Commissioner of Police v TAK [No 2]

[2011] WADC 219

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION:   PERTH

CITATION:   COMMISSIONER OF POLICE -v- TAK [No 2] [2011] WADC 219

CORAM:   MARTINO CJDC

HEARD:   5 DECEMBER 2011

DELIVERED          :   5 DECEMBER 2011

FILE NO/S:   CIVO 2175 of 2011

BETWEEN:   COMMISSIONER OF POLICE

Applicant

AND

TAK
Respondent

Catchwords:

Criminal law - Child protection prohibition order

Legislation:

Community Protection (Offender Reporting) Act 2004

Result:

Child protection prohibition order made

Representation:

Counsel:

Applicant:     Mr T C Russell

Respondent:     Mr B Meshgin

Solicitors:

Applicant:     State Solicitor for Western Australia

Respondent:     Legal Aid Commission of Western Australia

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

Commissioner of Police v ABC [2010] WADC 161

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

1. MARTINO CJDC:  During the hearing of this application the respondent became agitated and distressed when his past conduct was referred to by counsel.  I delivered my decision ex tempore.  Due to the distress caused to the respondent during the hearing I delivered a summary of my reasons only and said that my reasons in full would be published in writing.  These are those reasons.

2. By an application filed on 21 September 2011 the applicant, the Commissioner of Police, applied under s 87 and s 92 of the Community Protection (Offender Reporting) Act 2004 for an interim child protection prohibition order in the following terms:

   1.The Respondent must not reside at premises other than those premises which are supervised or supported through funding from the Disability Services Commission ('Commission') ('the Residential Premises').

   2.The Respondent must not leave the Residential Premises unless:

   (a)He is with a caseworker; or

   (b)He has a caseworker's prior written permission to be away from the Residential Premises for the specified place where he is at and for the specified time and date that he is away from the Residential Premises and for the specified mode of travel to and from the specified place.

   3.The Respondent must not without reasonable excuse, associate or have contact with any child, unless the relevant parent or guardian of that child is present and able to view the child at all times.

   4.The Respondent must not be in or within 100 metres of a school, a kindergarten or a child care centre.

   5.The Respondent must not without reasonable excuse, travel on public transport, including buses, trains and ferries at any time unless:

   (a)He is accompanied by a caseworker; or

   (b)He has a caseworker's prior written permission to be travelling during that specified time and on that specified date and for that specified mode of travel.

   6.The Respondent must not without reasonable excuse, enter or approach within 50 metres of a train, bus or ferry station unless:

   (a)He is accompanied by a caseworker; or

   (b)He has a caseworker's prior written permission to be at a train, bus or ferry station during that specified time and on that specified date.

   7.This order remains in force until the further hearing of the application.

   8.In this order, a 'caseworker' means an officer from the Commission, a police officer or any person who has written authority from an officer from the Commission or a police officer to supervise the Respondent.

3. In support of the application the applicant filed an affidavit of Lara Jane Clifton Harmsworth made on 21 January 2011 and an affidavit of William Edwin Mansas made on 8 September 2011.  The Applicant served the application and the affidavits in support on the respondent.

4. The application was heard by me on 10 October 2011.  At that hearing Mr B Meshgin of the Legal Aid Commission of WA appeared for the respondent opposing the application.

5. On 5 August 2011 the State Administrative Tribunal appointed the Public Advocate as limited guardian of the respondent with the following functions:

   1.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be appointed limited guardian of the represented person with the following functions:

   (a)To decide where the represented person is to live, whether permanently or temporarily;

   (b)To decide with whom the represented person is to live;

   (c)To determine the services to which the represented person should have access; and

   (d)To decide with whom the represented person is to associate.

6. The order made by the tribunal was a guardianship order under s 43 of the Guardianship and Administration Act 1990. The respondent was therefore a represented person within the meaning of that Act and so a person under a disability within the meaning of O 70 of the Rules of the Supreme Court 1971. By reason of O 70 r 2 the respondent could not defend proceedings other than by a guardian ad litem.  A guardian ad litem for the respondent had not been appointed.

