Director of Public Prosecutions for Western Australia v Mangolamara
[2006] WASC 172
•10 AUGUST 2006
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- MANGOLAMARA [2006] WASC 172
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 172 | |
| 15/08/2006 | |||
| Case No: | MCS:25/2006 | 7, 25 JULY & 10 AUGUST 2006 | |
| Coram: | BLAXELL J | 10/08/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Order that respondent undergo examination by two psychiatrists Order that the respondent be detained in custody pending final determination of application Respondent to have liberty to apply to vary the interim detention order | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA ROBERT ANTHONY MANGOLAMARA |
Catchwords: | Criminal law Miscellaneous matters Dangerous Sexual Offenders Act 2006 Application for continuing detention or supervision order Preliminary hearing Expiration of sentence during course of preliminary hearing Whether respondent should be detained in custody until final determination of application |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA) |
Case References: | Director of Public Prosecutions v Allen [2006] WASC 160 Director of Public Prosecutions v Williams [2006] WASC 140 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
ROBERT ANTHONY MANGOLAMARA
Respondent
Catchwords:
Criminal law - Miscellaneous matters - Dangerous Sexual Offenders Act 2006 - Application for continuing detention or supervision order - Preliminary hearing - Expiration of sentence during course of preliminary hearing - Whether respondent should be detained in custody until final determination of application
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
(Page 2)
Result:
Order that respondent undergo examination by two psychiatrists
Order that the respondent be detained in custody pending final determination of application
Respondent to have liberty to apply to vary the interim detention order
Category: B
Representation:
Counsel:
Applicant : Mr P D Yovich (on 7 July) & Mr K P Bates (on 25 July & 10 August)
Respondent : Mr E J Cade (on 7 & 25 July) & Mr S A Walker (on 10 August)
Solicitors:
Applicant : State Director of Public Prosecutions
Respondent : Aboriginal Legal Service
Case(s) referred to in judgment(s):
Director of Public Prosecutions v Allen [2006] WASC 160
Director of Public Prosecutions v Williams [2006] WASC 140
Case(s) also cited:
Nil
(Page 3)
1 BLAXELL J: This is an application under the Dangerous Sexual Offenders Act 2006 (WA) ("the Act") for either a continuing detention order or a supervision order against the respondent. When the application was filed the respondent was serving a sentence of imprisonment for a "serious sexual offence" (as defined in s 3 of the Act) which was due to expire on 25 July 2006.
2 When the matter came on for a preliminary hearing on 7 July 2006 I was satisfied that there were reasonable grounds for believing that the court might find that the respondent is a "serious danger to the community". Although the respondent did not concede this issue, his counsel accepted that the materials before the court allowed such a determination to be made.
3 It then became necessary (pursuant to s 14(2)(a) of the Act) to name two psychiatrists to examine the respondent, but at that stage I was unaware of the identity of any suitable psychiatrists. (In that regard and for the reasons outlined in Director of Public Prosecutions v Williams [2006] WASC 140 at [34] - [37] it was inappropriate that I be involved in the selection of the psychiatrists to be named.)
4 However I was told that the parties might be able to agree on the names of suitable psychiatrists, and for that reason I adjourned the preliminary hearing until 25 July. As the respondent's sentence was to expire on 25 July, I also adjourned until then the question of whether there should be an order for his continuing detention pursuant to s 14(2)(b).
5 On 25 July 2006 the parties had agreed on the psychiatrists that should be named and I accordingly ordered that the respondent undergo examinations by Dr Adam Brett and Dr Vicki Pascu.
6 As to the question of the respondent's continuing custody, I was told that his solicitors were still investigating the arrangements that could be made for his supervised release into the community pending the final hearing of the application. I accordingly adjourned the preliminary hearing (a number of times) until 10 August 2006. On that date I ordered that the respondent be detained in custody until the final hearing, but also granted him liberty to apply at any time for a variation of that order.
7 When making each of the above decisions at the preliminary hearing I indicated that full written reasons would be delivered in due course. These are those reasons for decision.
(Page 4)
The respondent's background and history of offending
8 I have been provided with various reports and other materials pursuant to s 41(3) of the Act. These documents include summaries of material facts, pre-sentence reports, sentencing transcripts, treatment reports, and a psychological assessment. I now summarise the respondent's background and history of offending as derived from these materials.
