Director of Public Prosecutions for Western Australia v Stephenson
[2015] WASC 496
•24 DECEMBER 2015
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- STEPHENSON [2015] WASC 496
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 496 | |
| Case No: | DSO:7/2015 | 17, 18 & 21 DECEMBER 2015 | |
| Coram: | ALLANSON J | 24/12/15 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Supervision order made | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA ANDREW PETER STEPHENSON |
Catchwords: | Criminal law Dangerous Sexual Offenders Act 2006 (WA) Application for orders under div 2 Turns on own facts |
Legislation: | Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(4) Community Protection (Offender Reporting) Act 2004 (WA), s 85G, pt 5, s 93, s 94A Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17, s 18, s 18(3)(b), s 24, s 37, s 38, s 42(4) Misuse of Drugs Act 1981 (WA) |
Case References: | Director of Public Prosecutions (WA) v Decke [2009] WASC 312 Director of Public Prosecutions (WA) v MJD [No 2] [2015] WASC 346 Director of Public Prosecutions (WA) v Wesley [No 2] [2015] WASC 168 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 Italiano v The State of Western Australia [2009] WASCA 116 The State of Western Australia v Latimer [2006] WASC 235 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Plaintiff
AND
ANDREW PETER STEPHENSON
Accused
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for orders under div 2 - Turns on own facts
Legislation:
Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(4)
Community Protection (Offender Reporting) Act 2004 (WA), s 85G, pt 5, s 93, s 94A
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17, s 18, s 18(3)(b), s 24, s 37, s 38, s 42(4)
Misuse of Drugs Act 1981 (WA)
Result:
Supervision order made
Category: B
Representation:
Counsel:
Plaintiff : Ms K Robinson
Accused : Ms M Barone
Solicitors:
Plaintiff : Director of Public Prosecutions (WA)
Accused : Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v MJD [No 2] [2015] WASC 346
Director of Public Prosecutions (WA) v Wesley [No 2] [2015] WASC 168
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Latimer [2006] WASC 235
1 ALLANSON J: Andrew Peter Stephenson is under sentence of imprisonment for serious sexual offences. On 11 September 2015, the Director of Public Prosecutions applied for orders under s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) in relation to Mr Stephenson. Under s 17, if the court finds that Mr Stephenson is a serious danger to the community, the court may:
(a) order that he be detained in custody for an indefinite term for control, care, or treatment; or
(b) order that at all times during the period stated in the order when he is not in custody Mr Stephenson be subject to conditions that the court considers appropriate and states in the order.
2 In this application there are essentially two questions:
(a) is Mr Stephenson a serious danger to the community; and,
(b) if so, should he be detained in custody or released subject to conditions.
3 For the reasons that follow, I am satisfied that there is an unacceptable risk that Mr Stephenson would re-offend if he were to be released without supervision. I am also satisfied that he should be released, subject to appropriate conditions.
4 In these reasons unless otherwise stated, all references to legislation are to sections of the Dangerous Sexual Offenders Act.
Background
5 Mr Stephenson has a history of sexual offending against very young children. On 16 September 1999, he was convicted of one offence of indecently dealing with a child, and three offences of sexual penetration of a child under 13. He was sentenced to imprisonment. In 2005, Mr Stephenson was convicted of three offences of sexual penetration of a child under 13, procuring a child to engage in sexual behaviour, two offences of indecently dealing with a child, two offences of indecently recording a child, and two offences of copying child pornography. He was sentenced to imprisonment for 11 years. He is currently serving that sentence, which is due to end on 30 December 2015.
6 On 10 December 2010, Mr Stephenson was convicted on two counts of possessing child pornography and sentenced to 4 months' imprisonment to be served concurrently with his existing term. He committed the offences while in prison.
Is Mr Stephenson a serious danger to the community?
7 Before finding that Mr Stephenson is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that if he were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence: s 7(1). The word 'unacceptable' necessarily connotes a balancing exercise requiring the court to have regard to matters including the likelihood that he will re-offend, the type of sexual offence which he is likely to commit (if that can be predicted), and the serious consequences of making a finding that an unacceptable risk exists: see Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] - [65]; Italiano v The State of Western Australia [2009] WASCA 116 [46] (Buss JA).