7. At the hearing on 10 October 2011 I pointed out to Mr Meshgin that to enable the respondent to be heard in opposition to the application a guardian ad litem would need to be appointed. Mr Meshgin told me that he had overlooked the provisions of O 70 r 2. I said that on that day I would allow him to make submissions but that the respondent would need to have a guardian ad litem appointed for the further conduct of the application.

8. After hearing argument I made an interim child protection prohibition order and gave directions in the following terms:

   1.The Respondent be prohibited from 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.

   2.The Respondent be prohibited from travelling on, or being in the vicinity of, public transport between 7.30 am and 9 am and between 3 pm and 4.30 pm Monday to Friday excluding public and school holidays.

   3.This order remains in force until the further hearing of the application.

   4.The Applicant file and serve any further affidavits in support of the application by 31 October 2011.

   5.The Respondent file and serve any affidavits in reply by 21 November 2011.

   6.Further hearing of this application will be heard at 2.15 pm on 5 December 2011 in the District Court.

9. A registrar of the District Court has issued a summons in accordance with s 92(6) of the Community Protection (Offender Reporting) Act and it has been served on the respondent who was present at the hearing of the application.

10. Mr Meshgin appeared for the respondent.  On 24 November 2011 the State Administrative Tribunal revoked the guardianship order.  The tribunal's order was in the following terms:

    1.The guardianship order is revoked.

    The Tribunal notes the following:

    [TAK] is currently subject to a Community Based Order made on 6 September 2011; an Interim Child Protection Prohibition Order made on 10 October 2011 and a Written Lawful Instruction made on 26 October 2011 pursuant to the Community Based Order and Interim Child Protection Prohibition Order.

    When the application for a Child Protection Prohibition Order is finally determined the appropriate representative of Teem Treasure will advise the Public Advocate of the outcome and the Public Advocate will, pursuant to s 97(1)(c) of the Guardianship and Administration Act 1990, investigate whether [TAK] is in need of a guardian.

    Prior to that time, if the circumstances of [TAK] change so as to warrant the making of a guardianship application, the parties are at liberty to make such an application.

11. The respondent was therefore no longer a person under a disability and no longer required a guardian ad litem to be appointed for Mr Meshgin to be heard in opposition to the application.

12. At the hearing on 5 December 2011 the applicant applied, pursuant to s 87 and s 90 of the Community Protection (Offender Reporting) Act for a child protection prohibition order in the following terms, which were contained in a minute of proposed orders dated 5 December 2011:

    1.The Respondent must not reside at premises other than those premises which are supervised or supported through funding from the Disability Services Commission ('the Residential Premises') except that the Respondent may spend weekends and public holidays with his parents residing at 4 Parken Court, Edin Hill WA 6054.

    2.Subject to the exception in 1 above, the Respondent may only leave the Residential Premises:

    (a)Between the hours 8 am and 7 pm; or

    (b)When accompanied by a case worker.

    3.The Respondent must not without reasonable excuse, associate or have contact with any child, unless the relevant parent or guardian of that child is present and able to view the child at all times.

    4.The Respondent must not be in or, loiter within 100 metres of a school, a kindergarten or a child care centre.

    5.The Respondent must not without reasonable excuse:

    (a)travel on public transport, including buses, trains and ferries; or

    (b)be within 50 metres of a bus, train, ferry or train station,

    between the hours of 8 am and 4.30 pm on weekdays (excluding school holidays when the Respondent cannot travel on public transport at any time), unless:

    (i)he is accompanied by a caseworker; or

    (ii)he has prior written permission from a police officer or caseworker to be at a train, bus or ferry station during that specified time and on that specified date.

    6.In this order:

    (i)a 'police officer' means any police officer from the Sex Offender Management Squad (SOMS); and

    (ii)a 'caseworker' means the case manager from Teem Treasure Pty Ltd, or any person who has written authority from the caseworker or a police officer to supervise the Respondent.

13. On the hearing of the application evidence may be given orally or by affidavit – s 86 Community Protection (Offender Reporting) Act and the standard of proof is the balance of probabilities – s 112.

