Director of Public Prosecutions for Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 3]
[2016] WASC 86
•14 MARCH 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- PAUL DOUGLAS ALLEN also known as PAUL ALAN FRANCIS DEVERELL [No 3] [2016] WASC 86
CORAM: ALLANSON J
HEARD: 30 OCTOBER, 10 DECEMBER 2015 & 14 MARCH 2016
DELIVERED : 14 MARCH 2016
FILE NO/S: MCS 21 of 2006
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
PAUL DOUGLAS ALLEN also known as PAUL ALAN FRANCIS DEVERELL
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Contravention of supervision order - Application under s 22 - Orders under s 23 - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 22, s 23(1)(a), s 23(1)(b), s 23A, s 40A
Result:
Continuing detention order made
Category: B
Representation:
Counsel:
Applicant: Mr M T Trowell QC
Respondent: Mr D J McKenzie
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: David McKenzie Legal Pty Ltd
Case(s) referred to in judgment(s):
Director of Public Prosecutions for Western Australia v Williams [2011] WASC 33
Italiano v The State of Western Australia [2009] WASCA 116
TJD v The State of Western Australia [2014] WASCA 10
Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; (2008) 38 WAR 217
ALLANSON J:
(This judgment was delivered orally on 14 March 2016 and has been edited from the transcript.)
Mr Allen is a sex offender. He is subject to a supervision order made pursuant to the Dangerous Sexual Offenders Act 2006 (WA). Mr Allen contravened the supervision order. He is in custody pending the determination of this application. The court must decide whether he should be released subject to appropriate conditions, or detained in custody.
In these reasons all references to legislation are to the Dangerous Sexual Offenders Act 2006 unless otherwise indicated.
The application
Mr Allen was due for release on 24 December 2015. By an application filed 24 September 2014, the Director of Public Prosecutions (DPP) applied for an order under s 23(1). The application sought, in the alternative, an order under s 23(1)(b) (for continued detention), or an order under s 23(1)(a) (release under supervision).
The application was heard on 30 October 2015, when the court heard evidence from the two psychiatrists who had prepared reports to the court pursuant to s 23A. The matter did not conclude on 30 October 2015. The psychiatric evidence then available was to the effect that anti‑libidinal medication is an important element of any supervised release. There was also evidence questioning whether Mr Allen should continue treatment with anti‑libidinal medication. Further medical assessment was required, but had not then been arranged. As a result, the hearing was adjourned to 10 December 2015 to enable necessary testing to be done, and for Mr Allen to be properly advised.
On 10 December 2015, the court was advised that nothing had yet been done to either test Mr Allen, or give him adequate advice to enable him to make an informed decision whether he should consent to taking the medication. The department was still making arrangements. The hearing was further adjourned on 10 December to 14 March 2016.
On 14 March 2016, the court received a report from Dr Hinton. Most importantly it shows that Mr Allen has now been informed regarding the health effects of the medication. When the time comes for him to make a decision about whether to consent to recommencing the medication, he should be able to make an informed decision.
The principles
The proper interpretation of s 23 was considered by the Court of Appeal in TJD v The State of Western Australia [2014] WASCA 10 [47] ‑ [60]. Relevantly:
(1)the power in s 23 is based on an existing, standing, positive finding that a person is a serious danger to the community;
(2)both s 23(1)(a) and s 23(1)(b) require satisfaction on the balance of probabilities that the person has contravened, is contravening or is likely to contravene a supervision order; and
(3)for an order under s 23(1)(b) the court must also be satisfied that there is an unacceptable risk that if an indefinite detention order were not made the person would commit a serious sexual offence.
To decide whether the risk is unacceptable, the court must balance matters including the nature of the risk, the likelihood of the risk being realised, and the serious consequences for a victim, and also the serious consequences for the offender who has served the sentenced imposed for his offending of an order that he be detained indefinitely: see Italiano v The State of Western Australia [2009] WASCA 116 [46]. In performing this balancing exercise, the court must give effect to s 23(2), which provides that the paramount consideration is the need to ensure adequate protection of the community.
Offending leading to the making of the supervision order
Between 1998 and 2001, Mr Allen committed 12 offences of a sexual nature against young children. Mr Allen was then aged between 18 and 21 years. The children were of various ages, between 4 years and 10 years. The victims in all but one of the offences were young boys. Mr Allen admits that the focus of his sexual interest is young boys.
