condition in order to impose a requirement that the respondent spend each night at the approved address or at a different address only if such different address is approved in advance by a community corrections officer (CCO).
The application to amend
5 By application dated 24 March 2014 the Chief Executive Officer of the Department of Corrective Services has sought to amend the supervision order. Section 19 of the DSO Act provides that an application to amend the conditions of a supervision order may be made by the person who is subject to the supervision order or, with the DPP's consent, by the Chief Executive Officer of the Department of Corrective Services. By letter dated 27 February 2014, the DPP consented to the making of this application (affidavit of Cassie Anne Tait sworn 20 March 2014, annexure 36). The respondent was given notice of the application and attended on the hearing.
6 Section 20 of the DSO Act provides:
(1) The court may, on an application under section 19, amend the conditions of a supervision order if the court is satisfied that -
(a) the person who is subject to the order is not able to comply with the conditions of the order because of a change in the person’s circumstances; or
(b) the amendment is necessary or desirable for any other reason.
(2) Before amending the conditions the court has to be satisfied that -
(a) the conditions, as amended, would be sufficient to ensure adequate protection of the community; and
(b) it is reasonable to make the amendment in all the circumstances.
1. affidavit of Cassie Anne Tait sworn 20 March 2014 (exhibit 1);
2. affidavit of Erin Amelia Hutchings affirmed 9 December 2014 (exhibit 2);
3. a report of Dr Mark Hall dated 20 January 2011 (exhibit 3); and
4. a report of Dr Gosia Wojnarowska dated 20 January 2011 (exhibit 4).
8 The respondent did not require the deponents of the affidavits to be made available for cross-examination. Nor did the respondent choose to give or adduce any evidence at the hearing. The facts were not in issue. The only issue was whether the amendment was necessary. A summary of the relevant factual circumstances follows.
The evidence
9 The reports of Dr Hall and Dr Wojnarowska were prepared for the original hearing following which the respondent was placed on the supervision order. Those reports were relied upon by EM Heenan J in coming to the conclusion that the risk of the respondent committing further sexual offences of a serious nature could be adequately contained if he was released on strict conditions.
10 Dr Hall's report stated that the respondent was 'at high risk of reoffending sexually if not subject to a community supervision order or continuing detention order'. Dr Hall identified a number of risk factors including 'his previous record of similar behaviour, unaddressed treatment needs in relation to his deviant sexual interest in prepubescent children, an antisocial or psychopathic personality structure, the potential for relapse of alcohol dependence, and his unrealistic approach to future plans'. In considering how the respondent could best be managed in the community, Dr Hall said:
The best way to monitor the warning signs that the risks posed by Mr Ratcliff may be increasing are a strict supervision regime, a requirement that he report to authorities any relationship in which there is potential for access to children, and the use of random urine testing for drugs of abuse.
- Dr Hall also stated that:
Other than restrictions in relation to location of accommodation with respect to proximity to children, and the prohibition of contact with children under 16, it is difficult to suggest specific supervision or surveillance strategies that could be implemented to reliably manage the risks posed by Mr Ratcliff.
Reference was also made to the need for the respondent to engage in substance abuse programmes, particularly those focused on alcohol, given that alcohol had been a risk factor in past offending.
11 In her report Dr Wojnarowska concluded that adequate management of the respondent in the community required, amongst other things, that conditions be imposed that would address alcohol dependence and access to potential victims. Dr Wojnarowska said that '[s]hould Mr Ratcliff be released to the community, surveillance is of the utmost importance, particularly movements in his car and compliance with other Sex Offender Management Squad requirements should be monitored'. She also said '[t]he area of accommodation and employment is equally important as any destabilisation can directly lead to increased alcohol consumption and then directly to future reoffending'.
