Commissioner of Police v PJC - [2010] WADC 135

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: COMMISSIONER OF POLICE -v- PJC [2010] WADC 135

CORAM: EATON DCJ

HEARD: 20, 27 AUGUST 2010

DELIVERED : 14 SEPTEMBER 2010

FILE NO/S: CIVO 68 of 2010

MATTER :IN THE MATTER OF s 87, s 90, s 92, s 95 of the Community Protection (Offender Reporting) Act 2004

BETWEEN: COMMISSIONER OF POLICE
Applicant
AND
PJC
Respondent

Catchwords:

Application for child protection prohibition order - Factors to be considered

Legislation:

Community Protection (Offender Reporting) Act 2004

Result:

Child protection prohibition order made

Representation:

Counsel:

Applicant: Ms C L Conley
Respondent: In person

Solicitors:

Applicant: State Solicitor for Western Australia
Respondent: Not applicable

Case(s) referred to in judgment(s):

Nil

EATON DCJ: On 19 August 2010, the applicant filed, by notice of originating motion, an application for interim orders pursuant to the provisions of the Community Protection (Offender Reporting) Act 2004 (the Act). The application is supported by a certificate of evidence pursuant to s 113 of the Act confirming that PJC was registered as a reportable offender on 22 August 2009, that on 13 October 2005 he was convicted in the District Court at Western Australia at Perth of one count of sexual penetration of a child under the age of 16 years, one count of procuring a child to engage in sexual behaviour, and six counts of indecently dealing with a child under the age of 16 years and that he was sentenced to a term of 4 years imprisonment for those offences.
The application was initially heard on 20 August 2010. PJC appeared without representation. Interim orders were made.
Section 87 of the Act provides that the commissioner may apply to the court for a prohibition order prohibiting a reportable offender from engaging in specified conduct. Pursuant to s 89 the court may dispose of such an application by making a prohibition order, by dismissing the application or, at the request of the applicant, by discontinuing the application.
By s 92 of the Act, a court may make an interim child protection prohibition order prohibiting a reportable offender from engaging in conduct specified in the order if it appears to the court that it is necessary to do so to prevent an immediate risk to the lives or the sexual safety or one or more children, or children generally.
By s 95 the court may make an interim prohibition order without being subject to s 92 if the applicant and the reportable offender consent to the making of the order. The court, under that section, is not required to conduct a hearing before making an interim order unless it considers that it is in the interests of justice to do so. In determining whether it is in the interests of justice to conduct the hearing, the court may have regard to:
(a)whether the reportable offender has obtained legal advice in relation to the order concerned;
(b)whether the reportable offender:
(i)has impaired intellectual functioning;
(ii)is a person in respect of whom an guardianship order is in force under the Guardianship and Administration Act 1990;
(iii)is illiterate or is not literate in the English language; or
(iv)is subject to some other condition that may prevent the reportable offender from understanding the effect of giving consent to the making of the order.
On 20 August 2010, the applicant presented a document entitled 'statement of agreed facts for interim child protection order hearing on 20 August 2010'. Having referred, in terms, to that document, and heard PJC in relation to it, I conclude, as a matter of fact, that he is a reportable offender under the Act, that he does consent to the making of an interim child protection order, that he has not obtained legal advice in relation to that proposed order, that he does not have impaired intellectual functioning, that he is not a person in respect of whom a guardianship order is in force under the Guardianship and Administration Act 1990, that he can read and write in the English language and that he is not subject to some other condition that may prevent him from understanding the effect of giving consent to the making of an interim order.
In fact, PJC was well able to express himself as to the application generally and its consequences for his liberty.
Having heard PJC I concluded that a formal hearing was, in his case, not necessary. I made interim orders in the following terms:
1.The respondent is prohibited from:
(a)associating or having contact with any child unless the relevant parent or guardian of that child is present and able to view the child at all times;
(b)loitering at any place where children are present;
(c)associating or communicating with any person who, to his knowledge, has been convicted of sexual offences against children;
(d)accessing internet chat sites;
(e)consuming or being in possession of any alcohol or illicit drugs;
(f)attending amusement arcades such as 'TimeZone';
(g)attending computer game retail stores;
(h)refusing to undertake counselling;
(i)refusing to take prescribed medications; and
