Director of Public Prosecutions for Western Australia v Allen - [2006] WASC 160

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- PAUL DOUGLAS ALLEN ALSO KNOWN AS PAUL ALAN FRANCIS DEVERELL [2006] WASC 160

CORAM: BLAXELL J

HEARD: 23, 26 & 30 JUNE & 1 AUGUST 2006

DELIVERED : 4 AUGUST 2006

FILE NO/S: MCS 21 of 2006

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
PAUL DOUGLAS ALLEN ALSO KNOWN AS PAUL ALAN FRANCIS DEVERELL
Respondent

Catchwords:

Criminal law - Miscellaneous matters - Dangerous Sexual Offenders Act 2006 - Application for continuing detention or supervision order - Preliminary hearing - Expiration of sentence prior to preliminary hearing - Whether respondent should be detained in custody until final hearing

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Order that respondent undergo examination by two psychiatrists
Decision on interim custody order adjourned sine die subject to the respondent entering into an undertaking as approved by the Court

Category: B

Representation:

Counsel:

Applicant: Mr K P Bates
Respondent: Mr N J Mullany (appearing pro bono)

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: In person

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

Director of Public Prosecutions for Western Australia v Williams [2006] WASC 140

Case(s) also cited:

Attorney-General for the State of Queensland v Downs [2005] QSC 16
Attorney-General for the State of Queensland v Fardon [2003] QSC 331
Attorney-General for the State of Queensland v Foy [2004] QSC 428
Attorney-General for the State of Queensland v Foy [2005] QSC 1
Attorney-General for the State of Queensland v Francis [2004] QSC 128
Attorney-General for the State of Queensland v G [2004] QSC 442
Attorney-General for the State of Queensland v Nash [2003] QSC 377
Attorney-General for the State of Queensland v W [2004] QSC 262
Attorney-General for the State of Queensland v Watego [2003] QCA 512
Attorney-General for the State of Queensland v Watego [2003] QSC 367
Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 78 ALJR 1519
M v M (1988) 166 CLR 69

BLAXELL J: This is an application under the Dangerous Sexual Offenders Act 2006 (WA) ("the Act") for either a continuing detention order or a supervision order in respect of the respondent. When the application was filed on 16 June the respondent was serving a sentence of imprisonment for a serious sexual offence which sentence was due to expire on 23 June 2006. However the respondent had been released from custody on 13 June 2006 pursuant to s 31(2) of the Prisons Act 1981 (WA) which provides that:
"The Superintendent may authorise the discharge from custody of a prisoner at any time during the period of 10 days immediately before the day when his sentence is due to expire."
Since then, the application has taken an unusual course, and the preliminary hearing had to be adjourned a number of times. These are my reasons for decision on the preliminary hearing.

The scheme of the Act

In my decision in Director of Public Prosecutions for Western Australia v Williams [2006] WASC 140 I outlined the general scheme of the Act, and it is unnecessary to repeat all that I then said.
In essence, the Act provides for a system of preventative detention or ongoing supervision of serious sexual offenders who at the time of their release from imprisonment represent an "unacceptable risk" to the community. For this purpose, the DPP may apply for a continuing detention order or a supervision order at any time during the last six months of a sentence of imprisonment being served by a respondent for a "serious sexual offence" (as defined in s 106A of the Evidence Act 1906).
Section 11 requires the court to fix a date for a preliminary hearing, which date is to be within 14 days of the application being filed. The main purpose of the preliminary hearing is for the court to decide whether it is satisfied that there are reasonable grounds for believing that it "might" find that the offender is a "serious danger to the community". If the court is satisfied that the application meets that test, it must fix a date for the final hearing and order that the offender undergo examinations by two psychiatrists named by the court for the purposes of preparing reports to be used at the final hearing. The court also has a discretion to order the continuing detention of the respondent during the interim period until the final hearing (s 14(2)).
Ultimately, the court can only find that an offender is a serious danger to the community if it is satisfied that:
" ... there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence." (s 7(1))
The DPP bears the onus of satisfying the court by "acceptable and cogent evidence" and to "a high degree of probability" that the respondent is a serious danger to the community (s 7(2)). In deciding whether it is so satisfied, the court must take account of particular factors as specified in s 7(3) including the reports of the psychiatrists prepared pursuant to s 37.