12 As noted earlier, the supervision order made on 18 April 2011 imposed a requirement to reside at a nominated address, or another address approved by the CCO assigned to the respondent. That condition did not, however, specifically stipulate that the respondent was required to spend each night at the residence. The normal meaning of the word 'residence' does not imply a place at which the person concerned will spend every night. This does not appear to have been an issue that was considered at the time the supervision order was made. The possibility that the respondent could be absent from the approved residence overnight, or perhaps longer, and yet still be considered to reside there does not appear to have been contemplated. The lack of clarity of this condition has meant that the respondent has been able to be absent from his residence on a number of occasions without being in breach of this condition.
13 It was clearly intended that the conditions of the supervision order would enable the respondent to be closely supervised in the community. One way in which this can be achieved is for the respondent to be required to reside at an approved address. Approval of the address would doubtless take into account risk factors such as the location of the address in regards to schools, shopping centres, and the homes of previous victims. This aspect of supervision would be rendered less efficacious if the respondent did not have to spend each night at the approved residence. Residence conditions imposed in subsequent cases have clearly stipulated this requirement: for example Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357.
14 There are other mechanisms for supervising the respondent in the community. Pursuant to s 19A and sch 1 cl 2(3) of the DSO Act, the respondent is subject to electronic monitoring. In his case this is achieved by requiring him to carry a handheld GPS tracking device. The device also has a telephone function which allows departmental officers to contact the respondent. On 6 June 2013 the respondent was issued with a written lawful instruction pursuant to s 19A(2)(c) directing him to keep his GPS tracker with him whenever he was not at home. On 23 August 2013 a further written lawful instruction was issued requiring the respondent to inform his assigned CCO of details of all planned travel outside the Perth metropolitan area. This instruction required the respondent to provide 48 hours advance notice of the travel and provide the date, time, locality and accommodation in respect of such travel. It should be noted that GPS tracking outside the metropolitan area is not always possible.
15 On 18 June 2013 GPS data indicated that the respondent was located to the north of Geraldton. He was telephoned by an after-hours DCS manager due to loss of the GPS signal. The respondent abused the manager and refused to confirm his location. He was absent from his approved address that night and returned to Perth the following day. Whilst this incident occurred before the second written lawful direction and the requirement that the respondent advise of his travel plans, it does indicate that the residence condition and the GPS requirement were not adequate to supervise the respondent on this occasion.
16 On 24 July 2013 the respondent failed to take his GPS tracker with him when he left home. He was telephoned and directed to return home and obtain his tracker. He was dismissive and did not comply with the direction. He was then contacted by an after-hours manager of DCS and again directed to return home to obtain the tracker. On this occasion he complied.
17 On 29 July 2013 GPS data indicated that the respondent was heading north-east in the locality of the Julimar State Forest. Monitoring coverage in this area was intermittent. A monitoring station operator telephoned the respondent who was abusive and refused to confirm if he was planning to stay in the area overnight. The following day the respondent was telephoned by a DCS officer and directed to attend urinalysis. He claimed he was stuck in traffic and did not attend until an hour and a half after the required time. The respondent subsequently admitted that he had consumed alcohol during this trip.
18 On 22 January 2014 the respondent sent an email to his assigned CCO advising that he was giving 48 hours notice of his intention to travel in accordance with the written lawful direction issued on 23 August 2013. He named the locality to which he intended to travel as the 'State of WA' and his accommodation as the 'bush'. When contacted by his CCO the respondent argued that the information he had provided was sufficient. He then said he was going to spend a night away with his son in the bush but could not say whether this would be north or south. He mentioned the Julimar National Park as a possible destination but said he could not be sure. He said he would contact his son to find out more information and call the CCO back the next day. When he did not do so the CCO attempted to telephone him and also to call him using the GPS tracker but there was no answer.
19 On 25 January 2014 contact was made with the respondent who said he was going down south for cultural reasons. He gave a location and was subsequently found by police in the Kojonup area driving a vehicle which he was not known to own. He was breathalysed and found to have a blood alcohol reading of 0.052 and to be in possession of 19 cans of beer. He was subsequently charged with contravening the supervision order by being in possession of and using alcohol.