14. In support of the application the applicant filed an affidavit of Ian Knight made on 30 October 2011, an affidavit of William Edwin Mansas made on 31 October 2011, an affidavit of Lara Jane Clifton Harmsworth made on 31 October 2011, an affidavit of Geoffrey David Bull made on 2 November 2011 and an affidavit of Catherine Mary Shand made on 3 November 2011.  I also heard oral evidence from Ms Shand.  The Applicant did not rely upon the affidavit of Constable Bull.

15. William Edwin Mansas is a Detective Sergeant of the Western Australian Police. In his affidavit of 13 October 2011 he gives evidence of the respondent’s offending and the facts of the offending. That evidence is based in large part on Western Australian Police records. The evidence is admissible under s 79C of the Evidence Act 1906. Lara Jane Clifton Harmsworth is a clinical psychologist employed by the Disability Services Commission who has provided psychology services to the respondent and has examined the Commission's files and records on him. Her evidence as to matters contained in those files and records is also admissible under s 79C of the Evidence Act.  The basis of the opinions expressed by Ms Harmsworth in her affidavit is specified in that affidavit, namely her dealings with the respondent and the materials on the Commission's files.  In my view the opinions are admissible within the principles explained in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.

16. The court may make a child protection prohibition order only if satisfied that the respondent is a reportable offender, that he poses a risk to the lives or sexual safety of one or more children or children generally and that making the order will reduce that risk – s 90(1).  It is not necessary that the court be able to identify a risk to a particular child or particular children or a particular class of children – s 90(2).  In determining whether to make a child protection prohibition order the court must take into account the matters specified in s 90(3).  If it makes a child protection prohibition order the court must specify the term for which the order remains in force, which must not be more than 5 years – s 91.

17. In Commissioner of Police v ABC [2010] WADC 161 [16] ‑ [17] I held, in relation to an application for a past offender reporting order under s 19, that 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 and that a risk to the lives or sexual safety of a person or persons is a risk of a person or persons being the victim of a serious physical assault that may threaten the person's life or a risk of a person or persons being the victim of a sexual offence. I interpret the provisions of s 90 in the same way.

18. The respondent was born on 5 August 1985.  He is now 26 years old.  In August 2003 his intellectual functioning was assessed by a psychologist at the Disability Services Commission as being on the cut‑off between the extremely low and the borderline range of cognitive functioning.  Approximately 2% of the population have the same level of cognitive functioning.   In September 2003 he was diagnosed with autism by two psychologists and a speech pathologist employed by the Disability Services Commission.  Autism is a pervasive developmental disorder that is characterised by impairments in social and communication skills and a restricted range of behaviour and interests.

19. The respondent has a lengthy record of offending.   The facts of some of the offences are summarised in the affidavit of Detective Sergeant Mansas.   On 18 August 2004 he was convicted of two offences of aggravated indecent assault.  The victims were children.  These offences are reportable offences under the Community Protection (Offender Reporting) Act and the respondent is therefore a reportable offender.  The victim of one of the offences was a 13‑year‑old female who was waiting at a bus station to catch a bus to school.  While she was with school friends the respondent rubbed his hand over breasts on top of her clothing.  The victim of the other offence was a 14‑year‑old female who was waiting at the same bus station.  The respondent approached her when she was sitting on a bench.  He stroked her right arm and then moved his hand across onto the outside of her clothing and pressed down on her right breast.  He moved his hands down onto her right leg and towards her groin.  The victim pushed the respondent away.  He then stood looking at the victim, trying to look up her skirt.

20. The respondent was also convicted on 18 August 2004 of an offence of wilful exposure and an offence of assault.  These offences were committed at the same bus station as the aggravated indecent assault offences were committed, but on a different day.  He pulled down the front of his pants and exposed his genitals to a group of female students waiting to get on a bus and he threw a rock at a bus, striking the head of a student on the bus.  The respondent was sentenced to an 18 month supervised community based order for all four offences.

