Director of Public Prosecutions for Western Australia v Brown [No 5]
[2012] WASC 276
•1 AUGUST 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BROWN [No 5] [2012] WASC 276
CORAM: McKECHNIE J
HEARD: 27 JULY 2012
DELIVERED : 1 AUGUST 2012
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:
Dangerous sexual offender - Whether detention or supervision - Publication of locality - Whether appropriate
Legislation:
Community Protection (Offender Reporting) Act 2004 (WA)
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Supervision order for eight years
Category: B
Representation:
Counsel:
Applicant: Mr J A Scholz
Respondent: Ms M R Barone
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Aboriginal Legal Service (WA)
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Hart [No 3] [2010] WASC 253
Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405
The Director of Public Prosecutions for Western Australia v Brown [2012] WASCA 102
McKECHNIE J: The respondent was declared to be a dangerous sexual offender and a detention order was made on 23 December 2010: Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405.
For reasons explained in The Director of Public Prosecutions for Western Australia v Brown [2012] WASCA 102, this is now effectively the first annual review even though 18 months have elapsed.
The issues
Question: Is the respondent still a dangerous sexual offender?
Answer: Yes.
Question: Should the respondent be detained or released on strict supervision?
Answer: Released on strict supervision for eight years.
Question: Should the photograph of the respondent or his locality be suppressed?
Answer: No.
The respondent is a dangerous sexual offender
The respondent was found to be a serious danger to the community: DPP v Brown [2010] WASC 405 [121]. In his report dated 16 July 2012 (exhibit 9), Dr Febbo concluded that in his opinion, the respondent remains at high risk of committing a serious sexual offence if not subject to a continued detention or supervision order. He confirmed this opinion at the hearing (ts 333).
The respondent does not challenge that he still remains a serious danger to the community.
There being no evidence to displace the finding by EM Heenan J, and in fact evidence that the respondent remains so, I find that the respondent is a serious danger to the community.
Why a supervision order is appropriate
Most of the hearing was devoted to the question whether the respondent should be further detained in custody or released on a strict supervision order and, if the latter, on what terms.
The respondent's progress
After hearing the evidence, Mr Scholz submitted that the respondent is a 'work in progress' and also correctly 'a borderline person because of his history and nature of his offending'. However, having regard to the state of the evidence, Mr Scholz did not point to anything against release on strict supervision.
Quite a lot has happened since the respondent was declared to be a dangerous sexual offender. In her report dated 12 July 2012 (exhibit 8), Ms Zuin noted that since 2011, the respondent has been having weekly counselling sessions with Mr Summerton. The treatment provided by Mr Summerton has focused predominantly on addressing issues around self‑regulation specific to deviant sexual fantasies and problem solving in general. Treatment has also addressed issues around intimacy deficits, feelings of rejection, supervision requirements and lack of forward planning. High risk situations and relapse prevention strategies have been identified with a more recent intense focus on managing risk in the community.
Mr Summerton (ts 366) gave evidence that by 11 July 2012 he had had 33 sessions with Mr Brown, in addition to 13 earlier sessions with Dr Caple. Ms Zuin noted that during the course of counselling, it appears that the respondent has made significant progress towards better understanding his offending behaviour, managing his negative affect and showing greater interest and curiosity about himself. Ms Zuin concludes that it appears there has been a significant shift in attitude by the respondent.
Medication
The respondent has voluntarily taken anti‑libidinal medication, Androcur, in a bid to lower testosterone levels to assist him to manage his deviant sexual fantasies by diminishing sexual arousal. Results obtained on 24 May and 21 July 2012 confirm that he continues on anti‑libidinal medication.
Following the introduction of Androcur, Mr Brown reported a decrease in sexual fantasies and no sexual excitement from fantasies he did have. There were no reports of adverse side effects. The blood tests have shown a decrease in his level of testosterone post‑medication.
Dr Febbo is of opinion that there should be an assessment of the need for continuation of the medication.
He said the literature suggests a period about two to three years that one should seriously consider ceasing this particular medication. While there needs to be a balance, in his opinion a review should be carried out in a couple of years.
Management in the community
Mr Summerton, who has had the most engagement with the respondent, is of the opinion that he could be managed in the community at this time:
[O]bviously it's a matter of degree. There are ongoing concerns but they could continue to be addressed in the community.
He described his relationship with the respondent as a positive therapeutic relationship which he would continue as the treating psychologist in the community. Mr Summerton pointed out that there are benefits for treating within the community as opposed to prison. Certain issues cannot be particularly addressed in prison because the person is not exposed to certain circumstances, such as being in a relationship, dealing with regular domestic issues, or self‑management in the community.