8 The DPP has the onus of satisfying the court of the matters in s 7(1) and the court has to be satisfied by acceptable and cogent evidence, and to a high degree of probability.
9 Section 7(3)(a) - (i) specifies matters to which the court must have regard. There is considerable overlap in the evidence and findings relevant to those separate paragraphs. Section 7(3)(j) requires the court to have regard also to any other relevant matter.
10 In considering the factors in s 7(3), the court is generally bound by the rules of evidence, except as modified by s 42(4). Section 42(4) provides that the court may receive in evidence:
(a) any document relevant to a person's antecedents or criminal record;
(b) anything relevant contained in the official transcript of any proceedings against a person for a serious sexual offence, or contained in any medical, psychiatric, psychological or other report tendered in proceeding of that kind.
11 Mr Stephenson's antecedents and criminal record are one of the relevant matters. I will set out first the material relating to his offending because it is important to understanding the other material.
Mr Stephenson's antecedents and criminal record: s 7(3)(g)
12 Mr Stephenson is now aged 50. He comes from a normal family background, with a good education and a good work history before 1999. He has a minor record of offending other than sexual offences. Before 1999, he had incurred convictions on matters relating to traffic infringements, for failing to give his name and address, and for providing a false name and address. In June 2005, Mr Stephenson was convicted of two offences under the Misuse of Drugs Act 1981 (WA); for possession of a prohibited drug and possession of a smoking implement.
13 The offences directly relevant to these proceedings occurred in 1997 to 1998, and 2004. The offences in 2010, while not sexual offences for the purposes of the Act, also have a direct bearing on the question before the court because they are a manifestation of Mr Stephenson's sexual deviance.
The 1997 - 1998 offences
14 Around 1996, Mr Stephenson formed a relationship with a woman who had two children: a boy (T), and a girl (E). The offences against E occurred between about July 1997 and January 1998. E was then aged about 5. Mr Stephenson had been, in effect, her step father for some time, and she called him 'daddy'.
15 On three occasions, Mr Stephenson penetrated E's vagina with his tongue. The offences occurred while the mother was out and Mr Stephenson was caring for the child.
16 The charge regarding T related to a single occasion when Mr Stephenson touched T's penis by putting his hand inside the boy's boxer shorts. The offence was committed around Christmas 1997. T was then aged about 8.
17 Mr Stephenson pleaded not guilty and was convicted at trial. The principal evidence against him was admissions he made when interviewed by police. At trial, Mr Stephenson said that those admissions were false and that he only made them because he believed that otherwise he would never see the children again, and it would jeopardise the chances of their mother having the children again. Mr Stephenson still maintains his denial that he committed the offences against these children.
18 Mr Stephenson was sentenced to imprisonment for 7 years and 6 months. That sentence was reduced on appeal to imprisonment for 5 years. An appeal against conviction was dismissed.
19 Mr Stephenson was released from prison in July 2001.
The 2004 offences
20 The second group of offences was committed in the second half of 2004. Mr Stephenson was then aged 39. The victim of these offences, a female child, was 5. The offences occurred in Mr Stephenson's home.
21 Mr Stephenson had met the child's parents in 2003. Over a period of several months he befriended the parents and assisted them in various ways. On occasions he also provided them with cannabis. Sometimes the parents left the child in Mr Stephenson's care, including the times when the offences occurred.
22 The first charge alleged that Mr Stephenson indecently dealt with the child between 1 July and 30 September 2004, by masturbating in front of her. The material facts stated to the court on the plea said that this conduct had occurred on other occasions but only one charge had been pleaded as the child was unable to specify times and dates.
23 The next three offences were committed on 29 December 2004, when Mr Stephenson was looking after the child while her parents were out. On that occasion he penetrated her vagina with his penis, and recorded the act using a web camera. He then copied the vision, storing it on a computer.
24 The following day, the child's parents visited Mr Stephenson at his flat, bringing the child with them. Mr Stephenson asked the parents to run an errand for him and he was left looking after the child. Once the parents had gone, Mr Stephenson sexually penetrated the child digitally, and performed cunnilingus on her. He indecently dealt with her by placing his penis against the upper part of her bottom, and procured her to engage in a sexual act. On this occasion also, Mr Stephenson recorded himself sexually penetrating the child and copied the images onto his computer. In relation to the charge alleging the indecent act of placing his penis against the child's bottom, the statement of material facts alleged that similar conduct had occurred at other times but the child could not specify when or where.