9 The respondent was born at Derby on 28 May 1980 to parents who came from a remote Aboriginal community. Because his parents were cousins of a particular kind, their relationship was not sanctioned by tribal law. Consequently the respondent was always subject to some stigma within his community.
10 The parents were each murdered about a year apart when the respondent was approximately 10 years of age. No one ever explained or talked to him at the time about what had happened, and it is suggested that he has showed signs of a delayed grief reaction.
11 Following the deaths of his parents the respondent was raised by his aunt (or "second mother") and her husband in a family of six brothers and sisters. Subsequently, the stepfather died in a "fighting accident" and the youngest brother (with whom the respondent was closest) died of pneumonia. The psychological assessment indicates that the respondent was negatively affected by all of these events.
12 It also seems that the respondent did not have what might be thought to be a normal sexual development. He first learnt about sexual matters at about 10 years of age by watching pornographic movies with his friends about once a week. According to a report, these sessions "continued as a pastime with his peers". When he was 18 years of age a psychological report described his attitude to women and girls as:
" ... somewhat immature and exploitative. He does not particularly like their company and sees them mainly in terms of their sexuality. He does not have or want a steady girlfriend, preferring brief sexual encounters without commitment ... A lack of empathy for members of the opposite sex is bound to be factor in the offences of which he has been convicted."
13 During his teenage years the respondent also developed problems with alcohol and marijuana. He was not alone in this as all of his peers used alcohol and/or other drugs. The respondent's preference was for
(Page 5)
- marijuana but when this was not available he resorted to alcohol which he now acknowledges often got him into trouble.
14 Despite all of these negative aspects to the respondent's upbringing he showed some promise with his education. He attended school up until year 10 at his local community and then went to Perth for year 11. However after getting into trouble for fighting, he transferred to a school in Esperance where he completed years 11 and 12. (A report describes this as "a rare achievement for someone of his background".) He then commenced an apprenticeship in motor mechanics but ceased this when he came into conflict with other apprentices.
15 When the respondent returned to his home community, he was briefly employed at a bakery and then on a health/environment project. However, he was never fully accepted and "on the least pretext the community ... rejected him". At about 18 years of age he transferred to another community closer to Derby but was also rejected there. Throughout the period since then when he has not been in prison he has been largely unemployed.
16 The respondent committed his first offence in 1996 when he was 15 years of age. It was a single offence of indecent assault committed on his 4 or 5-year-old nephew. The precise facts are not before me, but I assume that it was not a very serious offence because the Kununurra Children's Court referred the respondent to a Juvenile Justice Team.
17 On 27 October 1999 when the respondent was 18 years of age he committed offences of aggravated burglary and indecent assault. The victim was a 27-year-old woman who was not well known to him. At about 4.30 am he jumped a back fence, went inside her house and entered her bedroom. While she was asleep he fondled her breasts and vagina but then fled when she woke up and started shouting.
18 When being sentenced for these offences the court was told that the respondent had broken into the house to look for food and that the indecent assault had occurred spontaneously. On this basis he was dealt with very leniently and placed upon a 12 months' community based order (as from 21 February 2000). However during the course of later treatment in prison, the respondent (to his credit) voluntarily admitted that those offences had been planned for about two hours beforehand while he was sexually fantasising about his victim.
19 During March 2000 (only about one month after the community based order), the respondent committed two offences of assault
(Page 6)
- occasioning bodily harm, and one offence of deprivation of liberty. These offences were all committed on a girl aged 13 years and involved him grabbing hold of her and punching her twice in the face. The respondent was drunk at the time and his motivation in committing the offences is unclear. On 19 March 2000 the respondent was charged with those three offences and released to bail.
20 Four days later on 23 March 2000 the respondent committed an offence of sexual penetration without consent. The facts of that offence were that the respondent was at a party at a house in Derby where the 28-year-old female complainant was asleep in a bedroom. He entered the bedroom, removed her clothing while she slept, and penetrated her vagina with his penis. The complainant woke up to find the respondent lying on top of her. Both the respondent and the victim were drunk at the time.
21 On 6 June 2000 the respondent appeared in the District Court in Broome and pleaded guilty to all four offences. He received terms of imprisonment totalling 4 years 6 months and was made eligible for parole.