(j)refusing to submit to drug or alcohol testing at the request of a police officer.
The matter was adjourned to 27 August 2010.
On 25 August 2010, the applicant filed the following documents:
1.affidavit of Edward Clayton Gwilliam, sworn 25 August 2010;
2.affidavit of Natalie Jane Davis, sworn 25 August 2010;
3.an outline of submissions; and
4a list of authorities.
On 26 August 2010, the applicant filed an affidavit of Levinia Margaret Hugo, sworn 25 August 2010.
PJC again appeared before me on 27 August 2010. On that occasion the applicant was seeking a final order pursuant to s 90 of the Act which provides that a court may make a child protection prohibition order prohibiting a person from engaging in conduct specified in the order only if the court is satisfied that the person is a reportable offender and:
(a)that the person poses a risk to the lives or sexual safety of one or more children, or children generally; and
(b)that making the order will reduce the risk.
Section 95 of the Act provides that a court may make a child protection prohibition order without being subject to s 90 if the applicant and the reportable offender consent to the making of the order. Again, I may not conduct a hearing before making an order unless I consider that it is in the interests of justice to do so.
On 27 August 2010 I did conduct a hearing at which Edward Clayton Gwilliam gave evidence. He is a detective sergeant in Western Australia Police and attached to the sex offender management squad. Beyond that designation he is a police officer of many years experience. He is a member of the working committee for the Interagency Public Protection Strategy, a government initiative focusing on case management of serious convicted sexual offenders. He has, according to his affidavit sworn 25 August 2010, given expert evidence in this court and in the Children's Court in regard to child protection prohibition orders and past offender reporting orders and in the Magistrates Court of Western Australia in regard to applications for offender reporting under the Act. In addition, he has given expert evidence in the Supreme Court of Western Australia in relation to applications under the Dangerous Sexual Offenders Act 2006 in regard to police procedures and police capabilities in mitigating risk. Further, he delivers lectures and case management training with respect to the Australian National Child Offender Register database and system and the Dangerous Sexual Offenders Act to the Department for Child Protection, the Department of Corrective Services and Western Australia Police. In the course of his work he is required to deal also with the Education Department, the Department of Housing and Works, mental and general health authorities in relation to the Interagency Public Protection Strategy.
I accept that Edward Clayton Gwilliam has expertise in the area just outlined. He has specific expertise in the area of risk assessment so far as sexual offenders are concerned.
On 19 August 2010 in company with another officer he visited PJC and invited him to accompany them for the purpose of conducting an interview as to a proposed application for child protection prohibition orders. Prior to taking part in the interview PJC was advised of his rights under the relevant provisions of the Criminal Investigation Act 2006, notwithstanding that the interview was not part of an investigation into an alleged criminal offence. It was apparent to the officer that PJC was, by his own admission, a risk so far as sexual offending against children was concerned.
On 24 August 2010 Natalie Jane Davis, a first-class constable of Western Australia Police based at the sex offender management squad, conducted a risk assessment in relation to PJC utilising the Risk Matrix 2000 (RM2000) with the assistance of Edward Clayton Gwilliam. That risk assessment is annexed to her affidavit of 25 August 2010 and marked with the letter 'H'. She concluded, as did Edward Clayton Gwilliam, that PJC fell into a high risk category meaning that there was a 40% chance of him re‑offending sexually.
In evidence Edward Clayton Gwilliam said that PJC will remain on the Community Protection Offender Register for 15 years. His request was that prohibition orders made with respect to PJC be in effect for a period of five years. He said in that regard:
During that time though, we will be working with [PJC], and the idea is that if [PJC] is having difficulty in regard to his requests and ours in regard to such things as alcohol, it's not such that we would want permanently to ban [PJC] from drinking alcohol. It would be such that we would like him to learn drink responsibly, and not drink to – as a coping mechanism for stress. We would prefer him to drink for recreational purposes and other purposes, as opposed to try and cope because – and that is something that – that [PJC] would discuss, or we would discuss with [PJC] and move through in that five‑year period to get him to a point where that may not be necessarily a consideration or it may need to have a condition such as, you know, not to consume alcohol or possess alcohol unless authorised by a – an authorised officer or whatever the case may be. But it is negotiated. It is discussed. It's worked. But compliance is a police officer's role with these things, and he would be subject to breath analysis. If we suspected drugs, then urinalysis. Unannounced home visits, periods of observation to ensure that what he is in actual fact is telling us is the truth. And by doing that, it is risk‑assess based. We're actually trying to ensure that our risk assessments of [PJC] are accurate at that point in time in his life. So it's not just relying on an RM2000 that comes as high or very high and that's the end of it. It's not like that at all. If [PJC]'s acute factors reduce and they are mitigated, then so be it. He would be treated accordingly.