21. On 14 March 2006 the respondent was convicted of breach of a protective bail condition, assault, disorderly behaviour in public, doing an indecent act in public, two offences of making a statement creating a false apprehension as to the existence of threats or danger, stealing and wilful exposure.   The respondent was sentenced to an 18 month supervised community based order for all offences.  The respondent committed the assault offence on a train.  He approached a group of female students.  He sat next to a 12‑year‑old girl and placed his knee on her knee.  When she told him to get off her the respondent used obscene language to the student and her companions.  While he was on bail for this offence the respondent committed the breach of bail offence by travelling on a train.  The offences of wilful exposure and doing an indecent act in public were committed on separate days.  The facts of the offence of doing an indecent act in public were that he masturbated in a public area after being asked to leave a brothel.  The facts of the offence of wilful exposure were that he masturbated in a public area after being asked to leave an adult products store.

22. On 3 April 2007 the respondent was convicted of an offence of disorderly behaviour in public for which he was fined $50.  The respondent committed this offence by sitting naked in the rear of a bus in which there were adult and children passengers.

23. On 5 July 2007 the respondent was sentenced to a six month community based order for an offence of assault.  The victim of the offence was a 12‑year‑old girl he verbally abused on a train, followed off the train and pushed, causing her to fall onto the right side of a bus which was coming to a stop.  The respondent committed this offence on 4 June 2007. Following the offence the respondent followed and was abusive to the same victim on three separate occasions.  On 8 October 2007 he was convicted of stalking the victim and sentenced to imprisonment for 6 months and 1 day.

24. On 21 August 2008 the respondent was convicted of two offences of breaching a Violence Restraining Order by approaching the victim of the assault and stalking offences for which he had been convicted in 2007.  He was sentenced to two concurrent sentences of imprisonment for 6 months and 1 day, suspended for 18 months.

25. On 14 August 2008 Kennedy CJDC made an interim child protection order in respect of the Respondent.  It was in the following terms:

    2.The Respondent be prohibited from 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.

    3.The Respondent be prohibited from travelling on, or being in the vicinity of, public transport between 7.30 am and 9 am and between 3 pm and 4.30 pm Monday to Friday excluding public and school holidays.

26. On 28 November 2008 O'Brien DCJ made a child protection prohibition order in respect of the respondent.  The order was for two years and was in the following terms:

    2.The respondent is prohibited from:

    (a)without reasonable excuse, 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)without reasonable excuse being within 100 metres of a school, kindergarten or child care centre;

    (c)travelling on public transport or being within 50 metres of any bus, ferry or train station except;

    (i)during the house of 10.00 am and 2.00 pm on weekdays (excluding school and public holidays); and

    (ii)when travelling to or from work, medical appointments or other occasions which, in the opinion of an ANCOR or other authorised police officer, are reasonably necessary [50].

27. On 29 September 2009 the respondent was convicted of an offence of indecent assault, which was committed on 16 July 2009.  The victim of that offence was a 17‑year‑old girl who he followed from work at a clothing store in a shopping arcade into an elevator.  He spoke to her in the elevator and asked her if she had a boyfriend.  The victim and the complainant alighted from the lift.  Shortly afterwards the respondent followed the victim into an area marked 'Staff Only'.  He walked up behind her, ran his hand up her arm, moved it across her shoulder and stroked up and down her left buttock.  The victim walked into a store room and locked the door.  As the victim of this offence was a child the offence is a reportable offence.  The offence breached the suspended terms of imprisonment imposed on 21 August 2008.  The respondent was sentenced to imprisonment for the offence of indecent assault and the suspended terms of imprisonment were ordered to be served.  On appeal the respondent was sentenced to 7 months imprisonment for the offence of indecent assault, ordered to be served cumulatively on the suspended terms of 6 months and 1 day imprisonment which had been ordered to be served.

1. On 17 March 2010 the respondent was convicted of five offences of failing to comply with prohibition orders made under the Community Protection (Offender Reporting) Act. The orders he breached were the child protection prohibition orders that had been made by Kennedy CJDC and O'Brien DCJ. He committed the offences by being at public transport stations or travelling on public transport in hours prohibited by those orders.  He was sentenced to imprisonment for those offences.  On appeal the sentences imposed for the first four offences were 3 months imprisonment and for the fifth offence the sentence was 6 months imprisonment.  All sentences were to be served concurrently.  The respondent completed serving the terms of imprisonment the day after the appeal was heard.