25 Mr Stephenson was arrested on 31 December 2004. He initially denied the allegations, but pleaded guilty to the offences in September 2005. He admitted the material facts read by the prosecutor.
26 Mr Stephenson now denies committing the first of the offences to which he pleaded in 2005.
The 2010 offences
27 In 2010, Mr Stephenson was convicted on indictment, after trial before a judge alone, of two counts of possession of child pornography contrary to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA). The offences were committed while he was serving the prison sentence for the 2004 offences and related to two stories that Mr Stephenson began to write while in prison. The first of them was about 350 pages long. It described in detail sexual acts between a young girl, three of her friends and an adult male. All of the children were aged 6 years or less.
28 The second story was about sexual acts between a male child and adult women.
29 In sentencing Mr Stephenson for these offences, Davis DCJ described the depiction of the sexual activities in the two documents as 'disgusting and depraved, particularly as the children are described as the instigators of and willing participants in the activities'.
30 The offence of possession of child pornography is not itself a sexual offence as defined in the Act. The circumstances of this offence are clearly relevant to the present application, evidencing Mr Stephenson's persisting sexual interest in young children and beliefs regarding the sexuality of children which supported his offending conduct.
The psychiatrists' reports: s 7(3)(a)
31 The court received reports from two consultant psychiatrists, Dr Sam Febbo and Dr Gosia Wojnarowska, as required by s 37. Both doctors gave evidence at the hearing. Each of them is both experienced and well-qualified to give expert opinion on the issues arising in this case.
32 By s 38(1), the Chief Executive Officer of the Department of Corrective Services must give to each psychiatrist, for the purpose of preparing the report, any medical, psychiatric, prison, or other relevant report or information relating to the person to be examined that is in the Chief Executive Officer's possession or to which the Chief Executive Officer has, or may be given, access. A book of the materials made available to each psychiatrist under s 38 was admitted by consent at the hearing.
33 The report under s 37 is required to indicate the psychiatrist's assessment of the level of risk that Mr Stephenson would commit a serious sexual offence if not subject to a continuing detention or supervision order, and the reasons for that assessment. Each psychiatrist evaluated Mr Stephenson's risk by reference to various risk assessment tools - some of which involve a scoring of specified factors - and also by applying his or her clinical judgment and experience.
34 Mr Stephenson co-operated in the preparation of the reports.
35 There are some minor differences in the reports of Dr Febbo and Dr Wojnarowska regarding Mr Stephenson's history. The opinions of the psychiatrists are, however, broadly consistent on the question of the risk of re-offending and Mr Stephenson's ongoing need for treatment.
36 There are primarily two factors which led each of the doctors to assess Mr Stephenson's risk of re-offending as high.
37 First, there is the statistical evidence based on the Static-99 factors: these are factors relating to Mr Stephenson's history and offending history that have been found to correlate with a high risk of re-offending in the long term. There is no dispute that Mr Stephenson falls into the high risk group under Static-99. It is, however, only a statistical measure that says nothing about the individual.
38 Second, and more significantly, Mr Stephenson meets the criteria for sexual deviance. His paedophilic disorder is not exclusive, and he also has sexual interest in adult partners. But he is sexually attracted to pre-pubescent children, particularly young females. That attraction has two components. There is a component of sexual gratification, but also a desire for emotional connection that Mr Stephenson has not found in adult relationships. It is this sexual deviance which is the real risk factor.
39 Both psychiatrists considered that Mr Stephenson requires further treatment, including intensive psychological treatment directed to his sexual deviance, to manage his risk of re-offending in a similar manner. Each considered that risk is high if Mr Stephenson is not subject to an order under the Act. For example, Dr Wojnarowska commented that while Mr Stephenson now accepted that a child aged five is unable to consent, he still expressed the opinion (until challenged) that the child in the 2004 offences was not sexually naive and was a willing participant in what had occurred. She continued:
His difficulty in this area, in my opinion, is closely related to his deeply entrenched perception of children as 'small adults' consistent with his identification with children and the presence of paedophilic interest in them.