The proceedings on the present application to date

As already noted, when the present application was filed on 16 June the respondent had been released from custody but was still subject to the sentence of imprisonment due to expire on 23 June 2006. A warrant was then issued for his arrest to ensure that he would be present at the preliminary hearing of the application, and that warrant was executed on 18 June 2006.
The preliminary hearing was set down for 23 June 2006, but on that date the respondent was unrepresented, and I considered that he lacked the ability to adequately represent himself. This being so there was obvious unfairness in proceeding with the preliminary hearing while he remained unrepresented.
In these circumstances I ultimately found it necessary to adjourn the preliminary hearing for one week until 30 June 2006. As the respondent's sentence had expired, and I had no power under the Act to make an order for his custody or supervision, he had to be released back into the community once again and remain unsupervised for this period.
When the preliminary hearing resumed on 30 June 2006 the respondent was represented by counsel who was appearing on a pro bono basis. He then applied for a further adjournment of the preliminary hearing until at least 25 July to allow time for assessments by two psychiatrists of his own choosing. The respondent wished to have those assessments considered for the purposes of the preliminary hearing, and s 12 of the Act specifically provided him with the right to have such evidence taken into account.
I decided that I should grant that adjournment notwithstanding that I still could not order the detention of the respondent until the preliminary hearing had been determined. My decision to grant that further adjournment was influenced by the respondent's offer of a personal undertaking as to his future behaviour during the period until the preliminary hearing could be completed. The proposed undertaking was very detailed, and was settled in collaboration with the DPP (who participated in the exercise on a provisional basis given its primary submission that the preliminary hearing should be immediately determined and an order made for the respondent to be placed in custody). In essence, the undertaking provided for the respondent to reside at a particular place and for his activities to be monitored each day. It required him to report daily to a police station and/or a Community Corrections Officer. He was also to avoid places such as schools, playgrounds and also shopping centres during particular times when it could be expected that there would be children about.
Although the proposed undertaking went some distance towards minimising the risks of further sexual offending by the respondent, it obviously could not provide a total guarantee. As against this I had to take into consideration the injustice to the respondent if he was denied the opportunity of presenting evidence to the preliminary hearing. After weighing these competing factors I considered that the balance favoured the granting of the adjournment given that the undertaking provided some measure of confidence that the respondent would not re‑offend over the following period of approximately one month. There was also a ready method of enforcing the undertaking in the event of any breach given that the preliminary hearing could be relisted at short notice and a custody order then made.