Dr Febbo's opinion (exhibit 9, page 8) is that there has been a significant improvement in the respondent's understanding of his general functioning and offending and it is likely that there has been progress with treatment. He analysed the improvement alongside the Risk of Sexual Violence Protocol (RSVP) before concluding:
In my opinion, considering all the information I have, there has been a reduction in Mr Brown's risk of committing a serious sexual offence. Although Mr Brown remains at high risk of committing a serious sexual offence if not subject to a continued detention or supervision order, it is my view that his level of risk is such that he could be managed in the community under strict restrictions.
A reduction in the respondent's level of risk is made on the assumption by Dr Febbo that the psychotherapeutic input from Mr Summerton continues in the community at frequent intervals; the respondent complies with anti‑libidinal medication; and there is regular monitoring.
In evidence, Dr Febbo confirmed his opinion that the risk can be managed under a strict supervision order.
Dr Febbo thought that the term of supervision should be between eight and 10 years. He acknowledged there may come a time when the length would be counterproductive. There are also a number of points in the supervision order that might be very much appropriate for the first six to 12 months or two years, but there will be other factors which are inappropriate if they go on further than five years.
Dr Febbo discussed how the respondent would manage if not released. He expressed a feeling of hopelessness and believed his efforts are likely to be a waste of time.
In evidence Dr Febbo amplified this aspect of his report. There would be a degree of risk in relation to the work done so far. Non‑release could be associated with an elevation in his risk and significant negative outcomes.
The paramount consideration is the protection of the community. If the community is adequately protected by the respondent's release under strict supervision, then this option should be chosen.
The respondent has been detained beyond his term of imprisonment for control, care and treatment. He has made significant treatment gains as detailed by Mr Summerton and confirmed by Dr Febbo. He is stabilised on anti‑libidinal medication.
From a therapeutic point of view, psychotherapeutic or cognitive behavioural therapy is more likely to have ongoing success in reduction of risk within a community setting.
I am satisfied that the community can be adequately protected by the respondent's release on a supervision order. As the respondent is likely to be released one day in any event, continued detention at this stage may be counterproductive.
A review is sensible
Dr Febbo's suggestion for a review in two years is very sensible. The Dangerous Sexual Offenders Act 2006 (WA) does not provide for review of supervision orders. It is for the parties to apply to amend the conditions of a supervision order. It would be in the interests of the State and the respondent to cooperate to obtain a psychiatric report two years from this order so that the respondent's terms of supervision can be reassessed. I am sure the State will be prepared to facilitate a review in due course.
The structure and terms of a supervision order
Structure
At the hearing, some time was taken on the issue whether certain conditions should expire after a period, leaving the onus on the DPP to make application, or whether the onus should be on the respondent to make application to amend the supervision order.
I consider it is for the respondent to demonstrate the need for an amendment of conditions. This will only come about when he has otherwise demonstrated that his risk to the community under strict supervision is such that a change to those supervision requirements might be contemplated. Moreover, in respect of Androcur, he will become aware when the risk to his body requires a reassessment of the anti‑libidinal medication.
The respondent is at risk of relapsing into sexual offending behaviour. I have concluded that the risk to the community can be adequately managed by a strict supervision order. However, if the terms of that order are to be relaxed in the future, the respondent must demonstrate that his continuing progress towards rehabilitation justifies relaxation of the terms.
Placing the onus on the DPP to justify continuation of some of the terms of the order misunderstands the nature of the order and the paramount need to protect the community.
The term should be a lengthy term but not so long as to crush all hope by being so burdensome that the respondent loses motivation to comply.
The order will run for eight years.
Terms
The DPP put forward a draft order if I concluded a supervision order was appropriate. There are a number of pillars in the order.
Curfew
There will be a curfew for six months and thereafter if directed by a community corrections officer.
Alcohol and drugs
The respondent offended while intoxicated. Intoxicants will be forbidden and the respondent monitored for compliance.
Continuing treatment
The respondent has a long way to go with treatment. This must continue.
Anti‑libidinal medication
This medication is having a positive effect. It should continue. If it becomes medically problematic, a variation of the order can be considered.
Other terms
At the hearing, there was discussion about various terms of the proposal, following which I made rulings in respect of them. I do not need to set out those rulings in these reasons. They are recorded in transcript. The settled order is attached to these reasons.
Application under the Dangerous Sexual Offenders Act s 18(3)
The Community Protection (Offender Reporting) Act 2004 (WA) by its long title is an Act
to require certain offenders who commit sexual or certain other serious offences to keep police informed of their whereabouts and other personal details for a period of time to reduce the likelihood that they will re‑offend and to facilitate the investigation and prosecution of any future offences that they may commit, to enable information to be published about certain offenders, to enable courts to make orders prohibiting certain offenders from engaging in specified conduct, and for related purposes.