40 In cross-examination, Ms Barone carefully and thoroughly put to each witness the considerations that might support a conclusion that Mr Stephenson is now capable of self-management should he be released.
41 First, he is not psychopathic. Second, he has insight into his sexual deviance. This includes an acknowledgment that attitudes he held regarding the participation of young children in sexual activity, and shifting responsibility for his offending to others, were factors underlying his offending. Third, he has participated in two programs for sexual offenders while in custody, both of which reported positively on his participation and outcomes. Through those programs he has learned techniques to self-manage his deviant impulses. Fourth, he is motivated to address his sexual deviance. Dr Febbo questioned whether Mr Stephenson has to date understood the extent of motivation and effort still required to manage an entrenched and persisting sexual deviance, but he did not question that Mr Stephenson was motivated to address the disorder. Fifth, his paedophilia is not exclusive, and he has sexual interest in age appropriate relationships. The formation of appropriate relationships may prove protective against his sexual interest in young children. Sixth, he is now 50, and his sex drive will lower with age.
42 All of those matters were accepted by the witnesses. But each maintained the opinion that the sexual deviance is persistent and further treatment is required before it is sufficiently managed that Mr Stephenson's risk of re-offending is no longer high.
43 Importantly, the psychiatric evidence also strongly supports the finding that Mr Stephenson is unlikely to offend impulsively. Even without further treatment, a sexual offence against a stranger is most unlikely. With treatment, ultimately he should be able to manage himself and he is well along that path. But both witnesses believed he still requires external control.
Medical, psychiatric, psychological, or other assessments: s 7(3)(b)
44 In 2005, a report was prepared by David Summerton, psychologist, as an addendum to the pre-sentence report on the sentencing of Mr Stephenson for the 2004 offences. Mr Summerton's report enabled some comparison of the assessment of Mr Stephenson at about the time of his imprisonment, and before he attended programs within the prison, with the more recent assessments.
45 Mr Summerton's assessment using Static-99 was consistent with the two psychiatric reports. He also reported no indication of any clinically significant psycho-pathology or personality disturbance on psychometric testing.
46 Mr Summerton found indications of cognitive distortion in relation to the offending and Mr Stephenson's tendency to justify his behaviour. These matters were later addressed in the two treatment programs Mr Stephenson completed in prison.
47 A further pre-sentence report was prepared in 2010. It refers to an attached psychological report by a Ms Barbuzza, but that report was not included in the book of materials.
48 Mr Stephenson has twice been considered for parole, in 2013 and 2014. While parole was denied each time, the later of the parole assessments demonstrates the gains Mr Stephenson had made in the sex offender treatment programs.
Information indicating whether Mr Stephenson has a propensity to commit serious sexual offences in the future: s 7(3)(c)
49 Mr Stephenson committed serious sex offences in two groups of offences. The offences in 2004 were committed after an earlier term of imprisonment.
50 The evidence of the two psychiatrists is that:
1. The risk factors considered in the actuarial assessment tool, Static-99, place Mr Stephenson in the high risk category for re-offending. That is, of a sample of sex offenders, four out of ten who received a similar score were reconvicted within a five year period. Static-99 gives little specific detail about those who are at risk on an individual level.
2. The evaluation of Mr Stephenson using the psychopathy check list - revised (PCL-R) placed him in the low range for psychopathy, well below the cut off traditionally used to diagnose a psychopathic personality disorder.
3. The significant risk factor for Mr Stephenson reoffending is that he has a sexual deviancy, paedophilic disorder. It is not exclusive, that is he has sexual attraction also to age appropriate partners. But he has a sexual attraction to pre-pubescent children.
51 Significantly, both doctors are of the opinion that were Mr Stephenson to reoffend in the future by committing a serious sexual offence, the offending would be similar to his previous offending. That is, it would follow the development of a relationship with the adult parent or carer of the child and the development of a caring role towards the child.
52 Dr Febbo said:
Mr Stephenson's sexual deviance appears to be long standing and entrenched and the quality of the history that Mr Stephenson provides suggests that, at least in part, he justifies the offending by the development of an intimate relationship with the child akin to a relationship that he would develop with an adult woman. There appears to be further justification by the choice of the victim who Mr Stephenson perceives as being vulnerable and neglected thus allowing him to develop a caring and misguided protective role.