The history of the respondent's offending

Over the period between 1998 and 2001 the respondent committed a total of 12 offences of a sexual nature against young children. The complainants were of various ages between 4 years and 10 years, and the respondent at the time was aged between 18 and 21 years. The facts of those offences (in chronological order) were as follows.
During 1998 the respondent came to know the first complainant, who was a 7‑year‑old boy related to friends of his family. While in the house of the boy's grandmother, the respondent put his hand down the complainant's pants and masturbated his penis. At around about the same time but on a different occasion, the complainant performed an act of fellatio on the same child.
Not long afterwards (on the one day in late 1998 or early 1999) the respondent committed a total of three offences of indecent dealing against a 7‑year‑old girl and her 9‑year‑old brother. The complainants were his cousins, and the offences occurred in the house of an aunt. Two offences involved the respondent touching the girl's vagina on the outside of her clothing. He committed the other offence when he masturbated the 9‑year‑old boy's penis.
The three children complained to their parents about what had happened and the respondent admitted his wrongdoing. There was then an attempt to resolve the issues within the family and the respondent was referred to a psychologist for counselling. However, in April 1999 a complaint was made to the police, and the respondent was charged with a total of five offences and released to bail.
While on bail on 25 August 1999 the respondent was at a video store in Girrawheen. He approached a 10‑year‑old boy who was also in the store and started a conversation concerning videos and computer games. The respondent then indecently dealt with the boy by rubbing him on the buttocks and feeling his penis on the outside of his clothing.
On 15 February 2000 the respondent appeared in the District Court and pleaded guilty to all seven offences. He was sentenced to a total effective term of 4 years imprisonment with eligibility for parole backdated to reflect the period that he had spent in custody since committing the offences on the boy in the video store.
While in prison the respondent participated in the Sex Offenders Treatment Programme. In the course of treatment sessions he volunteered the fact that he had committed additional sexual offences on other children at about the same time as the offences of which he had been convicted. These offences were committed between December 1998 and June 1999 on two other male cousins of the respondent who were then aged 5 years and 4 years respectively. While the respondent and the two cousins were at an aunt's house he pulled down their pants and performed fellatio on each of them on two separate occasions.
The respondent was accordingly charged with four separate counts of sexual penetration of a child under the age of 13 years and on 10 May 2001 pleaded guilty to those offences in the District Court. Given the exceptional circumstance that the offences had only come to light as a result of the respondent's own admissions he was sentenced to a total of 4 years imprisonment suspended for two years.
On 12 February 2001 the respondent was released to parole subject to special conditions involving continued counselling and participation in a Sex Offender Treatment Programme. On 22 September 2001 while still on parole and subject to the suspended imprisonment order, the respondent committed a further offence of indecent dealing with a child under 13 years.
This last offence was committed on a 9‑year‑old boy who was the cousin of a friend of the respondent. The boy was temporarily staying at the friend's house, and the respondent met him there while on a visit. After the boy had gone to bed for the night, the respondent entered his room and touched him in the vicinity of his groin.
After being charged with this offence the respondent pleaded not guilty but was convicted by a jury following a two‑day trial. He was then sentenced to 18 months imprisonment, and also ordered to serve the 4 years imprisonment which had previously been suspended. It was this total sentence of 5½ years which was still being served at the date of the present application.