By amendments made in 2012, Parliament enacted Pt 5A - Publication of information about offenders. The Commissioner of Police may publish personal details of certain reportable offenders including, among other things, their name, photograph and locality.
The power extends to a dangerous sexual offender subject to a supervision order unless the supervision order provides that the photograph and locality are not to be published.
The Dangerous Sexual Offenders Act allows the court to make such a non‑publication order: DSO Act s 18(3). Ms Barone sought such an order.
The making of the order is discretionary. I decline to do so for three reasons.
No evidence to justify the order
Except in a clear case, there must be some evidence to justify an order. Such evidence might relate to the possible adverse effect on an offender's rehabilitation or a possible increase in their risk profile if there was publication. These are possible examples.
The harmful effect of publicity is not a matter about which judicial notice can be taken.
There is no evidence as to harm one way or the other so the power to exercise discretion has not been engaged.
The environmental scan
Mr Morton's report under the heading Proposed Community Supervision Plan indicates the proposed residential address for the first six months and says:
The SOMS analysis highlights that Mr Brown presents as a risk to any pre‑primary and primary‑aged female children who would reside nearby. There are a number of schools, buses, shopping precincts, sporting complexes and public spaces in the area.
An environmental scan by Corrective Services showed children milling about near a high school and I infer a bus stop.
Mr Morton suggests the respondent has many opportunities to offend if he should choose to do so. The presence of vulnerable people in the locality is a reason to decline to make an order.
Open justice and community protection
I outlined these principles in Director of Public Prosecutions (WA) v Hart [No 3] [2010] WASC 253 [17] ‑ [22].
In most cases, judges declare rights and resolve disputes arising from events that have occurred.
In applications under the Dangerous Sexual Offenders Act, a judge must look to the future and make a prediction of risk.
Despite the high standard to which a judge must be satisfied, there is obviously less certainty in making a prediction than deciding on past events.
The risk is borne by members of the community who are vulnerable if the judicial prediction is misplaced. In these circumstances, a court may well be slow to prevent publication which can enable members of the community to be informed and take protective action if the need arises.
For these reasons, I decline to incorporate an order for non‑publication in the supervision order.
IN THE SUPREME COURT OF WESTERN AUSTRALIA
No MCS 13 of 2010
IN THE MATTER of Part 3 of the Dangerous Sexual Offenders Act 2006
DIRECTOR OF PUBLIC PROSECUTIONS
FOR WESTERN AUSTRALIA Applicant
-and-
ALWYN WAYNE BROWN Respondent
__________________________________________________________________________
SUPERVISION ORDER MADE BY
THE HON JUSTICE McKECHNIE ON 1 AUGUST 2012
__________________________________________________________________________
The Court having found pursuant to section 33 and section 7 of the Dangerous Sexual Offenders Act 2006 that the Respondent remains a serious danger to the community, the Court rescinds the continuing detention order made on 23 December 2010 and orders that the Respondent be the subject of a supervision order pursuant to section 33(2)(b) of the Dangerous Sexual Offenders Act 2006, for a period of 8 years from the date of this order, on the following conditions:
THE RESPONDENT must:
Residence
Take up residence at [SUPPRESSED], Melville and spend each night at that address or at a different address only if such different address is approved in advance by the Community Corrections Officer (CCO) assigned to him (which designated CCO may be changed by the Department of Corrective Services at any time);
Not leave or remain out of the State of Western Australia without the permission of a Manager of the Department of Corrective Services and, if so permitted, abide by all conditions of such permission whilst absent from the state;
Reporting to the CCO and supervision by the CCO
Report to a CCO at South West Coastal Community Corrections Centre, Level 1, 8 Holdsworth Street, Fremantle, within 24 hours of release from custody under this order, and thereupon advise the CCO of his current name and address;
Be under the supervision of the CCO, and comply with the requirements of section 76 of the Sentence Administration Act 2003 as if he were an offender subject to that section;
Report to, and receive visits from, the CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of the Respondent;
Not change his name, address or employment without prior approval from the CCO;
Attendance at programs or treatment
Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;
Comply with the requirements of all programs, including one‑on‑one counselling, intended to address his offending behaviour, as directed by the CCO;
Continue to undergo pharmaceutical anti-libidinal treatment;
Comply fully with that treatment, in consultation with a medical practitioner;
Comply with all testing to monitor his compliance with that treatment as directed by a CCO or medical practitioner;
Permit any medical practitioner, psychologist, psychiatrist, endocrinologist or counsellor to disclose details of medical treatment and opinions relating to his level of risk of re-offending and compliance with treatment to the Department of Corrective Services;
Provide a written direction to any medical practitioner to advise the CCO immediately if they become aware or suspect that the Respondent has or intends to stop taking any prescribed anti-libidinal medication, or has apparently ceased to consult with that medical practitioner;
Reporting to WA Police
Report to the Officer‑in‑Charge of the Sex Offender Management Squad Headquarters at 250 Adelaide Terrace, Perth within 48 hours of release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer‑in‑Charge of the Sex Offender Management Squad or his/her delegate;
Comply with all obligations imposed on him pursuant to the Community Protection (Offender Reporting) Act 2004;
If requested, permit Police Officers to enter and search his residence for the purpose of monitoring his compliance with his obligations under this order;
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including his offence history;
Curfew and monitoring
For the first six months of this order, be subject to a daily curfew for a period of between 10 and 12 hours per day as directed by a CCO;
For the remaining period of this order, be subject to a curfew as directed by a CCO from time to time, but which curfew will be in place for a period or periods totalling not more than 6 months within any 12 month period and for no more than 12 hours in any 24‑hour period.
