Commissioner of Police v ABC
[2010] WADC 161
•28 OCTOBER 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: COMMISSIONER OF POLICE -v- ABC [2010] WADC 161
CORAM: MARTINO CJDC
HEARD: 21 OCTOBER 2010
DELIVERED : 28 OCTOBER 2010
FILE NO/S: CIVO 83 of 2010
BETWEEN: COMMISSIONER OF POLICE
Applicant
AND
ABC
Respondent
Catchwords:
Application for past offender reporting order - Admissibility of risk matrix assessment of risk of reoffending
Legislation:
Community Protection (Offender Reporting) Act 2004
Result:
Application dismissed
Representation:
Counsel:
Applicant: Ms R Young
Respondent: Mr D S Hunter
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: Legal Aid of Western Australia
Case(s) referred to in judgment(s):
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mustac v Medical Board of Western Australia [2007] WASCA 128
MARTINO CJDC: Pursuant to s 15 of the Community Protection (Offender Reporting) Act 2004 the Commissioner of Police has applied for an order that the respondent comply with the reporting obligations of the Act. The application is supported by an affidavit of Detective Senior Constable Dominic Francesco Licastro sworn on 8 October 2010. The application is opposed by the respondent who has sworn an affidavit on 18 October 2010. The Commissioner of Police also relies upon an affidavit sworn by Detective Sergeant Edward Clayton Gwilliam sworn on 20 October 2010. Detective Sergeant Gwilliam's affidavit was not served within the time limited by O 58 r 18A of the Rules of the Supreme Court 1971. The respondent did not object to the Commissioner of Police relying upon the affidavit and I directed that he could do so. Both Detective Senior Constable Licastro and Detective Sergeant Gwilliam are in the Sex Offender Management Squad. They supplemented their affidavits by oral evidence and were cross‑examined.
Section 82 prohibits disclosure of information on the register of reportable offenders. For that reason the respondent's name does not appear in these reasons. For the same reason I do not provide the references to two Supreme Court decisions to which he was a party and to which I refer in these reasons. The parties know the decisions to which I refer.
The respondent's offending
An application can be brought under s 15 of the Act where a person has been sentenced before s 24 of the Act came into operation for an offence and that person is not and has not been a reportable offender in respect of that offence. Section 19 provides that the court can make an order that a person comply with the reporting obligations of the Act if satisfied that the person poses a risk to the lives or sexual safety of one or more persons, or persons generally. It is not necessary that the court be able to identify a risk to a particular person or particular persons or a particular class of persons.
Section 24 came into operation on 1 February 2005. On 20 May 2004 the respondent was fined $250 for the offence of being unlawfully on premises. That offence was committed on 14 November 2003. It occurred at approximately 10.45 pm at a caravan park at which the respondent lived and worked. He was looking through the window of a cabin at the caravan park. Three fully clothed teenage girls were inside the cabin. He was approached by the manager of the caravan park and the manager's son who told him to go home, which he did without further incident. The incident was reported to police. On 10 March 2004 the respondent was interviewed by police. He admitted looking through the window of the cabin and that he was waiting for the girls to get undressed. The respondent is not and has not been a reportable offender in respect of that offence. The conditions of s 15 are satisfied.
The respondent has also been convicted of offences after 1 February 2005. On 21 November 2005 he was convicted in this court of two counts of deprivation of liberty, three counts of indecent assault, two counts of aggravated indecent assault and one count of making a threat to influence. On 29 November 2005 he was sentenced to a total sentence of 6 years and 4 months imprisonment for those offences. He was made eligible for parole. On 28 November 2006 his appeal against that sentence was allowed and he was resentenced to 5 years imprisonment. He remained eligible for parole.