53 Both reporting doctors considered it unlikely or very unlikely that Mr Stephenson would interfere with a child not known to him or offend impulsively. The 'grooming' leading up to sexual offending was not simply the method by which Mr Stephenson obtained the trust of the parents so as to gain access to the child for sexual gratification. Rather it was a part of a process by which Mr Stephenson formed an emotional attachment to the child with the resulting sexual conduct being not merely for sexual gratification but also out of his desire for intimacy or closeness.
Any pattern of offending behaviour: s 7(3)(d)
54 There is some pattern to the two groups of sexual offences. In each case, Mr Stephenson befriended and formed a relationship with the parent or parents of the victim.
55 The children were all pre-pubescent. The two girls were both five years old.
56 The pornography offences demonstrate continuing sexual fantasies about young children, and a continuing belief in children as willing participants in sexual acts.
Mr Stephenson's efforts to address the cause or causes of his offending behaviour, and participation in rehabilitation programs: s 7(3)(e)
57 Between September 2012 and November 2012, Mr Stephenson participated in the Think First (Sex Offender) Program. A completion report dated 27 December 2012 describes him as a good participant who appeared to make gains from the program. The report records one significant reservation, 'a lack of awareness of his self-justifications and "victim stance" attitude as well as trust issues with the law and authority and a tendency to put the blame on others regarding his offence'. This is consistent with the attitudes reported by Mr Summerton in 2005.
58 Between 2 May 2013 and 7 November 2013, Mr Stephenson also completed a Sex Offending Intensive Program. Again the report on completion of the programme is generally positive with reference to Mr Stephenson showing greater understanding of the victim's possible ongoing trauma. In summary, Mr Stephenson was described as meeting some program objectives and making some treatment gains and was observed to gain greater understanding of the factors underlying his offending. Program facilitators advised that Mr Stephenson would benefit from individual therapeutic intervention with a private psychologist to further address deviant sexual interests and promote sexual fantasy control.
Whether Mr Stephenson's participation in rehabilitation programs has had a positive effect: s 7(3)(f)
59 Mr Stephenson's participation in the two programs was assessed as positive, subject to the reservations I have noted. Such reservations are not unusual.
60 In a report dated 20 November 2015, Dr Angela Cooney, Senior Forensic Psychologist, provided a further assessment based on information including interviews with Mr Stephenson in October and November 2015. The purpose of Dr Cooney's report was to assist with identifying supervision, management and assessment strategies should Mr Stephenson be released subject to a supervision order. Dr Cooney gave oral evidence at the hearing.
61 Dr Cooney summarises the results of the programs Mr Stephenson undertook while in prison, and the general positive assessment. In particular, Mr Stephenson had been reported as developing strategies to assist him in self-management of his risk factors.
62 Dr Cooney reported, however, that Mr Stephenson may not have consolidated the gains identified in the program reports, although he appeared to have a good appreciation of his risk to others, and described strategies to reduce the risk of incidental contact with children. His strategies were both well developed and realistic.
The risk that, if not subject to a continuing detention order or a supervision order, Mr Stephenson would commit a serious sexual offence: s 7(3)(h)
63 Mr Stephenson statistically falls within a group of offenders with a high risk of re-offending. On the evidence summarised above, I am satisfied that he has made treatment gains, but still has significant treatment needs. Mr Stephenson's paedophilia is entrenched and he requires intensive psychological counselling. He exhibits antisocial and avoidant personality traits which are also relevant to the risk of re-offending.
64 He would benefit also from a community based, medium intensity Sexual Offender Treatment Program. After 11 years in custody, his rehabilitation would also benefit from support in reintegration into the community. He has made considerable progress but is not at the stage where reliance on self-management is a sufficient protection to the community.
65 Taking all of these matters into account, I am satisfied that the risk of Mr Stephenson committing a serious sexual offence of the same kind as his previous offending is high if he were released without supervision.
The need to protect members of the community from the risk of re-offending: s 7(3)(i)
66 Mr Stephenson's offending conduct was against very young and vulnerable victims. His paedophilic deviancy is long standing and entrenched. He continues to have sexual fantasies about children and is at risk of future offending. Despite treatment gains, he still has 'significant treatment needs'.