Reflecting on his interview with PJC on 19 August 2010 Edward Clayton Gwilliam said that, in his view, PJC had a good understanding of what was proposed for him. He said that PJC, in fact, welcomes the intervention and assistance being offered to him in an effort to prevent further offending.
At the conclusion of the evidence of Edward Clayton Gwilliam I invited PJC to cross-examine. He indicated that he had no questions of the witness.
I referred PJC to a minute of proposed orders by way of final child protection orders sought by the applicant. I explained that the proposal was that the orders would be in effect for a period of five years from the date on which they are made. PJC confirmed that he had both seen and read the document and, in particular, the specific prohibitions outlined in subparagraphs (a) to (j) inclusive. He confirmed that he understood the terms of the prohibitions. I inquired as to his attitude to being subject to those prohibitions or restrictions over the period of five years. He replied:
I believe it will help me and that's what I've wanted. That's why I've actually come forward to the detectives and – and I want to step off from my offending cycle and not offend and deal with everything like this. 'Cos those things are, like, really big triggers for me. So those things will help me to stop being in high risk situations and triggering me and stuff like that … So that's the reason why I want – want them on me. Because I pretty much explained it to them, and they've gone through with it. But I consent to it and I want to go with it.
I inquired of him, as to the prohibitions concerning alcohol and illicit drugs and the possible requirement that he be tested in that regard from time to time. He indicated his understanding of what was proposed. In regard to the possibility of re-offending PJC said:
I was actually coming up very, very close. I know that for sure. That's why I actually went and spoke to the detectives straightaway, 'cos I felt very, very close and I was trying to stop myself but … that's why I turned around and – and did that.
I have had regard to the affidavits filed by the applicant and, the statements from PJC in the course of the two appearances before me. I am cognisant of his criminal record and the circumstances of his offending in the past. As to his appearance before me on two occasions I am satisfied that he readily comprehended the nature of the proceedings, his own precarious personal circumstances, the terms of what was proposed in terms of the prohibition orders being sought and the impact of the proposed five‑year regime under those orders on his own life and liberty. I have no cause for doubting the sincerity of his statements or the voluntary nature of his attitude to what is proposed. There is, to my mind, no suggestion of intimidation or imposition so far as PJC is concerned. I am satisfied that he poses a risk to the sexual safety of children generally and I am further satisfied that the making of the proposed orders will reduce that risk. Accordingly, there will be final orders, for a term of five years from 14 September 2010 prohibiting PJC from:
(a)associating or having contact with any child unless the relevant parent or guardian of that child is present and able to view the child at all times;
(b)loitering at any place where children are present;
(c)associating or communicating with any person who, to his knowledge, has been convicted of sexual offences against children;
(d)accessing internet chat sites;
(e)consuming or being in possession of any alcohol or illicit drugs;
(f)attending amusement arcades such as TimeZone;
(g)attending computer game retail stores;
(h)refusing to undertake counselling;
(i)refusing to take prescribed medications; and
(j)refusing to submit to drug or alcohol testing at the request of a police officer.
Having regard to s 96 of the Act, I am aware of the provisions applicable to an application to vary or revoke such an order. PJC may only make such an application with leave of the court and must demonstrate changed circumstances. Apart from s 96 and the appeal provisions, once an order is made, there is no means of judicial supervision. The term of 5 years is the maximum term available under the Act. Having considered all material before me and PJC's expressed attitude to what is proposed, I consider that the terms of the order made and its duration are in his and the community's best interests.