2. On 4 November 2010 the respondent committed an offence of indecent assault upon a woman he approached in a hotel foyer.  He approached the victim and told her that he wanted to have sex with her.  The victim stepped into a lift.  The respondent took hold of the victim by her right shoulder and pulled her out of the lift.  The victim struggled and the respondent released her.  The respondent was remanded in custody when charged with this offence.  He was released on bail on 1 March 2011.  It was a condition of his bail that he follow the directions of his parents and of the coordinator of the Intellectual Disability Diversion Programme.  On 6 September 2011 he was sentenced to a community based order for 6 months.  As part of that order the respondent is obliged to follow a programme run by Teem Treasure and to reside at a group house operated by Teem Treasure.  Teem Treasure is a non‑governmental agency that offers support to people with disabilities.

3. I have summarised in these reasons the most serious conduct of the respondent.  The affidavits of Detective Sergeant Mansas and Sergeant Knight contain details of other behaviour of the respondent which ranges from unpleasant to offensive behaviour.  Based on all of the respondent's behaviour Detective Sergeant Mansas is of the view that orders are necessary to protect the community from the respondent's threat of harm to the sexual safety of children generally.  Detective Sergeant Mansas is an experienced police officer based at the Sex Offender Management Squad.  By reason of that experience he is qualified to express that opinion, however the weight I give to it is limited.  His evidence does not have the same weight as the evidence of a person with qualifications and experience in behavioural studies such as psychology who has interviewed and assessed the respondent.

4. From January 2004 until September 2008 Ms Harmsworth provided psychological services to the Respondent.  Since September 2008 Ms Harmsworth has not provided direct psychological services to the respondent but she has liaised with people providing support and services to him.  In Ms Harmsworth's opinion, based on the age of his victims, the respondent is attracted to females of approximately teenage age.  From her discussions with the respondent she believes that he may have difficulty determining the age of girls.  It is not uncommon for people with autism to have difficulty in assessing a person's age.

5. Ms Harmsworth provided intensive and extensive clinical psychological intervention to the respondent between January 2004 and September 2008.  She found it very difficult to engage the respondent in that intervention.  He mainly attended appointments when he was ordered by courts to do so and he often refused to participate in sessions, became agitated and verbally aggressive, arrived late and spoke about topics that interested him.

6. In Ms Harmsworth's opinion the respondent has great difficulty understanding social rules and norms, has a lack of empathy  with others, has a need to feel in control of his environment, will often go to extreme lengths to obtain that control and likes things in his life to be routine and predictable.

7. In Ms Harmsworth's opinion the respondent presents a significant risk to the safety and sexual safety of older children (teenage and pre‑teenage) and young women.  When he is in the community he spends a lot of time travelling on public transport with no purpose.  This travel brings him into contact with a lot of people, including potential victims.  During the time that Ms Harmsworth has known the respondent it has become clear to her that he does not have the capacity to change his behaviour or he is not willing to do so.  In Ms Harmsworth's opinion transport restrictions will assist the respondent to change his behavioural patterns and routines, which appear to be too entrenched for him to change of his own volition.  By changing these patterns and routines the respondent will be able to develop new, more purposeful activities which will reduce the risk of his reoffending by changing his behaviour and limiting the opportunities for him to come into contact with potential victims.  The fact that the respondent has not been charged with an offence since being released on bail on 1 March 2011 suggests to Ms Harmsworth that the requirement to follow specific plans or directions has had a positive impact on his offending behaviour and may be assisting him to change his behavioural patterns.

8. Ms Harmsworth does not consider that an order that the respondent reside at premises funded by the Disability Services Commission is required as the Public Advocate has the power to decide where he is to live.  Ms Harmsworth supports the respondent being required to engage in functional, purposeful activities, such as the program run by Teem Treasure, his being required not to associate with children without that child's parent or guardian, his not being permitted to travel on public transport at times children will be travelling to and from school, that he be permitted to travel on public transport only when attending appointments or planned, functional daily activities.  Ms Harmsworth considers it necessary to make clear to the respondent that the prohibition on him associating with children includes an prohibition on him associating with teenagers, that the transport restrictions be written in a clear concrete manner covering all possibilities, that his parents and staff providing support to him are provided with a copy of the restrictions and the clear consequences of failing to comply with any restrictions are explained in the information provided to him.

