Director of Public Prosecutions for Western Australia v Brown [No 7]
[2014] WASC 398
•29 OCTOBER 2014
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BROWN [No 7] [2014] WASC 398
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 398 | |
| 29/10/2014 | |||
| Case No: | MCS:13/2010 | 8 OCTOBER 2014 & ON THE PAPERS | |
| Coram: | SIMMONDS J | 9/10/14 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Decline to rescind continuing detention order | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA ALWYN WAYNE BROWN |
Catchwords: | Criminal law Dangerous sexual offender First annual review of custody under Dangerous Sexual Offenders Act 2006 (WA) division 4 continuing detention order Review on the papers |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA) s 3, s 7, s 17, s 23, s 27, s 29, s 30, s 31, s 33, s 40A Evidence Act 1906 (WA) s 106A |
Case References: | Director of Public Prosecutions (WA) v Comeagain [No 5] [2014] WASC 214 Director of Public Prosecutions (WA) v Yates [2014] WASC 136 Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405 Director of Public Prosecutions for Western Australia v Brown [No 4] [2011] WASC 202 Director of Public Prosecutions for Western Australia v Brown [No 5] [2012] WASC 276 Director of Public Prosecutions for Western Australia v Brown [No 6] [2013] WASC 148 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
ALWYN WAYNE BROWN
Respondent
Catchwords:
Criminal law - Dangerous sexual offender - First annual review of custody under Dangerous Sexual Offenders Act 2006 (WA) division 4 continuing detention order - Review on the papers
Legislation:
Dangerous Sexual Offenders Act 2006 (WA) s 3, s 7, s 17, s 23, s 27, s 29, s 30, s 31, s 33, s 40A
Evidence Act 1906 (WA) s 106A
Result:
Decline to rescind continuing detention order
Category: B
Representation:
Counsel:
Applicant : Ms K Robinson
Respondent : Ms M R Barone
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Barone Criminal Lawyers Pty Ltd
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Comeagain [No 5] [2014] WASC 214
Director of Public Prosecutions (WA) v Yates [2014] WASC 136
Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405
Director of Public Prosecutions for Western Australia v Brown [No 4] [2011] WASC 202
Director of Public Prosecutions for Western Australia v Brown [No 5] [2012] WASC 276
Director of Public Prosecutions for Western Australia v Brown [No 6] [2013] WASC 148
- SIMMONDS J:
(This judgment was delivered orally and has been edited from the transcript.)
Introduction
1 This is an application for an annual review (the present review) of detention under a continuing detention order made under Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) s 23(1)(b) (the 2013 continuing detention order).
2 The 2013 continuing detention order was made by McKechnie J on 26 April 2013 entailing the cancellation of a supervision order made by him on 1 August 2012 under DSO Act s 33(2)(b) (see s 3(1) 'supervision order') (the 2012 supervision order). The 2013 continuing detention order was made following McKechnie J finding a number of contraventions of the 2012 supervision order. Mr Brown had previously been released into the community on the 2012 supervision order. At the time of the making of the 2013 continuing detention order Mr Brown had also been sentenced to 7 months' immediate imprisonment for a number of offences under s 40A. Those were offences of, without reasonable excuse, contravening a requirement of the 2012 supervision order. That sentence had been backdated to 5 March 2013: see Director of Public Prosecutions for Western Australia v Brown [No 6] [2013] WASC 148 and DSO Acts 23.
3 The DSO Act s 29(1) requires the Director of Public Prosecutions (DPP) to apply to the court for review of a person's detention under a continuing detention order as specified in s 29(2). The provisions of s 29(2) distinguish between the first annual review (s 29(2)(a)) and a subsequent annual review (s 29(2)(b)). Mr Brown had previously been detained under a continuing detention order made on 23 December 2010 by EM Heenan J under s 17(1)(a) (the 2010 detention order): see Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405. Such a detention order is called a division 2 continuing detention order: see s 3(1) 'Division 2 continuing detention order'. Mr Brown had been released from detention under the 2010 detention order following the making of the 2012 supervision order. The 2013 continuing detention order that was made on the cancellation of the 2012 supervision order was a division 4 continuing detention order: see s 3(1) 'Division 4 continuing detention order'.