67 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 others. There is a demonstrated need to protect the members of the community from the risk of re-offending.
68 The critical issue is how best to provide that protection. The risk of further offending is not imminent. The nature of Mr Stephenson's offending proceeds from establishing a relationship with adults who have a young child or children - something which is likely to be prolonged and sophisticated. This is not just because Mr Stephenson would need to win the trust of the parent or carer, but because emotional attachment to the victim is part of his own pathway to offending. He is unlikely to offend impulsively, or against an unknown child, or to abduct a child.
69 In making a decision under s 17, the paramount consideration is the need to ensure adequate protection of the community: s 17(2). In Director of Public Prosecutions (WA) v MJD[No 2] [2015] WASC 346, Mitchell J considered the effect of s 17(2), in light of several authorities which he cited. I respectfully adopt what his Honour said:
That does not mean that there is a predisposition to making a continuing detention order. It cannot be simply assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order. The court should choose the order that is least invasive of the respondent's liberty while ensuring an adequate degree of protection of the community [89].
70 On the evidence, the community would be adequately protected were Mr Stephenson released subject to a supervision order with appropriate conditions. There are two reasons for that conclusion. First, the treatment needs of Mr Stephenson can be met outside of a custodial situation. Second, while he requires supervision on release, with suitable conditions in place the risk of him re-offending is very low.
Any other relevant matter: s 7(3)(j).
71 Although the pornography offences in 2010 are not sexual offences, as defined in the Act, they are relevant to showing Mr Stephenson's entrenched sexual deviancy and the attitudes which supported it.
72 Counsel for Mr Stephenson submitted that he is motivated to manage the risk himself and to receive treatment. Further, he is a reportable offender, subject to the Community Protection (Offender Reporting) Act 2004. Should Mr Stephenson be seen to pose a risk to the sexual safety of one or more children by those administering the Community Protection (Offender Reporting) Act, he may be subject to an application for a protection order under pt 5 of that Act. Protection orders may prohibit the person from associating with specified persons or kinds of specified persons, or engaging in specified behaviour: s 93(1)(a) and (c); a protection order may also require a reportable offender to comply with the orders of the Commissioner of Police as to undergoing medical or other assessment and, if necessary, appropriate treatment: s 94A.That is, there are means available to manage a risk of re-offending without a supervision order, particularly where there is no imminent risk of re-offending and conduct which might lead to offending might be identified early and the risk avoided. Counsel submitted that even though the risk of serious re-offending might be high, should Mr Stephenson not be subject to an order under the Dangerous Sexual Offenders Act, the risk is not unacceptable because it can be managed without the serious curtailment of liberty that arises under a supervision order.
73 The evidence does not permit a meaningful comparison of the effectiveness of an order available under the Community Protection (Offender Reporting) Act, and the regime under the Dangerous Sexual Offenders Act. On the evidence, I cannot be satisfied that the obligations on a reportable offender, including those which might be imposed under a protection order, are sufficient to ensure the adequate protection of the community. I note that in Director of Public Prosecutions (WA) v Wesley [No 2] [2015] WASC 168, Heenan J said:
It is enough to say that I am satisfied that the two pieces of legislation, while overlapping in effect to some degree, are directed to differing priorities and that no conclusion could be reached that the obligations under theCPOR Act [Community Protection (Offender Reporting) Act]are a sufficient or adequate substitute for terms and conditions which might be imposed under a typical supervision order, notwithstanding that there may be similarities [56].
74 At [76], his Honour further commented that the degree of supervision and monitoring under the Community Protection (Offender Reporting) Act 'is not of the same intensity nor does it involve the resources of similarly qualified personnel, as the requirements for supervision under supervision orders made under s 18 of the DSO Act involving scrutiny and monitoring by Community Corrections officers'. I would follow the approach of Heenan J.
Conclusion on serious danger to the community
75 By s 7(1) and (2), before finding that Mr Stephenson is a serious danger to the community, I must be satisfied to a high degree of probability that there is an unacceptable risk that, if he were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.