The materials before me

The affidavit in support of the application is sworn by a psychologist and senior forensic consultant with the Offender Services Branch of the Department of Corrective Services. It annexes three reports (dated 2 December 2004, 17 June 2005, and 14 November 2005) from psychologists who have treated the respondent during the course of his imprisonment. I have also been provided with the transcript of the proceedings each time that the respondent was sentenced.
The contents of these reports and transcripts show that from an early age the respondent was socially isolated and subject to depression. At the age of 11 he attempted suicide by hanging, and it is possible that he suffered some cognitive damage as a result of asphyxiation at that time. At 15 years of age he was diagnosed with ADD and psychrometric testing revealed that he "may experience difficulty with his ability to process information and memorise new information".
The respondent had problems relating to people who were of the same age or older than himself and preferred the company of younger children. From approximately 13 years of age he developed inappropriate sexual fantasies about children, and particularly about boys aged approximately 9 years. By the time of his imprisonment, these tendencies had developed to the stage that he would become sexually aroused by non‑pornographic images or pictures of children such as those that are commonly seen on television or in household magazines.
During treatment within the prison system the respondent initially showed some insight and understanding of his offending behaviour. He also improved his social skill levels. However:
" ... his progress in the sexual interest and self management domains were of concern. In particular Mr Deverell advised that he was experiencing intrusive deviant fantasies throughout the programme and appeared to continuously struggle with the implementation of appropriate coping strategies." (Report 25 November 2004)
During individual counselling sessions in 2005 the respondent was "open and honest in his communication" but appeared "ambivalent towards his decision and motivation to change". In this regard he admitted to continued fantasies about children, and "his management strategies appear[ed] to be insufficient or their implementation somewhat haphazard".
Because of the respondent's difficulty in controlling his libido he was ultimately assessed for pharmacological treatment and as from 15 May 2005 began daily medication of Androcur for reduction in his sexual drive.
During the following months the respondent was able to limit his sexual fantasies about children, but in August 2005 he stopped taking the medication. This resulted in an increased level of sexually deviant thinking and the respondent "seemed concerned" by this loss of control. Thereafter he returned to using the Androcur but he required a higher dose in order to regain the previous level of control over his sexual fantasising.
As at 14 November 2005 it was recommended that in the event of being released on parole the respondent should remain on Androcur, receive an intensive level of community supervision, attend the Community Based Sex Offender Maintenance Programme, and have no unsupervised contact with children under 16 years of age.
However, the respondent was never released to parole, and this may well be due to his previous breach and to an ongoing assessment that he was at high risk of re‑offending. This assessment was made in accordance with the "Static 99" method which is not based upon any clinical examination but upon actuarial factors such as age, number of offences, number of appearances in court, characteristics of victims, and the like. The only one of these factors which can ever change is the offender's age, and accordingly such an assessment will always remain the same regardless of the progress or lack of progress made in treatment.
The contents of the treatment reports are consistent with the subsequent psychiatric assessments (by Dr Steven Patchett and Dr Adam Brett) which were arranged on behalf of the respondent. The following conclusion to Dr Brett's report would tend to reflect the overall consensus of opinions:
"1.Given Mr Allen's previous behaviour he would be placed in a high risk category for re‑offending in sexual violence if no efforts were made to manage his risk. This is based on his Static 99 assessment. If he re‑offends it is likely that Mr Allen would re‑offend in a similar manner and that the victims are likely to be male children. The steps that should be taken to minimise Mr Allen's risk are that he should continue on the anti‑libidinal medication. This appears to have previously had an effect on his fantasising and his libido. This can be monitored by his general practitioner. He should have ongoing maintenance sex offender programs within the community. He should have ongoing supervision and his whereabouts should be known. He should avoid high (risk) situations where he is exposed to young children.
The circumstances, which might exacerbate Mr Allen's risk for sexual violence, would include:
•Instability in his relationship
•Employment problems
•Exposure to high risk situations
•Cessation of his medications
If Mr Allen is given a custodial sentence he should have ongoing sex offender treatment and ongoing use of anti‑libidinal medication. Risk factors, which are amendable to change, should be targeted. His Static 99 will not change over time. If Mr Allen is released into the community I believe that given his base line risk he would benefit from supervision and the conditions should include the factors mentioned previously."
The respondent is now 26 years of age. At the time of committing his first offences he was 18 years old and living with his parents, but they then moved to the country because of their inability to cope with what had occurred. Prior to entering the prison system at the age of 20, the respondent met an older man who he now lives with and who is his partner. This is a surprising development which has come about as a result of the partner regularly visiting the respondent and providing support while he was in prison. It is also a significant development given the opportunity that it provides for the respondent to have a legitimate sexual relationship.
When the respondent was released from prison on 14 June 2006, the partner had arranged for him to be employed as a kitchen hand in a restaurant five nights per week. In a letter dated 28 June 2006 the restaurant proprietor describes the respondent as a hard‑working and valuable employee. The respondent's position does not give him any contact with the general public or with customers at the restaurant. Furthermore, all of the staff "are aware of the terms of his sentence and have no hesitation or qualms in working beside him".
Pursuant to the Community Protection (Offending Reporting) Act 2004 (WA) the respondent is also obliged to report regularly to his local police station and is currently doing so every Tuesday, Wednesday and Friday. On every Monday and Thursday he reports to a Community Corrections Officer as required by the terms of his undertaking.