While Mr Allen was serving the sentence for the last of those offences, the DPP applied for orders under s 14 and s 17.
The offences Mr Allen committed between 1998 and 2001 are the only offences in which he has engaged in sexual contact with a child. But he has a history of subsequent offending relating to his sexual interest in children, and by his failure to comply with conditions of his supervision order.
The first order under the Act
On 12 March 2007, Blaxell J placed Mr Allen on a supervision order. The supervision order was made subject to conditions designed to minimise the risk of Mr Allen reoffending.
Mr Allen commenced taking anti-libidinal medication as part of those conditions.
Breaches of the supervision order
In 2009, Mr Allen admitted 14 breaches of the conditions of the supervision order. The breaches included being in possession of videos, DVDs, and newspaper and magazine cuttings that contained images of children. The images were not indecent, but Mr Allen admitted using them for the purposes of sexual arousal.
Mr Allen also missed appointments for medical testing of testosterone levels. He admitted that he had not taken the prescribed anti-libidinal medications regularly.
Mr Allen spent three months in custody as a result of the breaches, but was then released on an amended supervision order.
On 10 December 2009, the court further amended the supervision order and the expiry date was extended to 9 December 2014.
On 4 June 2010, the order was again amended as a result of material containing images of children being located at Mr Allen's home.
On 2 June 2011 and 12 July 2012, Mr Allen was convicted again of breaches of the requirements of the order.
The offences in 2013
In September 2013, Mr Allen was charged with:
(1)failure to comply with a reporting obligation under the Community Protection (Offender Reporting) Act 2004 (WA);
(2)four offences under s 40A of the Act for contravening conditions of the supervision order; and
(3)possessing child exploitation material contrary to s 220 of the Criminal Code.
He was remanded in custody on 25 September 2013.
On 3 October 2013, Mr Allen was charged with another offence of contravening the supervision order.
Mr Allen pleaded guilty to all charges. On 8 August 2014, he was sentenced in the District Court to imprisonment for 21 months for the offence of possessing child exploitation material that he had collected over a period of about 18 months. On 12 August 2014, he was sentenced in the Magistrates Court for contravening the Community Protection (Offender Reporting) Act, and five offences of contravening the supervision order. A sentence of imprisonment was imposed, with 6 months cumulative on the term imposed in the District Court.
Mr Allen has been in prison since 25 September 2013. The sentence expired on 24 December 2015. He remains in prison pending the decision on this application.
The evidence
The following reports were tendered by the DPP:
(1)Psychiatric Reports of Dr Peter A Wynn Owen, dated 13 January 2015 and 18 October 2015;
(2)Psychiatric Reports of Dr Bryan Tanney, dated 14 January 2015 and 9 October 2015; and
(3)Treatment Progress Report of Sarah Ballantyne, Senior Counselling Psychologist ‑ Forensic Psychological Service, dated 13 October 2015.
Following the adjournment of the hearing in December 2015, each of Dr Wynn Owen (1 March 2016) and Dr Tanney (2 February 2016) provided a further report to the court.
Two books of materials for the purpose of the hearing were also tendered and contained:
(1)the Supervision Order, as amended;
(2)the statements of material facts and transcripts of sentencing proceedings for matters dealt with on 2 June 2011 and 12 July 2012 (both in the Magistrates Court), 8 August 2014 in the District Court, and 12 August 2014 in the Magistrates Court;
(3)witness statements and the transcript of Mr Allen's interview with police in relation to the charge of possessing child exploitation material;
(4)pre-sentence, psychological and psychiatric reports for the sentencing in the District Court; and
(5) documents relating to the period of Mr Allen's imprisonment, including an Intelligence Summary (a summary of reports relating to his conduct in prison) which records occasions when Mr Allen was found to be collecting and hiding images of children obtained from catalogues and magazines in his prison cell.
The court also received a Community Supervision Assessment, dated 21 October 2015. The author, Ms Cassie McNally (Senior Community Corrections Officer, Public Protection Unit), gave oral evidence at the hearing on 30 October 2015.
Dr Wynn Owen and Dr Tanney gave evidence at the hearings on 30 October 2015 and on 14 March 2016.