The respondent committed these offences on three occasions in 2005 against three different women. On 14 May 2005 he committed two offences of aggravated indecent assault. The victim and her boyfriend had an argument and the police were called. The victim's boyfriend jumped into a nearby body of water to evade the police. The victim walked around the body of water to try to talk to her boyfriend. The respondent approached her and asked if she was alright. The victim continued to call for her boyfriend. The respondent knocked her into some bushes, pinned her to the ground and placed his hand over her mouth. He told her that if she wanted to live she would do what he said and that he did not want to have sex with her but wanted to lick her vagina. She tried to scream for her boyfriend for help and the respondent said to her that if she did not want to die she should calm down and told her to let him suck her nipples, which he did. The victim escaped and went to police.
On 4 June 2005 the respondent committed two offences of indecent assault, an offence of deprivation of liberty and an offence of making a threat with intent to influence. The victim of these offences was walking home alone in the early hours of the morning. The respondent knocked her to the ground and pinned her down. He told her to shut up or he would rape her and that he wanted to take her bag or he would rape her. She resisted and he put his hand over her mouth and nose. He grabbed her on her breasts and crotch area and continued to tell her to shut up or he would rape her. He took her shoulder bag and ran off with it. After he had ran a short distance the victim asked for her keys. The respondent gave them to her. The victim then recognised him.
On 17 September 2005 the respondent committed an offence of indecent assault and an offence of deprivation of liberty. At approximately 1.05 am the victim was walking home alone after a night out with friends. The respondent approached her from behind. He put one hand on her mouth, one arm around her throat and forced her to the ground. He told the victim that he wanted her purse and that he wanted her. She asked him what his name was and he told her his middle name. He placed his hand on the area of her vagina on the outside of her clothes. She asked him not to do it. He told her to let her do it and then he would leave her. He was restraining her from behind and she was struggling to get away. He brushed his hand lightly over her genital area. The victim broke free, ran away and went to the police station.
In its reasons for allowing the respondent's appeal against sentence the Court of Appeal described the respondent's actual (as distinct from threatened) sexual misconduct as being at the low end of the scale of seriousness of crimes of that type and in some respects as being atypical, perhaps reflecting his unfortunate life circumstances. The respondent accepted that he had a problem and was willing to participate in specialist sex offender treatment. He had not previously committed an offence that warranted a term of imprisonment, had co‑operated with police in volunteering information about offences with which he had not been charged and had pleaded guilty to the offences.
None of the offences which the respondent has committed are offences for which an offender becomes a reportable offender on conviction. On the sentencing of the respondent for the offences that he committed in 2005 the court could have ordered that the respondent comply with the offender reporting obligations of the Community Protection (Offender Reporting) Act 2004 – s 13. No order was made. Neither the sentencing judge's sentencing remarks nor the reasons on his appeal against sentence refer to the Community Protection (Offender Reporting) Act 2004. It would appear that when the respondent was sentenced for those offences no application was made for an order that he comply with the reporting obligations of the Act.
Events following the respondent's imprisonment
While in prison the respondent sought to participate in specialist sex offender treatment. At first he was not able to do so. Eventually he did participate in a sex offender treatment programme from 31 August 2009 to 9 April 2010.
While the respondent was in prison the Director of Public Prosecutions made an application under the Dangerous Sexual Offenders Act 2006 for a detention or supervision order. The application was refused. The judge found that there were no reasonable grounds for a belief that a court might find that the respondent is a serious danger to the community.
After that application was dismissed Detective Sergeant Gwilliam and Detective Senior Constable Licastro visited the respondent in prison three days before his release. A video record of part of their discussion was tendered in evidence. In each of their affidavits the police officers have deposed that when they visited the respondent he indicated that he was agreeable to a form of reporting order. Only part of that interview was tendered in evidence and the sound quality of that part was not ideal. From the part of the interview that I was able to hear I do not think that the respondent went so far as to say that he was agreeable to a form of reporting order. However he did say that he was shocked that he was going to be released without anything, which I understood to be without any form of support or supervision, and he said that he had no problems with reporting to police.