4 In my view of DSO Act s 29(2) the present review is under s 29(2)(a) and is of detention under the 2013 continuing detention order. However, I must note that the application by the DPP is expressed in terms of an application for an order for review of Mr Brown's detention under the 2010 continuing detention order. I consider that cannot be the correct understanding of the present review, as Mr Brown's detention is not under that order, but rather under the 2013 continuing detention order. However, I also consider that the form of the application by the DPP does not prevent the present review being understood as I have indicated it should be understood. When I ventilated that understanding at the hearing on 8 October 2014, neither counsel contended the present review should not be so understood.
5 On the present review Mr Brown does not oppose the court finding, what the DPP contends it should find, that he remains a serious danger to the community within DSO Act s 33(2). Such a finding is the predicate to the choice that then must be made, between the court making an order expressly declining to rescind the 2013 continuing detention order (see s 33(2)(a)); and the court rescinding the 2013 continuing detention order and making a supervision order (see s 33(2)(b)).
6 In addition, Mr Brown does not oppose the court making the choice first mentioned, that is, making an order expressly declining to rescind the 2013 continuing detention order. The DPP contends the court should make such an order.
7 The parties appeared before me by their counsel at a hearing on 8 October 2014. At that hearing both counsel confirmed what I have described in the previous two paragraphs. They consented to the reception into evidence of two documentary exhibits I will describe below. They indicated they wished the decision in the present review to be on the papers. This is that decision.
8 My decision is that I should make the finding that Mr Brown remains a serious danger to the community; and I should make an order expressly declining to rescind the 2013 continuing detention order. That decision is for the following reasons.
Background
9 In DPP v Brown [No 6] McKechnie J concluded that there was an unacceptable risk that, if a (division 4) continuing detention order were not made, Mr Brown would commit a serious sexual offence: see DSO Act s 23(1)(b) and DPP v Brown [No 6] [88] - [107].
10 McKechnie J concluded the standard of satisfaction for that purpose was that of the balance of probabilities, noting the contrast with the standard of a high degree of probability: see DPP v Brown [No 6] [84] - [86]. The standard of high degree of probability, expressed in the terms of DSO Acts 7(2) as the court being satisfied '(a) by acceptable and cogent evidence; and (b) to a high degree of probability', is stated by that provision to apply for the purposes of the court finding that a person 'is a serious danger to the community'. That finding requires the court to be 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': see s 7(1); and see Evidence Act 1906 (WA) s 106A for 'serious sexual offence'. The standard in s 7(2) in my view is the standard that applies for the purposes of a finding that a person remains a serious danger to the community under s 33(2).
11 However, McKechnie J in DPP v Brown [No 6] also stated that he was in fact 'persuaded to a high degree of probability that a detention order at this stage is the only way to ensure the adequate protection of the community': see [88].
12 For the purposes of the decision I must make under DSO Act s 33, there are two matters to which I must attend and to which I have previously referred.
13 One matter is whether I am satisfied, in accordance with the standard in DSO Act s 7(2), that Mr Brown 'remains a serious danger to the community': see s 33(2). I recently set out the provisions of the DSO Act relevant in that regard and summarised the applicable principles in Director of Public Prosecutions (WA) v Comeagain [No 5] [2014] WASC 214 [26] - [27]. There is a question as to the breadth of the task entailed in the present matter to which I referred and which I discussed in that decision: see [34] - [42]. However, on the positions of the parties in this respect in the present proceedings I do not consider I have an occasion to address that question further. Those positions in that respect, as I have indicated, are that I may find that Mr Brown remains a serious danger to the community, and do so on the papers. I took the papers to be the two documentary exhibits.
14 I should add that, notwithstanding the positions of the parties in the present respect, I consider I must examine the evidence in the papers and make my finding accordingly: see DSO Act s 27.