Oral evidence and a report were received on 10 December 2015, from Dr Joy Rowland, Acting Deputy Director, Health Services, Department of Corrections. Dr Rowland's evidence concerned the steps being taken by the department to enable Mr Allen to receive proper advice about the anti‑libidinal treatment. The result was the short report from Dr Hinton, following consultation with Mr Allen, dated 14 March 2016.
Although this matter was argued, particularly on 14 March 2016, on a relatively limited basis, because of the questions posed by s 23 I have taken all of that material into account.
Has Mr Allen contravened a condition of the supervision order?
Contravention of a supervision order without reasonable excuse is an offence under s 40A. In 2014, Mr Allen was charged and convicted of offences under s 40A. The charges were dealt with in the Magistrates Court. Mr Allen pleaded guilty and admitted the material facts alleged against him in those proceedings, and admitted the contraventions again in this application. I am satisfied that Mr Allen has contravened a condition of the supervision order. The condition for making an order under s 23 is satisfied.
None of the breaches of the order was based upon the commission of a sexual offence, and none of them related to any contact with a child. While the possession of child exploitation material is a serious offence, and indicative of Mr Allen's continued sexual interest in children, it is not a sexual offence as defined in the Act.
Is there an unacceptable risk that, if a detention order were not made, Mr Allen would commit a serious sexual offence
There is an existing, standing, positive finding that Mr Allen is a serious danger to the community. The issue in this application is whether he should be subject to a continuing detention order, or released subject to conditions.
The psychiatric evidence
The two psychiatrists prepared written reports. Each gave supplementary oral evidence and was cross-examined. The respondent did not dispute the expertise or experience of either witness. Because of the basis on which this matter will be decided, it is unnecessary to canvas the evidence in great detail.
Dr Wynn Owen
Dr Wynn Owen had regard to a wide range of information including documents relating to Mr Allen's offending, discussions with a psychologist who had been treating him, and a three hour interview with Mr Allen on 29 December 2014.
Dr Wynn Owen reported that Mr Allen has an acknowledged ongoing sexual preference for young children, and in particular boys aged 7 to 14 years. In summary, Dr Wynn Owen stated that Mr Allen presents a high risk of serious sexual offending 'based on his Static-99 score, the primacy and persistence of paedophilic fantasy and seeking child pornography in the face of significant adverse consequences'. Specifically, Dr Wynn Owen referred to the ongoing use of child pornography as a risk factor which elevates the risk of serious reoffending. In the update to his report, in October 2015, Dr Wynn Owen reported that the ongoing use of collected images of children while in prison highlighted 'the priority/saliency of his paedophilic thoughts and drives'.
Dr Wynn Owen recommended the continuation of counselling, and consideration of reinstatement of the anti-libidinal agent, if it were found to be suitable following appropriate medical assessment. In his evidence on 30 October 2015, Dr Wynn Owen confirmed that in his view the reinstatement of anti-libidinal medication was an important factor in ensuring that Mr Allen did not again commit a serious sexual offence. He described the reduction in underlying desire, by the use of medication, as the thing that was going to make the biggest difference in the short term.
In the addendum to his report, dated 1 March 2016, Dr Wynn Owen again addressed the issue of anti-libidinal treatment. In summary, in the light of Mr Allen's ongoing paedophilic interest, and response to stimuli such as proximity to young children and images of children, the medication would ideally be required for as long as Mr Allen could tolerate it without undue harm. Without medication, risk management would depend on the effectiveness of the management and supervision structure. On the material available to him, Dr Wynn Owen could offer no definite opinion on the effectiveness of the available options.
Dr Bryan Tanney
Dr Tanney had previously prepared a report on Mr Allen for the application that was heard in 2006. For the present application, he reviewed that material and the documents provided by the department. He interviewed Mr Allen.
Dr Tanney also assessed risk of reoffending. Based upon offence free time in the community, the passage of time and increased maturity, Dr Tanney assessed a significant lessening in the likelihood of sexual reoffending. But he still assessed the risk for Mr Allen as moderate to moderate-high.
Dr Tanney concluded that community supervision is realistic and can manage the risk, with consideration of a further extension of the period under which Mr Allen is subject to supervision. He also recommended anti-libidinal therapy as a condition of community supervision.
