Director of Public Prosecutions for Western Australia v Italiano [No 2] - [2010] WASC 150

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- ITALIANO [No 2] [2010] WASC 150

CORAM: BLAXELL J

HEARD: 8 & 10 JUNE 2010

DELIVERED : 10 JUNE 2010

FILE NO/S: MCS 26 of 2008

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
FRANCESCO ITALIANO
Respondent

Catchwords:

Dangerous sexual offender subject to continuing detention order - First annual review - Turns on own facts

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA)
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17, s 33, s 33(2), pt 3

Result:

Continuing detention order rescinded, and 7 year supervision order made

Category: B

Representation:

Counsel:

Applicant: Ms L Petrusa
Respondent: Mr M R Jones

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Legal Aid (WA)

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

Nil

BLAXELL J: This is an application by the Director of Public Prosecutions (DPP) for a review of the respondent Mr Italiano's detention pursuant to the Dangerous Sexual Offenders Act 2006 (WA) (the Act). On 18 December 2008 I made a continuing detention order pursuant to s 17 of the Act following my finding that Mr Italiano was a serious danger to the community within the meaning of s 7.
That order having been made, pt 3 of the Act requires that there be an annual review of Mr Italiano's detention and the first such review must be carried out as soon as practicable after the expiration of one year from the making of the continuing detention order.
In the present instance the application for that review was lodged on 9 September 2009 but was then adjourned by consent to enable Mr Italiano to participate in a sexual offenders treatment program within the prison system. For that reason the present review can be regarded as having taken place as soon as practicable.
Section 33 of the Act provides for the possible outcomes of the review and I must rescind the continuing detention order if I do not find that Mr Italiano remains a serious danger to the community. However, if I do so find, I have a discretion to exercise one of two options.
The first is to expressly decline to rescind the continuing detention order. The second option is to rescind that order and to substitute a supervision order providing for his release subject to appropriate conditions.
For the purposes of conducting the review I have been provided by consent with a book of reports and other materials. I have also heard evidence from the court appointed psychiatrist, Dr Peter Wynn Owen, the forensic psychologist, Dr Tamarla Capel, the senior community corrections officer, Daniella Piotto, and a number of other witnesses called by the respondent.
What that evidence shows is that between 31 August 2008 and 15 April 2009 Mr Italiano participated in the Intensive Sex Offender Treatment Program at Bunbury Prison. The reports I have received show that he met most program objectives and also made some treatment gains. In this regard he gained greater understanding of the factors underlying his offending and demonstrated greater acceptance of responsibility for his behaviour. The program also provided him with the opportunity to develop a self-management plan for the purposes of avoiding further offending and adopting a balanced lifestyle.
At the end of the program Mr Italiano's self-management plan was assessed as being generally appropriate although there was a need for it to be strengthened by additional support in the areas of social and leisure activities, attitudes and beliefs, coping and relationships. In other words the prospective success of the plan was in part dependent upon him leading a structured lifestyle in the community.
Dr Wynn Owen had previously assessed Mr Italiano for the purposes of the original application for a continuing detention order. During the assessment for the purposes of the review Mr Italiano demonstrated more openness than before and he was prepared to take responsibility for all of his prior offending.
Mr Italiano also commented on the adverse emotional impact of his offending on the victims and talked at length about his past failure to take responsibility for his actions. It is significant that during the interviews with Dr Wynn Owen, Mr Italiano acknowledged that he had had sexual thoughts about his child victims at the time of his offending. He also made statements indicating that he currently has a libido but made no admission of any current deviant thoughts.
According to Dr Wynn Owen these disclosures will enable better monitoring of Mr Italiano and help in the management of his risk. Although Mr Italiano was unable to clearly articulate his relapse prevention plan he was able to provide Dr Wynn Owen with a general outline. He stated that if he had any thoughts or deviant feelings about children he would 'call someone to get help'. If he unintentionally came into contact with children he would 'just leave', and if asked to stay would say 'no'.
It was Dr Wynn Owen's assessment that Mr Italiano has a restricted social network, limited support from his family and fairly vague plans in respect of accommodation and employment following any release. Accordingly there is the potential for social isolation and there would be a significant need for ongoing support and surveillance to mitigate the possibility of him reoffending.
Whether Mr Italiano remains in detention or is released into the community he will need continued one-on-one counselling to address his deficits of understanding of intimacy needs, normal social behaviour and social reintegration. If released into the community he will also need to participate in a community based sex offender maintenance program. In Dr Wynn Owen's opinion, there is greater potential for Mr Italiano to make continued treatment gains if he is released into the community than if he remains in prison.
Dr Capel will be responsible for Mr Italiano's one-on-one counselling regardless of whether he remains in prison or is released into the community. If he remains in prison this counselling will continue on a fortnightly basis, as at present. If released into the community the one‑on‑one counselling will occur on a weekly basis and there will also be regular monitoring by a community corrections team under Ms Piotto. The community based sex offender maintenance program would involve group participation once per fortnight.
In the event that Mr Italiano is released, appropriate accommodation for a period of 6 ‑ 12 months has been arranged by the Outreach organisation. Outreach provides transitional accommodation and support for long-term offenders following their release from prison. This assistance includes practical, social and emotional support with regular contacts totalling approximately 8 ‑ 10 hours per week tailing off to perhaps 6 hours per week after a few months.
Mr Italiano would also receive additional support from a number of witnesses who have testified before me. These include three members of the Prison Fellowship who have already established relationships with Mr Italiano as a result of regular visits to him in prison. Another member of the Prison Fellowship organisation conducts a bed and breakfast on a seven‑acre property in the Hills and has offered him part‑time employment doing maintenance work.
I have also heard evidence from two members of Mr Italiano's immediate family who have undertaken to provide him with ongoing support. All of these witnesses are aware of Mr Italiano's past wrongdoing and have undertaken to report any future behaviour on his part that might give cause for concern.
If released into the community Mr Italiano will also be required to report to the officer in charge of the police sex offender management squad and to comply with all obligations imposed by the Community Protection (Offender Reporting) Act 2004 (WA). These requirements include the obligation to permit police officers to enter and search his residence at any time.
In my view a significant factor influencing the outcome of the present review is the modus operandi of Mr Italiano's past offences. In each instance the victim was a child who was well-known to Mr Italiano. None of Mr Italiano's offences were committed on strangers and in each case he had first befriended the victims' parents over a considerable period.
It is reasonable to assume that the risk of future reoffending would be with similar such victims. It follows that the key to managing that risk in the community would be to ensure that Mr Italiano does not develop any relationships with adults who have young children. In that regard the evidence I have heard strongly suggests that the fact of any such relationship would come to the notice of those who would be supervising him well before there was any opportunity to reoffend.
For these reasons I make the finding under s 33 of the Dangerous Sexual Offenders Act that Mr Italiano remains a serious danger to the community. In the exercise of my discretion under s 33(2), I hereby rescind the continuing detention order made on 18 December 2008 and make an order that at all times for the period of seven years commencing today, when Mr Italiano is not in custody, he is to be subject to the conditions in the minute that I have now signed and approved.