The standard of proof required at the preliminary hearing

The application can only progress beyond the preliminary hearing if I am "satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community" (s 14(1)). If I am so satisfied, the standard of proof ultimately required for any such finding is "to a high degree of probability" (s 7(2)).
Although the Act does not specify the standard of satisfaction required under s 14, the respondent submits that it must be to the criminal standard beyond reasonable doubt. This submission is based primarily upon s 40 which provides that:
"Proceedings under this Act ... are to be taken to be criminal proceedings for all purposes."
The respondent also relies upon the general principles of statutory construction which favour a strict interpretation of legislative provisions which affect personal liberty.
In Queensland, the nearly identical Dangerous Prisoners (Sexual Offenders) Act 2003 requires that the court at the preliminary hearing be satisfied that "there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a (final) order". This test is very different to that under s 14, and Queensland also has no equivalent to s 40. Accordingly, Queensland authorities as to the appropriate standard of proof at a preliminary hearing are of little assistance when construing s 14.
Quite obviously, s 14 must be construed within the context of the overall scheme under the Act. In this regard, the Act requires that every application must first pass the hurdle set by s 14, and that hurdle is a fairly low one. The test is not that the court be satisfied that there "might" be an ultimate finding under s 7(1). The test is even lower than that and is that the court be satisfied that there are "reasonable grounds for believing" that there might be such a finding.
That the decision required by s 14 is very preliminary in nature is shown by s 41 which allows the court to make its determination entirely from a consideration of the documents filed and without the respondent appearing or being heard. Furthermore, the documents are permitted to be statements based upon information and belief (s 13).
To my mind, these provisions are inconsistent with there being a requirement for a strict criminal standard of proof under s 14. It also must be remembered that the court is being asked to determine whether there are reasonable grounds for believing that something "might" happen, in the sense that the application may have that possible outcome.
It follows that the role of the court under s 14 is simply to make a preliminary assessment of the strength of the applicant's case that the respondent is a serious danger to the community. That preliminary assessment is made with the knowledge that such a finding can only be made if it is proven by cogent evidence and to a high degree of probability. If the court is nevertheless satisfied that there are reasonable grounds for believing that such a finding might be made, the application will have passed the preliminary hurdle.
To introduce a requirement that the court can only come to that conclusion if satisfied beyond reasonable doubt would be to add a gloss that to my mind is contradicted by the very nature of the process contemplated by s 14. I do not consider that the criminal standard of proof applies to the court's determination under s 14. In my view, the only relevant standard of proof is that which is required for a finding under s 7(1), and it is in that context that the court decides whether or not there are reasonable grounds for believing that such a finding might be made.

Whether I can be satisfied in terms of s 14

I consider that there are clear grounds for believing that the court might find that the respondent is a "serious danger to the community".
Firstly there is the history of his offending including the fact that serious sexual offences were committed while he was on bail on one occasion; and while he was subject to a suspended imprisonment order and on parole, on another. A fair inference from what occurred on those occasions is that the respondent was unable to restrain his deviant sexual urges despite the consequences that were likely to follow.
There is also the history of the respondent's treatment within the prison system and the difficulties that he has continued to experience in controlling his deviant sexuality. The only treatment that has offered any hope of change is the prescription of libido reducing medications, but the respondent has not always been compliant with that regime.
Finally, there is the "Static 99" risk assessment based upon empirical and actuarial data which suggests that the respondent is at high risk of re‑offending.
In light of all of this evidence I am satisfied that there are reasonable grounds for believing that the court might make a finding that the respondent is a serious danger to the community.

The naming of psychiatrists

I am accordingly required to order that the respondent undergo examinations by two psychiatrists to be named by the court for the purposes of them preparing reports as required by s 37.
It may well be that one or both of those psychiatrists will have opinions which differ from those of the psychiatrists engaged by the respondent. If so, a decision may have to be made at the final hearing as to which of the various opinions should be accepted.
It follows that in order to maintain the impartiality of the court, the Judge at the preliminary hearing should play no part in the selection of the two psychiatrists. For that reason I have arranged for the Principal Registrar of the Court to be entirely responsible for the process of selecting the psychiatrists who must now be named.
The Principal Registrar has produced two names, being Dr Mark Hall and Dr Bryan Tanney. The parties have no objection to those two psychiatrists being appointed, and I accordingly now name each of them in accordance with s 14(2)(a).