22 After commencing this term of imprisonment the respondent was assessed as being suitable for the Sex Offenders' Treatment Programme. During the last three months of 2000 he participated in a programme designed to address issues specific to Aboriginal culture and which included a substance abuse component. However his level of participation was "minimal" and he showed little victim empathy, instead viewing himself as a victim. Upon completing the programme he continued to have several unresolved treatment issues and he was assessed as being at high risk of re-offending.
23 Approximately one year later, the respondent was assessed with a view to his suitability for release on parole. Contact was made with the elders at his home community to see on what basis he might be released back there under close supervision. The community was "willing to give him a chance", and on 25 March 2002, he was released to parole subject to conditions which included the following:
- Upon arrival at the community the respondent was to meet with the elders to discuss their expectations of him.
- If the respondent re-offended in any way he would be evicted from the community permanently.
- He would also be evicted if he "leads young members of the community astray in any way".
(Page 7)
24 Unfortunately, the respondent went on to breach those parole conditions by committing two offences of sexually penetrating a child under 13 years, and two offences of attempted sexual penetration of that child. These acts occurred on unknown dates during 2002 and involved penile penetration or attempted penetration of the same 12-year-old girl. On 20 April 2004 the respondent was sentenced for all offences in the Broome District Court and received a total of 32 months imprisonment without parole.
25 Upon re-entering the prison system the respondent declined to participate in an Indigenous Sex Offender Programme stating that he preferred to "just do my time". He later changed his mind, but was considered unsuitable for the programme because his only motivation was to achieve a minimum security rating.
26 The respondent's sexual problems remain untreated, and he continues to be assessed at high risk of re-offending.
Why I was satisfied in terms of s 14
27 Although I was not aware of all of the details of the respondent's background on 7 July 2006, the reasons why I was satisfied in terms of s 14 should be obvious. There have been three separate episodes of serious sexual offending by him as an adult, and all but one of those offences was committed in breach of either a community based order and bail, or parole. It is a fair inference that the respondent has been unable or unwilling to restrain himself from such offending.
28 This pattern of re-offending is also consistent with his lack of empathy and inappropriate attitudes towards his victims, as well as his failure to respond to treatment programmes. The psychologists who have assessed him for the purposes of those programmes consider that he is at high risk of re-offending.
29 In all of these circumstances I had no hesitation in concluding that there were reasonable grounds for believing that the court might find that the respondent is a serious danger to the community.
The reasons for ordering the respondent's interim detention in custody
30 As a result of being satisfied in terms of s 14(1), I have had a discretion at all material times to order that the respondent be detained in custody beyond the expiration of his sentence on 25 July 2006. During adjournments of the preliminary hearing up until 10 August 2006, I exercised that discretion by consent and on an interim basis.
(Page 8)
31 One of the reasons for adjourning the preliminary hearing until 10 August 2006 was to enable the respondent's solicitors to investigate the prospects of him being released back to his community under the supervisory conditions of a personal undertaking. In Director of Public Prosecutions v Allen [2006] WASC 160 at [56] - [61] I outlined the basis on which such a release might occur.
32 In the present instance it was not possible to arrive at any suitable supervisory arrangements, which is not surprising given the respondent's breach of similar conditions when last on parole. In any event, there would have been difficulties in conducting the required assessments by psychiatrists in Perth, if the respondent had been located at a remote Kimberley community. Accordingly, the investigation of these prospects came to naught.
33 I was therefore faced with the choice of allowing the respondent's unsupervised release back into the community, or alternatively ordering that he be detained in custody until the application is finally heard. In deciding to exercise my discretion to take the latter course, I weighed the strength of the applicant's case that the respondent represents an unacceptable risk to the community against the undesirability of depriving him of his liberty prior to a final determination being made.
34 On the basis of the evidence and materials presently available, I considered that the applicant does have a reasonably strong case that the respondent is a "serious danger to the community" in that there is an unacceptable risk that he would commit a serious sexual offence if released without supervision. In my view this concern outweighs the undesirability of depriving the respondent of his liberty for a continuing interim period. I accordingly ordered that he be detained in custody until the final hearing on 7 and 8 December 2006.
35 The respondent nevertheless retains a faint hope that further negotiations may result in an agreement for his supervised release back into his community. It is also suggested that such an agreement might occur after the psychiatrists have conducted all of the necessary assessments. For this reason, I also granted the respondent liberty to apply at short notice for variation of the interim custody order. Needless to say, any such arrangements would need to engender confidence that the respondent will not re-offend before a variation could occur.
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