In his recent, second supplementary report, Dr Tanney again considered the need for medication to diminish paedophilic desires and lessen the risk of re‑offending. He expressed the view that the risk of re‑offending would be too great without medication being part of release conditions. Whether the risk is unacceptable is, of course, for the court. But the underlying reasoning, and the opinion regarding the level of risk, is directly relevant to the court's task.
In summary, all of the medical evidence before the court supports a finding that it is likely that the use of anti-libidinal medication contributed to the ability of Mr Allen to remain in the community for seven years without further sexual offending. The risk of further offending is likely to be higher without management that includes that proven, effective measure.
Conclusion
The court can only act on evidence. I am not required to accept the psychiatric evidence, although I must have regard to the scheme of the Act and the acceptance by Parliament through the Act of the expertise of psychiatrists to examine an offender and make and assessment of the level of risk: Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; (2008) 38 WAR 217 [38] - [39]. The expert evidence in this case has not been challenged and there is neither anything inherent in the evidence nor any other fact or circumstance to call it into doubt. It would be wrong to disregard it capriciously.
Mr Allen continues to pose a risk of re-offending. The major risk factor is his sexual interest in young boys, which has led him to offend in the past. Because of the nature of the offending, and the likely age of any potential victim, any offence is likely to cause significant harm and have serious consequences for the victim and for others. There is a demonstrated need to protect the members of the community from a risk of that kind.
While Mr Allen did not offend directly against any child while on supervised release, he demonstrated his continued sexual interest in young boys, and his readiness to engage in serious criminal acts as a result of that interest. The possession of child exploitation material is not a sexual offence, as defined in the Act. But it is a crime, for which the available penalty includes imprisonment for 7 years. Mr Allen has also pursued his practice of collecting images of children, despite knowing that suppressing that behaviour is part of the strategy to control his offending behaviour, and knowing the consequences that attach to breach of conditions of the supervision order.
The critical issue in this case is whether the risk of committing a serious sexual offence, even under the conditions that apply to a supervised release, has been shown to be unacceptable, so that Mr Allen should be further detained for control, care or treatment.
There are factors which on which the court could find that the risk of re‑offending may be managed without an order for continued detention. On the current evidence, however, the conditions of release under supervision must include a condition that Mr Allen re‑commence anti‑libidinal medication. Mr Allen may require more time to decide whether he will agree to such a condition. He expressed to Dr Hinton a strong opposition to again taking the medication.
It would also be preferable for the DPP to have an opportunity to investigate the most recent evidence of Mr Allen's conduct while in custody. The significance of a house plan found in his cell cannot be assessed on the evidence now available. It is, perhaps, consistent with his previously expressed interest in bondage sexual practices (as a passive participant). The possibility that it relates to his paedophilic drives cannot, however, be dismissed. It is not necessary to make any findings now as, for other reasons, Mr Allen cannot now be released on a supervision order.
An unanticipated consequence of the delay in finalising these proceedings is that the accommodation that had been available to Mr Allen, should he be released, is now not immediately available. The family who were prepared to provide accommodation cannot now do so before early July. No suitable alternative accommodation has been suggested.
It is not simply finding a place for Mr Allen to live. The condition for accommodation involves an assessment of whether the proposed address is suitable, including an evaluation of its location with regard to schools, parks and other places where children will be, and its compatibility with electronic monitoring. The problem of accommodation for offenders released under supervision is not new. It has, in earlier cases, led to the court adjourning an application despite the difficulties that course poses: see Director of Public Prosecutions for Western Australia v Williams [2011] WASC 33 [16] - [17].
The possibility of an adjournment until July, to see if the accommodation question had resolved, was considered in argument. Counsel for Mr Allen did not request an adjournment, fully aware that the result must be an order for continued detention. Both parties asked me to decide this matter today.
I find that Mr Allen contravened the conditions of his supervision order, by the conduct leading to his convictions for breach of s40A in 2014. There is no suitable accommodation now available to enable him to be released.
It is not yet clear whether he will consent to a condition for the recommencement of anti‑libidinal medication.
Having regard to all of the material and the unavailability of any suitable accommodation I am satisfied that if an order, under s 23(1)(b) is not made for the detention of Mr Allen in custody for an indefinite term for control care or treatment, there is an unacceptable risk that he will commit a serious sexual offence.
An order under s 23(1)(b) will be made for the continued detention of Mr Allen.
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