The discretion to order interim custody

Given my satisfaction under s 14 I have a discretion to order that the respondent be detained in custody until the final hearing of the application. The only alternative is for him to be released, and s 14 makes no provision for his supervision in those circumstances.
As already noted, when the application was first filed, the respondent had been released without any supervision. That situation only changed on 30 June when he entered into a personal undertaking providing for detailed supervisory conditions which minimised the risk of further offending. In the event of any breach up until today, it has been possible for the court to enforce that undertaking by simply deciding the preliminary hearing and making an interim custody order. (In those circumstances the court would obviously have been willing to make such a determination on the papers pursuant to s 41.)
The question now arises whether it is open to the court to continue the arrangements for the release of the respondent on the personal undertaking during the period between the preliminary and final hearings. This will only be a viable option if there is some effective means of enforcement in the event of any breach.
Counsel for the respondent suggests that a continuing undertaking could be enforced by means of the contempt powers under O 55 of the Rules of the Supreme Court. However this would require a notice of motion commencing separate proceedings for the common law offence of contempt. Proof of a breach would be required beyond reasonable doubt, and the respondent could only be arrested prior to the determination of the contempt proceedings if he was likely to abscond from the jurisdiction. Accordingly, it seems to me that contempt proceedings would be a very cumbersome and unsatisfactory means of enforcement.
In the end, and in the event that I consider it appropriate to continue the arrangements under the personal undertaking, counsel both agree that a more effective means of enforcement will be to simply adjourn the preliminary hearing. In other words, having made the determination under subs 14(1) and named the psychiatrists under subs 14(2)(a), I would then adjourn sine die the question of whether or not the respondent should be detained in custody.
In these circumstances, if there was any breach of the undertaking, the preliminary hearing could be quickly relisted and a custody order then made.

Whether or not there should be an immediate order for the detention of the respondent

There are a number of factors to be considered when determining whether or not I should immediately exercise my discretion to order that the respondent be detained in custody. Firstly there is the relative strength of the applicant's case that the respondent represents an unacceptable risk to the community and may commit an offence before the application can be finally heard.
Secondly, I need to consider the extent to which the court can be confident that any such risk will be sufficiently minimised by the respondent's adherence to the supervisory conditions and other requirements of his personal undertaking.
The final consideration is fundamental to the system of justice and is the undesirability of depriving the respondent of his liberty prior to the application being finally determined. In the event that the court ultimately dismisses the application or alternatively makes a supervision order, any interim detention of the respondent will have been unnecessary and possibly damaging to the long‑term interest that that community has in him maximising the chances of future rehabilitation.
Without in any way predetermining the final hearing, it seems to me that on the evidence presently available the applicant has a fairly strong case that the respondent is a "serious danger to the community". The evidence to date does suggest that the respondent may commit a serious sexual offence if there is not a continuing detention order or a supervision order, and the court may well determine that there is an "unacceptable risk" in this regard.
In the event that the court does make such a finding, there is likely to be a real issue as to which of a continuing detention order or a supervision order is the more appropriate. On the evidence presently available that issue would seem to be finely balanced.
The factors which would favour a continuing detention order include the respondent's past inability to control his sexual urges, and the limited progress that he has made with treatment. Factors which might favour a supervision order include the improvement brought about by the libido reducing medications, and his "honesty and openness" in communication. As to this last factor, it is significant that the respondent voluntarily admitted and provided the only evidence of the further offences committed on his young cousins which ultimately resulted in him serving terms totalling 4 years imprisonment.
Although there is inevitably some degree of risk to the community if the respondent continues to be released, it is my assessment that the conditions that he is currently observing will significantly minimise that risk during the limited period until the final hearing. In that regard, he is reporting to a police officer or community corrections officer five times a week, and the police have power at any time to make random visits to his house. Particulars are known of any motor vehicle driven by him, and his movements are restricted in such a way as to prevent any significant contact with children. Most importantly he is also required to continue his libido reducing medications and to undergo medical testing, treatment and counselling as and when required.
Having considered all of these matters, I have come to the conclusion that, subject to the respondent entering into a continuing undertaking on terms as approved by the court, I should defer any exercise of my discretion to order that he be detained in custody. However, in the event of any breach of that undertaking, the preliminary hearing will be immediately relisted (if necessary without appearance by the respondent) and an appropriate order will be made.

Conclusion

For all of the above reasons the orders that I now make are as follows:
(1)That the respondent undergo examinations by Dr Mark Hall and Dr Bryan Tanney for the purposes of them preparing the reports required by s 37 of the Act.
(2)Subject to the respondent entering into a written undertaking approved by the court, the question whether there should be an interim custody order be adjourned sine die.
(3)In the event of any alleged breach of undertaking, the applicant be at liberty to relist the preliminary hearing at short notice.