9. Ms Shand is a senior service coordinator with Teem Treasure.  Ms Shand has provided her affidavit in support of the applicant's application for child protection prohibition orders.  The respondent has lived at accommodation operated by Teem Treasure since 4 July 2011. For part of that time he has been staying with his parents on weekends and he has been doing so since the order made by me on 10 October 2011.  In the accommodation provided by Teem Treasure he has support 24 hours a day and he has activities from Monday to Friday from 10.00 am to 4.00 pm.  When he is with Teem Treasure staff the respondent on occasions behaves inappropriately.  Ms Shand has deposed that the respondent has stared at and been very vocal regarding young girls and what they are wearing and she has annexed to her affidavit incident reports which report occasions where he has been verbally aggressive.

10. Ms Shand has also annexed to her affidavit a letter from the respondent's Community Corrections Officer dated 26 October 2011 warning him for failing to comply with his community based order by failing to attend an appointment with Teem Treasure on 21 October 2011.  The letter also states that he has breached the interim child protection prohibition order of 10 October 2011.  The letter does not specify how he is alleged to have breached the order.

11. Ms Shand has deposed that Teem Treasure is able to support the respondent in 24 hour a day supported accommodation and it has staff who can accompany the respondent in the community.  Teem Treasure is not able to take any responsibility for the respondent's actions if he is alone in the community and would not agree to being involved in providing written authority for him to travel independently.  In her oral evidence Ms Shand gave evidence that the respondent has benefited from the structure of programmes at Teem Treasure.  This evidence is consistent with the evidence of Ms Harmsworth that requiring the respondent to follow directions assists the respondent to change his behavioural patterns.

12. I find that the respondent is a reportable offender.  He has autism and a low intellect.  He is attracted to young females and if his life is not structured he will engage in behaviour that will make it likely that he will come into contact with young children by travelling aimlessly on public transport.  If he does so he will be at risk of coming into contact with girls.  If he does come into contact with young girls then, by reason of his attraction to them and his lack of empathy, there is a risk that he will indecently assaulting girls as he has done in the past.  If the respondent is required to live at accommodation provided by Teem Treasure and he participates in Teem Treasure programmes he may develop routines of behaviour that will reduce his risk of committing indecent assaults on girls.   Ms Harmsworth's affidavit was made before the guardianship order was reversed on 24 November 2011.  The Public Advocate no longer has any function to decide where the respondent is to live.  In my view there is a need to make an order prohibiting the respondent from residing at premises other than those supported by the Disability Services Commission so that he can obtain those benefits.  The likelihood of his participating in Teem Treasure programmes will be increased if he does not travel on public transport between the hours of 8.00 am and 4.30 pm on weekdays.  I am not satisfied that the curfew requirement contained in par 2 of the applicant's minute of 5 December 2011 will reduce the risk of the respondent committing sexual offences against children.  I am satisfied that the other orders sought by the applicant will do so.  The order proposed in par 3 should be amended to make clear to the respondent that it includes teenage children, by adding after the word 'child' the words 'including any teenager under the age of 18'.

13. The order proposed in par 4 should be amended by adding after the word 'not' the words 'without reasonable excuse' and by deleting the words 'loiter within 100 metres of' and the comma immediately before those words and substituting the word 'near'.  With those amendments I make orders in terms of pars 1, 3, 4, 5 and 6 of the minute of proposed orders dated 5 December 2011.

14. These orders are limiting on the respondent's freedom.  The applicant asks for the orders to be for a period of 2 years.  I am not satisfied that it is appropriate to do so.  In my view the term of the orders should be limited to a year. At the end of a year the applicant can, if he wishes to do so, apply for another child protection prohibition order with up to date information as to the respondent's progress under the Teem Treasure program.