Director of Public Prosecutions for Western Australia v Brown [No 8]

[2015] WASC 390

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BROWN [No 8] [2015] WASC 390

CORAM:   MARTINO J

HEARD:   13 OCTOBER 2015

DELIVERED          :   15 OCTOBER 2015

FILE NO/S:   MCS 13 of 2010

MATTER                :Dangerous Sexual Offenders Act 2006 (WA)

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Applicant

AND

ALWYN WAYNE BROWN
Respondent

Catchwords:

Dangerous sexual offender - Supervision order

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Supervision order for 5 years

Category:    B

Representation:

Counsel:

Applicant:     Ms S Markham

Respondent:     Ms M R Barone

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Barone Criminal Lawyers Pty Ltd

Cases referred to in judgment:

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

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

Director of Public Prosecutions for Western Australia v Brown [No 7] [2014] WASC 398

1. MARTINO J: The respondent is in custody pursuant to an order for continuing detention made on 26 April 2013 under s 23(1)(b) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act).  By an application made on 5 May 2015 the applicant applied pursuant to s 29 of the DSO Act for review of the respondent's detention.

2. Section 33 of the DSO Act provides that on this application the court:

   1.must rescind the detention order if it does not find the respondent remains a serious danger to the community;[1] and

   2.if it finds that the respondent remains a serious danger to the community the court may either:

   a.expressly decline to rescind the order;[2] or

   b.rescind the order and make an order that at all times during the period stated in the order when the respondent is not in custody he be subject to conditions that the court considers appropriate and states in the order.[3]

   [1] Dangerous Sexual Offenders Act 2006 (WA) s 33(1).

   [2] Dangerous Sexual Offenders Act 2006 (WA) s 33(2)(a).

   [3] Dangerous Sexual Offenders Act 2006 (WA) s 33(2)(b).

3. In making a decision under s 33(2), the paramount consideration is to be the need to ensure adequate protection of the community.[4]

   [4] Dangerous Sexual Offenders Act 2006 (WA) s 33(3).

4. Section 7(1) of the DSO Act provides that before making a finding that a person is a serious danger to the community the court has 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.  Serious sexual offence is defined in s 3 as having the same meaning as in s 106A of the Evidence Act 1906 (WA).  Section 7(2) of the DSO Act provides that the Director of Public Prosecutions has the onus of satisfying the court as described in s 7(1) and the court has to be satisfied:

   (a)by acceptable and cogent evidence; and

   (b)to a high degree of probability.

5. The background to this application is contained in reasons for decision that have been published when making orders under the DSO Act concerning the respondent.  An order for the continuing detention of the respondent was first made on 23 December 2010.  The offences that the respondent had committed before that continuing detention order was made are set out in EM Heenan J's reasons in Director of Public Prosecutions for Western Australia v Brown.[5]

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

6. On 1 August 2012 McKechnie J rescinded the detention order made on 23 December 2010 and made an order for the supervision of the respondent.[6]

   [6] Director of Public Prosecutions for Western Australia v Brown [No 5] [2012] WASC 276.

7. On 26 April 2013 McKechnie J sentenced the respondent to 7 months' imprisonment for offences of contravening the supervision order he made on 1 August 2012, cancelled the supervision order by reason of the respondent's contraventions of it and made an order that the respondent be detained in custody for an indefinite term for control, care or treatment, pursuant to s 23(1)(b) of the DSO Act.[7]

   [7] Director of Public Prosecutions for Western Australia v Brown [No 6] [2013] WASC 148.

8. On 9 October 2014 Simmonds J made an order pursuant to section 33(2)(a) of the DSO Act expressly declining to rescind the order made on 26 April 2013.[8]

   [8] Director of Public Prosecutions for Western Australia v Brown [No 7] [2014] WASC 398.

9. On 6 October 2015 the applicant filed a book of materials for the hearing of its application of 5 May 2015.  That book included a Psychiatric Report by Dr S Febbo dated 13 September 2015, a Dangerous Sexual Offender Treatment Progress Report by V Rankin dated 18 September 2015 and a Community Supervision Assessment report by J Dabala dated 5 October 2015.

10. On 12 October 2015 the applicant sent by email to my Associate a summary of a Desktop Accommodation Analysis prepared by the Sex Offender Management Squad of the Western Australian Police in relation to the accommodation proposed for the respondent in the Community Supervision Assessment dated 5 October 2015.

11. At the hearing the applicant called as witnesses Dr Salvatore Febbo, consultant psychiatrist and the author of the psychiatric report dated 13 September 2015, Ms Vanessa Rankin, Senior Clinical Psychologist and the author of the Dangerous Sexual Offender Treatment Progress Report dated 18 September 2015 and Ms Julie Dabala, Senior Community Corrections Officer in the Department of Corrective Services' Public Protection Unit and the author of the Community Supervision Assessment dated 5 October 2015.  Each of Dr Febbo, Ms Rankin and Ms Dabala gave evidence in terms of their reports.  There were no inconsistencies between each report and the oral evidence given by the author of that report.

12. In his report dated 13 September 2015 Dr Febbo expressed the opinion that the respondent remains at high risk of further sexual offence if not the subject of a detention or supervision order.  On the hearing of the application before me the respondent by his counsel expressly conceded that the respondent remains a serious danger to the community. 