76 I have set out my findings on the factors identified in s 7(3). On those findings, I am satisfied to the required standard that:
1. the risk of further offending arises from Mr Stephenson's paedophilia, which has led him to offend in the past;
2. without further treatment for his paedophilia and supervision of his conduct, the risk of Mr Stephenson committing a further sexual offence is high;
3. should Mr Stephenson re-offend, the offence would most likely be similar to his previous offending, including indecent dealings with or sexual penetration of a very young victim;
4. the risk is not imminent, in the sense that any offence is likely to follow a long and sophisticated process of grooming.
77 I have carefully considered counsel's submission on the alternative means to manage the risk of further offending. But after considering the nature of the risk and the likelihood of it being realised I am satisfied that the risk is unacceptable. I am so satisfied, taking into account the serious consequences of an order for Mr Stephenson during the period of the order, and despite the fact that his risk of re-offending might be moderated by other means.
Should Mr Stephenson be detained indefinitely or released subject to conditions
78 Having determined that Mr Stephenson is a serious danger to the community, the court must make either an indefinite detention order or a supervision order. It should choose the option under s 17 which is least invasive or destructive of his right to be at liberty. At the same time it must ensure an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235, and Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14] - [15] (Hall J).
79 Counsel for the applicant submitted that this is a borderline case. The evidence supported a finding that, despite Mr Stephenson's apparent positive response to treatment while in custody, the court should have real concern about his actual progress. In particular, counsel submitted there should be concern about the ability of a supervision order to ensure that Mr Stephenson properly engaged with counselling or treatment for his paedophilia. Having regard to his previous conduct, and his propensity to offend, an order for indefinite detention was required.
80 The evidence supports a finding that Mr Stephenson requires further treatment, and that gains apparently made in treatment programs may not yet be consolidated. But the effect of the evidence is that the risk of further offending can be managed and the community may adequately be protected by treatment in the community, subject to a supervision order.
The length of the supervision order
81 Both psychiatrists agreed that a term of 5 years is desirable. I agree with that assessment.
The conditions of the order
82 I set out below, as an appendix to these reasons, the terms of the order. I have excluded those specifying residence, the details of which will be suppressed. Some of the conditions are required by s 18(1). Section 18(2) provides that a supervision order may contain any other terms that the court thinks appropriate to ensure the adequate protection of the community, or for the rehabilitation or care or treatment of the person subject to the order.
83 Some of the conditions proposed by the applicant are standard conditions, but there are particular terms that require brief comment.
(a) Condition 13: requires the respondent to permit police officers to enter and search his residence or vehicle for the purpose of monitoring compliance with obligations under the order. The condition was opposed as unnecessarily intrusive. It is, in my opinion, properly directed to ensuring the protection of the community and should be imposed.
(b) Condition 21 (proposed): was directed to 'any other criminal offence the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments'. In the circumstances of Mr Stephenson's offending history I am not satisfied that this proposed condition is relevant to protection of the community from further sexual offending, or is directed to his rehabilitation or treatment or care. Should Mr Stephenson be imprisoned for any offence, other than a sexual offence, the period of supervision would be extended by s 24.
(c) Conditions 24, 28 and 29 (proposed): these conditions are directed to the prohibition of the use of illicit drugs, and testing for that use. While the evidence shows that Mr Stephenson used the supply of cannabis to the parents of the child in the 'grooming' leading to the offences in 2004, and used cannabis himself at that time, it does not show that the use of drugs or disinhibition caused by drug use is likely to be a factor in his re-offending. Mr Stephenson has now been in prison for 11 years. He has been drug free when tested during that time. I am not satisfied that the proposed conditions are necessary or directed to the objects of s 18.
(d) Conditions 29, 30, and 31: these conditions group and slightly modify (in condition 30) the proposed conditions 33, 36, and 37. The modification is in condition 30 which now requires disclosure only to persons with children in their care, and where required by a Community Corrections Officer. The reference to domestic relationships has been removed from conditions 29 and 30 because they are prohibited.
(e) Condition 35 (proposed): a condition directed to behaviour likely to entice children in a public place is not relevant to Mr Stephenson's conduct and is unnecessary.
84 Under 18(3)(b), a supervision order may provide that the photograph and locality of Mr Stephenson are not to be published under s 85G of the Community Protection (Offender Reporting) Act 2004. On the evidence, I am satisfied that it is very unlikely that Mr Stephenson would offend against a stranger or someone with whom he has not established a relationship over a considerable period. His risk is adequately addressed by other conditions. The publication of his photograph would not lessen the risk of his re-offending, and is not needed to ensure the adequate protection of the community. The evidence of both psychiatrists was that publication might be detrimental to the rehabilitation of Mr Stephenson, particularly should it jeopardise accommodation arrangements that are suitable for his release into the community. I will include a condition under s 18(3)(b).
