Director of Public Prosecutions for Western Australia v Brown [No 4]

[2011] WASC 202

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BROWN [No 4] [2011] WASC 202

CORAM:   EM HEENAN J

HEARD:   8 AUGUST 2011

DELIVERED          :   8 AUGUST 2011

PUBLISHED           :  16 AUGUST 2011

FILE NO/S:   MCS 13 of 2010

MATTER                :Sections 8, 14 and 17(1) of the Dangerous Sexual Offenders Act 2006 (WA)

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Applicant

AND

ALWYN WAYNE BROWN
Respondent

Catchwords:

Criminal law - Dangerous sexual offender - First annual review

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Decline to rescind continuing detention order

Category:    B

Representation:

Counsel:

Applicant:     Mr J Scholz

Respondent:     Mr C B Boyce and Mr A P Tehan

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Aboriginal Legal Service (WA)

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

Director of Public Prosecutions for Western Australia v Brown [2010] 405

Director of Public Prosecutions for Western Australia v Brown [No 2] [2011] WASC 191

1. EM HEENAN J:  This is the hearing of the first annual review of the continuing detention order made on 23 December 2010, in respect of Alwyn Wayne Brown, the respondent.  The reasons for the review being conducted at this date are set out in Director of Public Prosecutions for Western Australia v Brown [No 2] [2011] WASC 191.

2. The background is set out in the reasons for decision in December 2010 in Director of Public Prosecutions for Western Australia v Brown [2010] 405.  Those reasons contain the details of Mr Brown's previous convictions and periods of imprisonment.  At that time I also gave details of his history of sentences and the various treatments which he had received in prison.  I discussed, in some detail, the reports and oral evidence then presented by the examining psychiatrists, Dr S Febbo FRANZCP and Dr Brian Tanney FRANZCP.

3. After reviewing the authorities dealing with the nature and degree of proof required for a finding that a person is a serious danger to the community, I endeavoured to apply those principles to the particular case, in doing so observing at [116]:

   The observations already made reveal that there is a pattern of offending behaviour on behalf of the respondent.  It is typically sexual exhibitionism with women whom he may find on the beach, in a park or in other areas, alone or in small numbers and, far more alarmingly, a pattern of seeking out young girls in the age group of 8 to 12, to seek to ingratiate himself with them, to display pornographic material, and then to engage them in acts of personal sexual gratification, if necessary, by force.  His attempt to abduct one 8-year-old child at Broome and his offences with the two girls at Perth in 2004 are illustrative of this tendency and it is one which is recognised by the psychiatrists and which I am satisfied remains a significant and inadequately controlled tendency.

4. and at [119]:

   There is explicit evidence in the opinions of the psychiatrists that Brown remains at high risk of committing a serious sexual offence unless many features of his personality, sexual orientation and pre-occupations undergo significant change.  Efforts to produce such changes in the past have not been fully effective and it is expected that it would take an extensive series of programmes over 6 months or a year, if not more, to produce change and even then change would depend on the degree of commitment and willingness of the respondent to develop suitable insight into his problems.

5. That was the position at the end of December 2010. The review which is now being conducted must be conducted in accordance with s 33 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) which provides:

   (1)When the court, on an application made under section 29 or 30, reviews a person’s detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.

   (2)The court may, if it finds that the person subject to the order remains a serious danger to the community, either —

   (a)expressly decline to rescind the order; or

   (b)rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.

   (3)In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.

6. During this hearing the focus has been on whether or not the continuing detention order should be rescinded and a conditional supervision order substituted on conditions which have been put before the Court, and which are common in such cases.  The details of the proposed conditions are set out in exhibit B which shall become an annexure to these reasons.  The focus therefore is to consider whether or not Mr Brown remains a serious danger to the community and, if he does, whether or not it would be appropriate in all the circumstances to replace the continuing detention order with a conditional supervision order.

7. In that regard, evidence has been adduced from four witnesses, and there is a quantity of documentary evidence which is all part of exhibit A.  I can begin this examination of the evidence by summarising the evidence of Dr Capel, the forensic psychologist who has been conducting a therapeutic psychological intervention program with Mr Brown over a period of 13 sessions from 17 January 2011 to 30 June 2011.