The respondent was released from prison after serving his full term. He has been voluntarily going to a police station and providing information as to his residence, telephone numbers, employment and work experience, appointments with doctors and general well being. His mother has written to Detective Sergeant Gwilliam supporting the Sex Offender Management Squad providing support to the respondent.
After his release from prison the respondent lived for one week at one hotel and since then he has been living at another hotel. He is looking for private rental accommodation. He is employed as a kitchen hand at a restaurant. He works six shifts a week from either 9.00 am to 3.00 pm or from 7.00 pm to 11.00 pm.
Risk to lives or sexual safety
The word 'risk' in s 19 of the Community Protection (Offender Reporting) Act 2004 is not modified by an adjective, as the word is in s 7 of the Dangerous Sexual Offenders Act 2006 which refers to an 'unacceptable risk'. If a court requires a person to comply with the reporting obligations of the Community Protection (Offender Reporting) Act 2004 that person's liberty could be restricted and their privacy impaired. It is unlikely that the Parliament would have intended that would occur if the risk were insignificant. I conclude that the reference in s 19 to a risk to the lives or sexual safety of a person or persons is a reference to a risk that is more than a fanciful, minimal or merely theoretical risk.
The words 'sexual safety' are not defined, however in the context of the Act I interpret a risk to the lives or sexual safety of a person or persons as being a reference to a risk of a person or persons being the victim of a serious physical assault that may threaten a person's life or a risk of a person or persons being the victim of a sexual offence.
As an application is made by the Commissioner of Police and as a court may make a reporting order if satisfied that a person poses a risk to the lives or sexual safety of a person or persons the burden is on the Commissioner to prove that the respondent poses the risk referred to. The standard of proof is the balance of probabilities – s 112.
Evidence of the decision under the Dangerous Sexual Offenders Act 2006
Counsel for the respondent submitted that I should adopt and follow the decision of the Supreme Court judge who heard the application under the Dangerous Sexual Offenders Act 2006 for a detention or supervision order and found that there were no reasonable grounds for a belief that a court might find that the respondent is a serious danger to the community. I decline to do so. That decision was made under similar but different legislation. The Commissioner of Police was not a party to that action. The judge who heard the application had before him evidence that I do not have before me, namely a report by a psychiatrist and a report by a psychologist each of whom had seen the respondent before he was sentenced, a report by a psychologist who had prepared a report this year after reviewing the respondent's files and a report on his participation in the sex offender treatment programme. Not all of the evidence before me was before that judge. It is necessary for me to reach my own conclusions on the evidence before me, applying the legislation upon which I am to determine the application: Mustac v Medical Board of Western Australia [2007] WASCA 128.
Neither party sought to tender the evidence of the reports prepared for the respondent's sentencing. There were limitations on their ability to do so, by reason of the restrictions contained in s 22 of the Sentencing Act 1995. As the respondent was sentenced in the District Court I could have read the reports. If I did so, I would have been obliged to provide them to the parties to give them the opportunity to be heard on them. I enquired of both counsel at the hearing of the Commissioner of Police's application whether they submitted that I should obtain the reports and adjourn the application to enable them to read them and have the opportunity to make submissions on them. Counsel for the parties did not submit that I should do so. I have not read the reports.
Evidence of the respondent posing a risk to lives or sexual safety
Detective Senior Constable Licastro has been a police officer for 15 years and has been attached to the Sex Offender Management Squad since June 2010. He holds an Associate Diploma in Policing. He has no qualifications in psychology.
In his affidavit Detective Senior Constable Licastro gave evidence of assessment tools called the Risk Matrix 2000/S and the Risk Matrix 2000/V which he used to assess the respondent. His evidence was that the Risk Matrix 2000/V is a risk assessment tool that is used in Australia, the United Kingdom and Canada to predict the percentage chance that a sex offender will commit further sexual offences. It is a recognised risk assessment tool and it has been shown to predict well above chance the percentage risk that a sex offender will commit further sexual offences.