20 On 25 April 2014 the respondent telephoned an electronic monitoring officer to advise that he was driving to Dwellingup for the purpose of hunting. GPS data subsequently indicated that he did travel to Dwellingup and stayed there overnight. Various attempts to contact him via his mobile telephone and the GPS tracking device were unsuccessful. He returned to the metropolitan area on the afternoon of 26 April. He did not give advance notice of this travel pursuant to the requirements of the written lawful instruction of 23 August 2013.
21 On 29 April 2014 the respondent was served with the application in this matter. Since that time he has travelled outside the metropolitan area on two more occasions. On 6 June 2014 he again travelled to the Dwellingup State Forest. He returned to the metropolitan area on 8 June 2014. He travelled to the same area again between 14 and 16 June 2014. On both occasions he provided his assigned CCO with 48 hours notice of his intention to travel to the Dwellingup area. He also made contact with electronic monitoring officers prior to his travel to advise of his intention to leave the metropolitan area.
22 Since the application was served the respondent has also obtained fly-in fly-out employment which has required him to travel and stay outside the metropolitan area for extended periods of time. On these occasions the GPS requirement has been removed due to occupational health and safety issues.
23 On 20 November 2014 the respondent gave notice of an intention to again travel to Dwellingup between 22 and 24 November 2014. He said that the purpose of this journey was to look for private rentals in the area. He did not return to the metropolitan area on 24 November 2014 as planned, nor did he make contact with electronic monitoring officers or his CCO to provide an update of his movements. Based on GPS data he did not stay in the locality of Dwellingup, rather he travelled past Pinjarra and west of Williams. Attempts to contact him via his mobile telephone and the handheld GPS tracking device on 25 and 26 November were unsuccessful. He failed to report for supervision as required on 27 November 2014. He was contacted that day and said that he was still down south and would not be able to make his appointment. He wrongly claimed that he had advised the CCO of his intention to be away for this period of time and also wrongly claimed that he was still in Dwellingup. On his later return to Perth the respondent said that he had lost track of time and forgot about the supervision appointment.
Conclusion
24 It was submitted on behalf of the respondent that the amendment was not necessary or desirable in circumstances where it was already possible for the respondent to be issued with written directions requiring him to give notice of intended travel. Written directions of this nature had been issued and, it was suggested, amending the supervision order would achieve nothing that such directions could not themselves achieve.
25 The fact is that despite written instructions to provide details of intended travel, the respondent has on a number of occasions failed to provide such notification, has refused to provide appropriate details or has not travelled in accordance with his notification. The effect of this has been that on a number of occasions his whereabouts have been unknown and GPS tracking systems have been ineffective in the areas to which he has travelled. For whatever reason, the respondent has proven unwilling or unable to sufficiently comply with the written directions. The affidavits of Ms Tait and Ms Hutchings say that this arises in a context where the respondent's attitude to supervision has not always been positive.
26 The intention of the residence condition was clearly to act as a limitation on the movements of the respondent in the community. That condition has not achieved its objective in the circumstances. An amendment to the condition in accordance with the application would effectively prohibit any travel which would necessitate an overnight stay without prior approval. Whilst it is true that the written instructions already effectively impose travel approval requirements, I accept that the amendment would strengthen this requirement. It would also clearly place the onus on the respondent to provide advance and sufficient information in order to obtain the approval of the CCO. As I noted at the hearing, I would not expect approval of reasonable travel for work or holidays to be withheld. Approval would, however, be governed by the need to ensure that supervision remains effective.
27 It is clear from the reports of Dr Hall and Dr Wojnarowska that close supervision of the respondent was required in order to adequately minimise the risk of reoffending. Those risks include ensuring that the respondent's movements and location can be monitored and also limiting his access to alcohol. The amendment is necessary and desirable in order to achieve these objectives. I am satisfied that the conditions as amended would be sufficient to ensure adequate protection to the community and that it is reasonable to make the amendment in all the circumstances.
28 For these reasons the application was granted.
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