Appendix A
The Court, having found pursuant to section 17 and section 7 of the Dangerous Sexual Offenders Act 2006 that the Respondent is a serious danger to the community, orders that the Respondent be the subject of a supervision order pursuant to section 17(1)(b) of the Dangerous Sexual Offenders Act 2006, for a period of 5 years from the date of this order, on the following conditions:
YOU (THE RESPONDENT) must:
1. Take up residence at [suppressed]. Any subsequent change of residential address must be approved in advance by a Community Corrections Officer (CCO);
2. Spend each night at your residential address, or at a different address only if such different address is approved in advance by a CCO;
3. Not leave or remain out of the State of Western Australia without the permission of a CCO and, if so permitted, abide by all conditions of such permission whilst absent from the State;
Reporting to the CCO and supervision by the CCO
4. Report to a CCO at Central West Metropolitan Adult Community Corrections Centre at Level 2, 30 Moore Street, East Perth, WA 6004 within normal business hours on the day of your release from custody under this order, and advise the CCO of your current name and address;
5. Be subject to electronic monitoring under section 19A of the Dangerous Sexual Offenders Act 2006;
6. Be under the supervision of a CCO, and comply with the lawful orders and directions of the CCO, including a direction for the purposes of sections 19A or 19B of the Dangerous Sexual Offenders Act 2006;
7. Report to, and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to your employment commitments, if any;
8. Notify a CCO of any change of your name at least 2 working days before the change is due to happen;
9. Not commence or change voluntary or paid employment without the prior approval of a CCO;
Attendance at programs or treatment
10. Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by the CCO;
11. Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re-offending, as directed by a CCO;
Reporting to WA Police
12. Report to the Officer-in-Charge of the Sex Offender Management Squad (SOMS), Suite 1, 297 Hay Street, East Perth, WA 6004 within 48 hours of your release, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate;
13. If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order, and allow the seizure of any such material that the Police Officer believes to contravene the conditions of the order;
14. When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you;
Disclosure/Exchange of Information
15. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
16. Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any of your associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history;
Restrictions on contact with Victims
17. Have no contact, directly or indirectly, with any of the victims of your sexual offending unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Corrective Services;
18. Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;
19. Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;
Criminal conduct
20. Not commit any sexual offence, as defined in the Evidence Act 1906 section 36A;
21. Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220, or s 557K Criminal Code 1913 (WA);
22. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
Medications/Mental Health
- 23. Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by a CCO;
24. Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment or programs to the Department of Corrective Services;
Prevention of high-risk situations
25. Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO;
26. Have no contact with any child under the age of 16 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
a) the contact is authorised in advance by a CCO and such contact is supervised at all times by an adult approved in advance by the CCO; or
b) the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction and another adult is present;
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication);
27. Where any unsupervised contact with a child under the age of 16 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child;
28. Provide details of any contact with a child under the age of 16 years both to a CCO and to the Police on the next occasion you report to that person or agency;
29. Report immediately to a CCO the formation of any romantic, sexual or otherwise intimate relationship by you with a person who has a child or children under the age of 16 years in their care either full time or part time;
30. If required by the CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a romantic, sexual or otherwise intimate relationship and who has a child or children under the age of 16 years in their care either full time or part time, which disclosure can be confirmed by a CCO or a Police Officer;
31. Not form any domestic relationship with a person who has a child or children under the age of 16 years in their care either full time or part time;
32. Not conduct any computer searches for, not collect in either electronic or permanent form, images of children, whether indecent or not;
33. Have no contact with, membership of, or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
Publication of photograph and locality
34. The photograph and locality of Mr Stephenson are not to be published under s 85G of the Community Protection (Offender Reporting) Act 2004.
I have received a copy of this order. I have had explained to me and understand the effect of this Order and what may happen if I contravene it.
Signed by the Respondent _____________________________
- Andrew Peter Stephenson
Name and address: _____________________________
_____________________________
Date: _____________________________
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