On 1 September 2010 Detective Senior Constable Licastro assessed the respondent using a combination of the Risk Matrix 2000/S and the Risk Matrix 2000/V risk assessment tools. These assessment tools measure the risk of recidivism amongst sexual offenders and are measurements based largely on convictions for sexual offences. The assessment evaluated the respondent as a high risk of re-offending violently in a sexual or non‑sexual manner in the future. He also deposes that the Risk Matrix 2000/V risk assessment tool is used as a base figure because it uses only stable risk factors in arriving at the final assessment. When acute factors are assessed, using Risk Matrix 2000/V as the base line the actual risk of offending may increase.
In addition to the results of the assessment using the risk assessment tools it is Detective Senior Constable Licastro's opinion that the respondent poses a significant risk to the lives or sexual safety of one or more persons or persons generally by reason of the following factors which he considers to be demonstrative of the risk:
a)The not insignificant seriousness of the Respondent's past offending relating to offences that were sexual or had sexual overtones commencing in 2004;
b)The fact that the offences committed in 2005 reveal a material level of violent sexual offending;
c)The concentrated period of sexual offending in 2005;
d)The Respondent's targeting of vulnerable victims being females in secluded places;
e)The Respondent's complete lack of supervision subsequent to his release from prison on 26 September 2010;
f)The Respondent's lack of social support and friendship networks other than his elderly mother;
g)The contribution of the Respondent's depression and alcohol abuse to his pattern of offending;
h)The high risk of the Respondent reoffending as shown by his risk assessment; and
i)The Respondent's and his mother's acknowledgement of the desirability of some form of supervision or support upon his release from prison. (par 33 of his affidavit)
His evidence in cross‑examination was that the Risk Matrix 2000/S and the Risk Matrix 2000/V tool is a 'follow your nose' document. He was unable to explain how it produced the assessment of which he gave evidence. His evidence was that he was not an expert on the tool and that Detective Sergeant Gwilliam was the best person to give evidence as to it.
Detective Sergeant Gwilliam has been a police officer for 35 years and has served as a detective for over 30 years. He has many years experience in investigating sexually motivated crimes, has studied and reported on sexual offending trends in Western Australia and has researched Western Australian Police statistics and investigation case files. He has a certificate in risk assessment and risk management and has received parole officer training in sex offender management and nationally accredited training in the Australian National Child Offender Register (ANCOR) – General and Risk Assessment. It is his opinion that he is the person best positioned to compare the level of risk of sexual offenders in Western Australia.
Detective Sergeant Gwilliam examined the Risk Matrix 2000/V completed by Detective Senior Constable Licastro and he agrees with the method used and the results obtained. Detective Sergeant Gwilliam deposed that the form, using the accompanying scoring guide, places the respondent in the high risk category of sexual offenders likely to re-offend violently in a sexual manner. His evidence was that the Risk Matrix 2000/V is an improved model of the original risk matrix first used by Western Australian Government Agencies, called a Static 99. The form of risk assessment is self-explanatory as the fields to be completed are contained on the form and the scoring values are also explained on the reverse of the form. He has assessed the research on which the form is based and the use of the form and he agrees that it does predict future sexual offending, well above chance.
Detective Sergeant Gwilliam also deposed that David Thornton, PhD, who developed the matrix, has published a further scoring guide, which Detective Sergeant Gwilliam uses to validate and explain the basis of the form and the methods used in completing the matrix, because it is a very basic but accurate method of risk assessing sexual offenders. A copy of that scoring guide was annexed to Detective Sergeant Gwilliam's affidavit.
Detective Sergeant Gwilliam rates the respondent in the top 16.2% of offenders currently on ANCOR. He bases his assessment on the following factors:
1.He has offended both sexually and violently, over a concentrated period in 2005 which resulted in his incarceration.
2.Notwithstanding the sex offender treatment programme he completed in prison, he will remain vulnerable to 'placing himself' or 'finding himself' in high risk situations given his cycle of offending, as admitted by the Respondent, is linked to his depression, loneliness and alcohol abuse. I agree with him.