15 The other matter to which I must attend is, if I am satisfied Mr Brown remains a serious danger to the community, whether I should make an order in terms of s 33(2)(a) or make orders under s 33(2)(b). I recently set out, also in DPP v Comeagain [No 5], those provisions and summarised the applicable principles: see [4], [28] - [30], [199] - [200].
16 In that respect, there is a question as to the extent to which the court should proceed on the assumption that the executive government will provide the resources for the management and treatment of offenders falling under the DSO Act: see DPP v Comeagain [No 5] [32], referring to Director of Public Prosecutions (WA) v Yates [2014] WASC 136 [7] (Martin CJ). Although the present review might be seen to raise a question of that kind, I took the positions of the parties in the present respect to entail that I did not need to enter into it. I agree. Those positions, as I have indicated, are that I may make an order expressly declining to rescind the 2013 continuing detention order on the papers.
17 I should add that, notwithstanding the positions of the parties in the present respect, I consider I must examine the evidence in the papers and make my finding accordingly: see again DSO Act s 27.
18 I turn now to the present review.
The present review
19 By consent, McKechnie J made orders under DSO Act s 31 for the hearing on 8 October 2014. Those orders included that there be arrangements for examination and report on Mr Brown by Dr Sam Febbo, a psychiatrist. Dr Febbo was to liaise with the Department of Corrective Services as to a management plan (if appropriate) for Mr Brown.
20 At the hearing on 8 October 2014, by consent, a document entitled 'Book of Materials for the Purpose of the 2014 Annual Review of Detention' was tendered into evidence. It became exhibit 1.
21 Also by consent an email of 6 October 2014, 11.16 am, from counsel for the DPP to counsel for Mr Brown was tendered into evidence. It became exhibit 2.
22 Exhibit 1 includes, as exhibit 1.12, a report by Dr Febbo dated 24 September 2014 entitled 'Psychiatric Review' (Dr Febbo's 2014 report). Dr Febbo is a consultant psychiatrist. For the purposes of Dr Febbo's 2014 report, he interviewed Mr Brown on one occasion and had telephone conversations with each of Ms Julie Dabala, Senior Community Corrections Officer; and with Mr David Summerton, Clinical Psychologist. I return to Ms Dabala and Mr Summerton below. Dr Febbo had provided reports on Mr Brown for, and testified as to Mr Brown at, previous hearings under the DSO Act: see DPP v Brown; Director of Public Prosecutions for Western Australia v Brown [No 4] [2011] WASC 202 (EM Heenan J); and Director of Public Prosecutions for Western Australia v Brown [No 5] [2012] WASC 276 (McKechnie J). On the basis of Dr Febbo's 2014 report's reference to that interview and those telephone conversations; his previous experience with Mr Brown; and the reliance on those other reports and that testimony in those other hearings, I consider I am in a position to rely on Dr Febbo's 2014 report.
23 Exhibit 1 also includes, as exhibit 1.13, a report by Ms Vanessa Rankin dated 23 September 2014 entitled 'Dangerous Sex Offender Treatment Progress Report' (Ms Rankin's report). Ms Rankin is a Senior Clinical Psychologist who has worked with the Department of Corrective Services since 2008 and is currently employed in the Forensic Psychological Service within the Department. In that latter role she prepares treatment reports on offenders subject to the DSO Act. For the purposes of Ms Rankin's report she interviewed Mr Brown on one occasion; consulted with Mr Summerton; and perused file information, counselling case notes, the Total Offender Management Solution (TOMS) database, prior professional assessments and court transcripts pertaining to DPP v Brown [No 5] and DPP v Brown [No 6]. Unlike Dr Febbo, Ms Rankin is not shown to have provided reports or testimony in relation to Mr Brown in DPP v Brown, DPP v Brown [No 4], DPP v Brown [No 5], or DPP v Brown [No 6]. On the basis of Ms Rankin's report's references to that interview, that consultation and those perusals, as well as her qualifications, experience and present role, I consider I am in a position to rely on Ms Rankin's report.