When subject to a curfew under this order, only leave the curfew address during the hours of curfew:
i. to obtain urgent medical or dental treatment for himself;
ii.for the purpose of averting or minimising a serious risk of death or injury to himself or another person;
iii.to obey an order issued under a written law (such as a summons) requiring his presence elsewhere;
iv.for a purpose, and for a duration, approved of in advance by a CCO; or
v.on the order of a CCO;
When subject to a curfew under this order, present himself for inspection at the front door or curtilage of his approved address to any CCO or police officer or their agent monitoring his compliance with the curfew; and if contacted by telephone, speak on the telephone, to any CCO or police officer or their agent monitoring his compliance with the curfew;
When subject to a curfew under this order, ensure that all those people present in the residence who may answer the telephone or door are aware as to his obligations and he must request their assistance to comply with his obligations by alerting him to such attempts to contact him by persons monitoring his compliance with the curfew;
When subject to a curfew under this order, to submit, if requested by the CCO, to electronic monitoring of his compliance with that curfew as directed;
Maintain a daily diary of his movements, activities and associations as directed by the CCO and present this diary to the CCO upon request;
Restrictions on contact with Victims
Have no contact, directly or indirectly, with any of the victims of his sexual offending unless such contact is either conducted strictly in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Corrective Services, or conducted in a manner approved in advance by the CCO, such latter approval being not to be given except with the express consent of the prohibited person.
Unless contact is permitted pursuant to the previous condition, immediately physically withdraw from any situation or immediate location in which contact is made with a prohibited person (including being in the immediate presence of such a person, whether inadvertently or otherwise), without engaging with such victim in conversation or at all, whether by word or gesture, and must avert his gaze from such victim at all times;
Criminal conduct
Not commit any sexual offence, as defined in the Evidence Act 1906 section 36A;
Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;
Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA);
Not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis;
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
Not commit any offence under the Community Protection (Offender Reporting) Act 2004;
Prevention of high-risk situations
Not associate with any person known by him to have committed a sexual offence, unless such association is authorised in advance by the CCO;
Not remain in any place where prohibited drugs are being consumed and withdraw from the place if any such consumption is occurring;
Not possess, consume or use alcohol;
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
Make full disclosure regarding his past offending and the current order to anyone with whom he commences a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by the CCO and police officer;
Have no contact with any child under the age of 16 years, whether such contact is in person, in writing, by telephone or by electronic means, unless
a.the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO; or
b.the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present;
(‘Contact’ under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication);
Where any unsupervised contact with a child under the age of 16 years is initiated by the child, unless the contact is permitted under the condition immediately above, withdraw immediately from the presence of the child;
Provide details of any contact with a child under the age of 16 years both to the CCO and to the Police on the next occasion he reports to that person or agency;
Report immediately to his CCO the formation of any domestic, romantic, sexual or otherwise intimate relationship by him with a person who has children under the age of 16 years in their care either full time or part time;
Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by the CCO or police officer;
Not possess any pornographic material in any format, and not search for pornographic images during access to any computer or other device capable of internet access;
When requested by the CCO or a police officer, provide full details of all his internet service providers, all mobile or landline telephone services and all internet user names or identities used by him and cease the use of such names, identities and services if directed to do so by a CCO or Police officer.
THE HON JUSTICE McKECHNIE
I have received a copy of this order. I have had explained to me and understand the effect of this Order and what may happen if I breach it.
Signed by the Respondent _____________________________
ALWYN WAYNE BROWN
In the presence of: _____________________________
Name and address: _____________________________
_____________________________
Date: _____________________________
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