3.Some of his 2005 offences reveal an element of planning, victim selection and the execution of his crimes, while affected by alcohol, were deliberately violent.
4.He lacks social and friendship networks, other than his elderly mother.
5.His mother's neighbours object to the Respondent's presence at or near their location.
6.He has stated that he is not comfortable with the level of anti‑depressants he is taking and had come to rely upon the anti‑libidinal effect of that medication.
7.He is not in a stable or long term relationship.
8.His lacks a stable 'Support Network'. (par 39 of his affidavit)
In cross-examination Detective Sergeant Gwilliam stood by his assessment. His evidence was that he was not a psychologist or a psychiatrist but his qualifications are 35 years service as a police officer of which 30 years have been served as a detective. He was asked why the risk matrix is not used by psychologists. His evidence was 'Because it's new. Because it's innovative, its new and we say its more accurate' (ts 25).
The admissibility of the risk matrix assessment results
For expert opinion evidence to be admissible there must be a field of specialised knowledge, an identified aspect of the field in which the witness demonstrates that by reason of specified training, study or experience the witness has become an expert and the opinion evidence must be wholly or substantially based on the witness' expert knowledge and on identified facts: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85].
The expert must furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions: Makita (Australia) Pty Ltd v Sprowles at [59].
Detective Sergeant Gwilliam and Detective Senior Constable Licastro are experienced police officers. Detective Sergeant Gwilliam has experience in investigating sex offences and managing sex offenders. However they are not psychologists or statisticians. They are not qualified to give evidence as to the reliability of the risk matrix tool. In addition their evidence failed to explain how the tool provided a reliable assessment of the respondent's risk of offending in the future. I do not accept the evidence that the respondent is a high risk of re‑offending by reason of the risk matrix tool assessment.
Whether the Commissioner has proved that the respondent poses a risk to lives or sexual safety
Detective Sergeant Gwilliam and Detective Senior Constable Licastro also base their opinions that the respondent is at a high risk of re‑offending on the matters that I have quoted earlier in these reasons. I accept that the officers are concerned as to the risk of the respondent re‑offending. As I have noted they are both experienced police officers and Detective Sergeant Gwilliam has experience in investigating sex offences and managing sex offenders. I find that by reason of their experience and training they have expertise in the specialised field of investigating offences and that by reason of Detective Sergeant Gwilliam's experience and training he has expertise in the specialised fields of investigating sex offenders and managing sex offenders. They are qualified to give the opinions that they have expressed. However that does not determine the weight that I give to those opinions. As they both acknowledge they do not have training in specialised fields such as psychology. Their evidence does not have the same weight as a person with qualifications and experience in behavioural studies who has interviewed and assessed an offender.
The court's role in considering an application under s 15 is to determine whether it is satisfied that a person poses a risk to the lives or sexual safety of persons. In doing so the court must examine and assess the evidence before it. It would be a failure to perform those duties if a court were to accept without examination the opinions of police officers, no matter how experienced those officers are.
I have considered the evidence of the police officers and the facts upon which they base their opinions. I also take into account that the respondent's actual sexual misconduct was at the low end of the scale of seriousness of crimes of that type, that the respondent accepted responsibility for his offending behaviour by his pleas of guilty, that he co‑operated with police who were investigating the offences, that he has acknowledged his problems, that he has undertaken a Sex Offender Treatment Programme and that prior to the offences for which he was imprisoned he had not previously committed an offence that warranted a term of imprisonment. I conclude from his actions that he is motivated not to re‑offend.
The onus is on the Commissioner of Police to satisfy me on the balance of probabilities that the respondent poses a risk that is more than a fanciful, minimal or merely theoretical risk to the lives or sexual safety of one or more persons, or persons generally. Having regard to the evidence of the respondent's actions to which I have referred I am not satisfied to that standard. The application is dismissed.
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