13. Since he returned to custody in early March 2013 the respondent has been receiving weekly psychotherapy input from Mr David Summerton, clinical psychologist.  Dr Febbo is particularly impressed with the additional progress that the respondent has made with Mr Summerton.  Dr Febbo gave evidence that the respondent has worked with Mr Summerton to increase the respondent's understanding of the complex issues that are related to his sexual offending and that the respondent's increased understanding includes areas such as the development of inappropriate deviant fantasies, maladaptive responses to external triggers and his responses of negative emotional states. 

14. Ms Rankin expressed the opinion that the respondent has become more comfortable with his therapeutic relationship with Mr Summerton and is addressing issues in a more meaningful way.  While he has made limited gains he presents as more at ease than he was at the time of the last annual review and demonstrated increased insight into the way he approaches interpersonal interactions.  The respondent appears to have improved insight into previously problematic relationships and patterns of responding to others.  He presents as having a reasonable understanding of the factors underlying his sexual offending behaviour.

15. In my view the respondent's concession that he remains a serious danger to the community was justified.

16. I am satisfied to a high degree of probability by the evidence of Dr Febbo and Ms Rankin that there is an unacceptable risk that, if the respondent were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.  While the progress made by the respondent has increased his awareness of the complex issues that are related to his sexual offending and his inappropriate fantasies and inappropriate responses to external triggers those complex issues and the associated risks remain and require appropriate management and support to reduce the risk of him reoffending.  I conclude that there is an unacceptable risk that if the respondent were not subject to a continuing detention order or a supervision order the respondent would commit a serious sexual offence within the meaning of that term in the DSO Act.

17. I am therefore required to consider whether to expressly decline to rescind the existing detention order or to rescind the order and make a supervision order. The applicant accepts that risk of the respondent committing a serious sexual offence is manageable in the community under a supervision order.

18. As I have said earlier in these reasons the respondent has previously been the subject of a supervision order which was cancelled by reason of his non-compliance with it.  Whether the respondent should be the subject of another period of supervision in the community was the subject of careful consideration and examination in the reports and evidence before me.

19. The evidence of both Dr Febbo and Ms Rankin was that the respondent has made gains since he was placed on the previous supervision order and since he breached that order.  He has greater insight into his personal risk factors and the benefits to him and to the community of appropriate supervision.  Dr Febbo acknowledged that care is required in considering the information provided by the respondent.  Having allowed for that caution he remains of the opinion that the risk of the respondent committing an offence is manageable in the community under a supervision order.

20. It is also significant that Dr Febbo considers that further time in custody is unlikely to achieve further progress.  To the contrary, in Dr Febbo's opinion there is a risk that if he remains in custody there is a risk that there might be a set-back in the progress that has been achieved.

21. The respondent recommenced anti-libidinal medication in August 2015. On 9 September 2015 he informed Ms Dabala that he was fully aware of the risks to his health. He is willing to continue taking the medication. Dr Febbo recommends that the need for the medication should be reviewed regularly and certainly no longer than yearly intervals.

22. Should the respondent be released under a supervision order he will be closely managed by members of the local risk management group that includes police officers from the Sex Offender Management Squad, Community Corrections Officers from the Department of Corrective Services Public Protection Unit and Dangerous Sex Offender psychologists.

23. If the respondent is released under a supervision order then he will be able to live in accommodation that has been allocated to him under the DSO Supported Accommodation Programme. The proposed accommodation has been used by another Dangerous Sex Offender under supervision and is well known to the Sex Offender Management Squad of the Western Australian Police and to the Department of Corrective Services Public Protection Unit staff.  Ms Dabala's evidence was that if the respondent were to be released on a supervision order he can be subject to Global Positioning System tracking.  This will allow the Department of Corrective Services to monitor the respondent's compliance with any curfew requirements, ensure that the respondent does not go to exclusion zones associated with a risk of offending which he is directed not to go to and provide improved information to guide his case management.

24. I am satisfied by the evidence of Dr Febbo, Ms Rankin and Ms Dabala that while subject to appropriate conditions which will be specified in the order the community can be adequately protected if the respondent is released on a supervision order.

25. The previous supervision order was for a period of eight years.  In Dr Febbo's opinion that eight years is now too long a period, particularly as the respondent's family is in another State.  While he is subject to a supervision order he is unable to travel outside of the State without permission.  The term of the respondent's supervision order should be sufficiently lengthy to enable the community to be confident that the risk of the respondent re-offending has been appropriately addressed.  However, it should not be so long as to discourage the respondent.  I am satisfied that the supervision order should be for a period of five years, as proposed by Dr Febbo.

26. As I have noted the respondent is taking anti-libidinal medication and is willing to continue doing so. In Dr Febbo's opinion the need for this medication should be reviewed regularly and certainly not longer than yearly intervals. There are two reasons for this. One reason is the possible side effects of the medication. The other reason is that it is desirable for a psychiatrist to review whether there is a continued need for the respondent to continue to take the medication or whether his progress no longer requires it. The orders that I will make will provide for appropriate reviews of the respondent by a medical practitioner, psychologist, psychiatrist or counsellor as directed by the respondent's supervising Community Corrections Officer. It is highly desirable that when considering whether to direct those reviews the Community Correction Officer bear in mind the opinion of Dr Febbo to which I have referred.

27. I rescind the detention order made on 26 April 2013 and order that at all times during the period of five years from today when the respondent is not in custody he be subject to conditions that I will specify in the order.