8. Dr Capel's report is exhibit A3, commencing at page 13 of the materials before the court in exhibit A.  It is sufficient to say that Dr Capel considers that Mr Brown has made substantial progress through these therapeutic interventions; that he has established a good rapport with her; that he is cooperative and attentive in the programs; and that he has, over the last 13 sessions, indicated a willingness to participate, and has made a number of marked gains.  In her view, he has successfully completed what may loosely be regarded as phase one of a three‑phase treatment program designed to bring him to a proper realisation of his deviant sexual interests and fantasies.  There are reasonable prospects of him benefiting from further continued psychotherapy.

9. In Dr Capel's opinion, Mr Brown is not suitable for group therapy sessions, but instead needs individual personalised therapy.  With her he has made good progress in that regard.  Because of a variety of other circumstances, Dr Capel has left the Department of Corrections and is now working in a different government department and also conducts some private practice, which means that the continuation of her sessions of psychotherapy with Mr Brown are, to say the least, in doubt.  The indications are that if there is another suitable psychologist within the department, he or she will take over these programs, but if it is possible to arrange logistically, if there is sufficient funding available, and if she is willing to do so, it may be possible for Dr Capel to continue or renew this therapeutic relationship.  However, that is at the moment uncertain, although it is considered to be desirable.

10. The question which agitated some attention during the course of examination and cross‑examination of Dr Capel was whether or not phase two of the psychotherapy could successfully be conducted or completed while Mr Brown is in prison.  Upon that question, Dr Capel was not able to give any final concluded opinion, although she acknowledged that there was a number of factors which indicated that at least completion of the program could best be vindicated outside a prison setting.  My impression of her evidence was that any such conclusion would only be possible after more progress in the psychotherapeutic sessions had been achieved.

11. Dr Capel was not able to say how long completion of the psychotherapeutic program would take.  The model that she was using is typically for up to two years in group sessions, but for individual therapy such as Mr Brown, it might be shorter or longer.  She did mention that there was the risk of disengagement if Mr Brown became disheartened about his progress, or his prospects of eventual release.  She was asked whether or not he appeared to be depressed.  She said that he had reported 'low mood' on occasions, but she did not appear to accept that he was clinically depressed.  Her observation was that he was quite positive about getting out of prison eventually.  She was also asked about an anti‑libidinal pharmacological regime, but indicated that that was a matter of medical treatment which would only be undertaken or authorised by the prison medical service.

12. Dr Febbo, whom I have already mentioned in relation to the hearings during 2010, provided a further detailed psychiatric report, which is exhibit A2, and a supplementary report to that.  It is the supplementary report of 4 August 2011 which epitomises his conclusions, where he says:

    I confirm that it is my view that Mr Brown remains at high risk of committing a serious sexual offence if not subject to a continuing detention or supervision order.  My opinion in relation to whether a detention or a supervision order is the more appropriate option has been discussed in my report of 14 July 2011.

13. I can say that the substance of that report indicated that Dr Febbo was of the view that a continuing detention order would be the appropriate response and that Mr Brown was not yet ready for a supervision order, a conclusion which Dr Febbo repeated in his oral evidence in the course of his examination and cross‑examination.  Dr Febbo's reluctance to acknowledge the suitability of release on a supervision order was in part explained by his view that, notwithstanding the good progress reported by Dr Capel and which Dr Febbo himself agreed was encouraging, 13 sessions over six months was an inadequate period upon which to base a conclusion that there was marked and lasting change.  In Dr Febbo's opinion, there would need to be about 40 sessions over a period of a year before one could conclude that major change was likely.

14. On the question of the suitability and effect of anti‑libidinal pharmacological regimes, Dr Febbo also agreed that this would need to be arranged through the prison medical service after consultations with a general medical practitioner and perhaps a psychiatrist.  Dr Febbo had raised the possibility of such treatment back in 2010, and was asked to provide some reason as to why that regime may not have been embarked on even now but, apart from offering some opinions without any knowledge as to the real facts of the circumstance, he was not able to take that matter any further.