24 Exhibit 1 further includes, as exhibit 1.14, an assessment which I accept is authored by Ms Julie Dabala, and which is dated 1 October 2014 and entitled 'Community Supervision Assessment' (Ms Dabala's report). Ms Dabala's report includes a Proposed Community Supervision Plan. Ms Dabala is, as I have indicated, a Senior Community Corrections Officer. She works for the Public Protection Unit of the Department of Corrective Services. For the purposes of Ms Dabala's report she interviewed Mr Brown on two occasions; perused Department files and the TOMS database, among other sources; and consulted with Mr Summerton, Dr Febbo, Dr Cherelle Fitzclarence (Deputy Director, Health Services in the Department of Corrective Services), other Department of Corrective Services personnel and Uniting Care West (UCW) personnel, among others. Unlike Dr Febbo, Ms Dabala is not shown to have provided reports or testimony in relation to Mr Brown in DPP v Brown, DPP v Brown [No 4], DPP v Brown [No 5], or DPP v Brown [No 6]. On the basis of Ms Dabala's report's reference to those interviews, those perusals and those consultations, as well as her position in the Department of Corrective Services, I consider I am in a position to rely on Ms Dabala's report.
25 Exhibit 2 sets out responses from the Department of Corrective Services to certain questions arising out of Ms Dabala's report.
26 I turn now to my conclusions from exhibit 1 and exhibit 2.
Does Mr Brown remain a serious danger to the community within DSO Act s 7?
27 I so find in accordance with the standard in DSO Act s 7(2) for the following reasons.
28 Dr Febbo's opinion is that Mr Brown 'remains at high risk of committing a serious sexual offence if not subject to a continued detention or supervision order' (exhibit 1.12, page 23). I consider that opinion is strongly supported by the following, which are references to clear and cogent evidence:
(1) The reference in Dr Febbo's 2014 report to the nature (including the breaches involving contact with children), extent and frequency of the breaches of the 2012 supervision order: see exhibit 1.12, pages 17 - 18, 21 - 22; see also DPP v Brown [No 6] [91].
(2) The references in Dr Febbo's 2014 report to Mr Brown's account of a marked increase in sexual fantasies he had experienced involving both adults and children since returning to custody and going off anti-libidinal medication, where it appeared that his sexual interest was significantly decreased when he was in the community and on anti-libidinal medication: see exhibit 1.12, page 22; cf DPP v Brown [No 6] [89].
29 I find nothing inconsistent with Dr Febbo's opinion in Ms Rankin's report or in Ms Dabala's report, or indeed in any other of the materials in exhibit 1. In respect of (2) above, I particularly note in Ms Rankin's report exhibit 1.13, pages 31 and 34.
What choice should be made between DSO Act s 33(2)(a) and (b)?
30 I would make an order in the terms of DSO Act s 33(2)(a), for the combination of the following three sets of reasons.
31 One set of reasons relates to suitable accommodation for Mr Brown in the community.
32 Dr Febbo's 2014 report and Ms Dabala's report indicate there is a difficulty finding suitable accommodation for Mr Brown were he to be released into the community on a supervision order: see exhibit 1.12, page 23; and see exhibit 1.14, pages 36 - 37. Exhibit 2 indicates that the Department of Corrective Services is currently unable to provide a time frame within which accommodation might become available. Mr Brown's previous sexual offending, including his serious sexual offending, involved the targeting of children who appear to have been randomly selected. That in my view is strongly suggestive of a pattern of offending of that kind: see DPP v Brown [12] - [25] and [29]. In my view, that pattern makes choice of potential future accommodation a matter for very careful assessment and of very considerable significance.
33 Another set of reasons concerns anti-libidinal medication for Mr Brown.
34 Ms Dabala's report indicates that Mr Brown ceased his anti-libidinal treatment on his return to custody. It was planned he would recommence that treatment about one month prior to the present review. However, Department of Corrective Services policies in relation to anti-libidinal treatment changed subsequently. The Department no longer manages anti-libidinal treatment for those in custody. At the same time, the Department is willing to facilitate treatment by others for persons in custody, in the Bunbury Regional Prison. There is a general practitioner in Bunbury prepared to assess such persons for such treatment. However, Mr Brown had previously refused to transfer to Bunbury Regional Prison; and while attempts have been made to arrange a telephone consultation with the general practitioner in Bunbury, these attempts have not yet borne fruit: see exhibit 1.14, pages 32 - 33. The consequence is that Mr Brown has not yet recommenced anti-libidinal medication.
35 Dr Febbo's 2014 report indicates that it would be of value to recommence anti-libidinal medication prior to Mr Brown's release; and that anti-libidinal medication needed to be continued and monitored: see exhibit 1.12, page 23. I consider that recommencement to be of significance in view of what as I have indicated appears in Dr Febbo's 2014 report as to a significant decrease in Mr Brown's sexual interest while he was in the community and on anti-libidinal medication.
36 In that last respect, however, I must note what appears in Ms Rankin's report as to Mr Brown having claimed to Mr Summerton that anti-libidinal medication had had no effect on his sexual functioning: see exhibit 1.13, page 13. Mr Summerton had been Mr Brown's treating psychologist from the Department of Corrective Services in the period leading up to the review in DPP v Brown [No 5], and had counselled him in in the community while Mr Brown was on the 2012 supervision order. Mr Summerton has been his treating psychologist since Mr Brown's return to custody. See Ms Rankin's report exhibit 1.13, pages 6 - 8. This claim of Mr Brown's might seem implausible, in view of Dr Febbo's opinion. Further, I note the references to Mr Brown's tendencies to lie in DPP v Brown [No 6] [91] - [92]. I further note the statement in Dr Febbo's 2014 report (exhibit 1.12, page 21) that:
Mr Brown's history remains of questionable reliability and this also involves the history that he provides in relation to inappropriate sexual fantasies both currently and in the community. Mr Brown has given conflicting information in relation to this.
37 However, in my view I do not need to resolve this matter for present purposes, as I consider I have sufficient evidence of the significance for the management of Mr Brown's risk in the community of his re-commencement of anti-libidinal medication before his release.
38 The final matter is that of additional work by Mr Brown with Mr Summerton on relapse prevention and deviant sexual fantasies.
39 I note that Dr Febbo's 2014 report relied at least in part on the views of Mr Summerton that additional work with him by Mr Brown can usefully be carried out prior to Mr Brown's release, in areas including relapse prevention and deviant sexual fantasies: see exhibit 1.12, page 23 read with page 22. I have previously noted the relevance of sexual fantasies to Mr Brown's risk of serious sexual reoffending. In respect of relapse prevention I note the identification of risks of that kind as one of the 'areas of concern' for Mr Brown in Ms Rankin's report: see exhibit 1.13, page 28.
Conclusion
40 For the reasons I have set out in the previous two sections of this decision I have concluded that Mr Brown remains a serious danger to the community within DSO Act s 33(2); and that under s 33(2)(a) I should decline to rescind the 2013 continuing detention order.
41 I should add the following.
42 It is the court's expectation, based on what appears in exhibit 1 and exhibit 2, that the matters I have referred to of accommodation, anti-libidinal medication and additional work with Mr Brown's treating psychologist will continue to be addressed by the Department and all others concerned over the course of Mr Brown's custody from this point forward. The court notes that a continuing detention order is described in DSO Act s 23(1)(b) as one for 'control, care or treatment' of an offender. The court also notes that McKechnie J in DPP v Brown [No 6] [107] referred to the 2013 continuing detention order as one for 'control, care and treatment' of Mr Brown.
43 Further, the court notes that, at any time before the DPP must next apply under DSO Act s 29(2)(b) for an annual review of Mr Brown's detention under the 2013 continuing detention order, Mr Brown may, with the leave of the court, apply for his detention to be reviewed: see DSO Act s 30. However, before granting such leave, the court must be satisfied that there are 'exceptional circumstances' that relate to Mr Brown: s 30(2). I note that counsel for the DPP indicated at the hearing of 8 October 2014 that the DPP would not object to such leave being granted. However, I further note that the court must still be satisfied that there are those exceptional circumstances before it may grant leave. I still further note that the DPP before me expressly reserved its position on any review with such leave.
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