15. Importantly, however, Dr Febbo did say that the absence of an anti‑libidinal medication program was one of two major factors which led to his adverse recommendation that Mr Brown was not suitable for release on a supervision order at present.  The other major factor was the relatively short period of psychotherapeutic intervention sessions.  He acknowledged that if there were to be a trial period on anti‑libidinal medication coupled with further psychotherapy with progress matching that already reported over the last six months, there was a possibility that Mr Brown might be suitable for release on a supervision order some time within three to six months.  Although, for myself, I took the whole of his evidence to indicate an inclination towards the longer period than the shorter period.

16. Dr Febbo indicated that, so far as renewal or continuation of the psychotherapy was concerned, it would be particularly significant and preferable if that could be resumed with Dr Capel rather than with a new psychotherapist, simply to take advantage of the rapport and confidence which had been gained in the last six months of interventions.  Dr Febbo acknowledged that Mr Brown does have the capacity to undergo treatment and that the time may well come when he would be suitable for a supervision order.  However, it was Dr Febbo's opinion that Mr Brown was not ready for that at this stage.  In answer to further questions in re‑examination by leave, Dr Febbo said that the anti‑libidinal medication could be commenced in prison and then, after a satisfactory period under supervision, continued in the community. 

17. There was then evidence from Ms Wendy Wager, a senior forensic consultant psychologist and manager of the Dangerous Sexual Offenders Psychological Team.  She endorsed Dr Capel's report and explained how the department was currently negotiating to find a new psychologist who could take over the psychotherapeutic treatment regime, but she acknowledged that it might be possible for arrangements to be made for Dr Capel to continue with that work.  She could not say whether or not that would be done, as it would depend on a variety of departmental considerations.  She indicated that the advantage of persevering with Dr Capel would certainly be given weight by the department, and that the department would not close the door on Dr Capel being retained if there was likely to be an important beneficial therapeutic reason for doing so.  What will happen, therefore, remains to be seen.  Ms Wager had not herself conducted any personal assessment of Mr Brown.

18. The final witness was Elizabeth Anne Brayshaw, a Community Corrections officer from Rockingham, who has interviewed Mr Brown on at least four occasions since first becoming involved in this case in May of 2011.  It was she who had recommended further consideration of the anti‑libidinal medication and arranged for the meeting with Dr Hames in July 2011 which apparently led to Mr Brown's expression of consent to undergo such treatment.  Ms Brayshaw also assessed a number of potential locations for accommodation for Mr Brown in the community were he to be released on a supervision order, the details of which are contained in her report but which should otherwise remain confidential.

19. Ms Brayshaw had received reports from her departmental staff following drive‑by assessments of each possible location, and desktop analysis of the suitability of each location was conducted by police officers.  These had revealed that there were large numbers of young children frequenting the areas of each of those potential sources of accommodation, leading Mrs Brayshaw to express the view that she had concerns about their suitability.  The matter was not pursued in any greater detail than that but I can express the view, for reasons which I canvassed in my decision of 23 December 2010, that accommodation close to areas frequented by children regularly is likely to be unsuitable for Mr Brown.

20. In these circumstances, I have concluded that I should accept the evidence of Dr Febbo and of Dr Capel and conclude that Mr Brown remains a serious danger to the community and therefore should continue either to be the subject of a continuing detention order or a supervision order made in respect of some suitable premises ‑ not the two premises presently suggested ‑ which among other things suffer from the disadvantage of being available only for relatively short durations, and otherwise on the terms of exhibit B.

21. It seems that very encouraging progress has been made and that Mr Brown has reason to hope that if he continues to participate successfully in psychotherapeutic intervention, the time may not be too distant when he would be suitable for release on a properly structured supervision order and in respect of a suitable location or locations.  His prospect for that would be further enhanced if the anti‑libidinal medication which has been spoken of by Dr Febbo and proposed after discussion with Dr Hames were to undergo a successful trial in prison.  In those eventualities Mr Brown would have a much greater prospect of being released under a supervision order but I do not think that that time has yet been reached.

22. That being the case, the decision which I must make in accordance with s 33(2) of the Act is to decline to rescind the existing order. This order will therefore be due for further review as soon as practicable after a period of one year from today under s 29(2) or it will be possible for Mr Brown himself to bring an application for leave to review the order under s 30, should he consider such an application meritorious.