Director of Public Prosecutions for Western Australia v Williams [No 7] - [2011] WASC 128

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- WILLIAMS [No 7] [2011] WASC 128

CORAM: EM HEENAN J

HEARD: 7 APRIL 2011

DELIVERED : 7 APRIL 2011

PUBLISHED : 13 MAY 2011

FILE NO/S: MCS 23 of 2006

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
DEXTER CHARLES WILLIAMS
Respondent

Catchwords:

Criminal law - Dangerous sex offenders - Conditional supervision order - Terms and conditions

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA)
Dangerous Sexual Offenders Act 2005 (WA), s 17(1)(b), s 20, s 29, s 33(2)(b)

Result:

Conditional supervision order

Category: B

Representation:

Counsel:

Applicant: Mr P D Yovich
Respondent: Ms F R Veltman

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: Aboriginal Legal Service (WA)

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

Nil

EM HEENAN J: This is a continuation of the hearing which began before me on 19 January 2011 and which, on that day, was adjourned for further information to be provided to the court in accordance with directions which I then made. As set out in my reasons on 19 January 2011, this is an application by the Director of Public Prosecutions pursuant to s 29 and s 31 of the Dangerous Sexual Offenders Act 2005 (WA) by which the Director is moving for an order that the detention of the respondent, Dexter Charles Williams, under a continuing detention order made by the Honourable McKechnie J on 5 October 2007, as expressly not rescinded by Hasluck J on 16 December 2008, and again not rescinded by Hall J on 15 January 2010, be reviewed as soon as practicable after 14 January 2011 under the provisions of the statute.
The history of the proceedings leading to a declaration being made for the detention of Williams under the Dangerous Sexual Offenders Act and his subsequent review are set out in earlier decisions of this court. I mentioned those in my reasons of 19 January 2011, but I should mention the reviews conducted by Blaxell J on 11 July 2006, followed by a decision of McKechnie J on 26 April 2007, the decision of the Court of Appeal on 22 August 2007, a further decision of McKechnie J on 5 October 2007 and, as I have already mentioned, a decision of Hasluck J on 16 December 2008, and the decision of Hall J on 15 January 2010.
For the purposes of this review, there has been prepared for the court a comprehensive series of materials involving assessment of the respondent, Mr Williams, psychiatric reports, and other associated reports, all of which need to be considered in conjunction with materials which were before the court on earlier occasions.
The more recent material is contained in a series of documents which have been marked exhibits 1 and 2 respectively in these proceedings. Exhibit 1 includes an individual management plan prepared by the Department of Corrective Services in May 2010; a psychiatric report of Dr Hall dated 5 January 2011; an Adult Community Corrections community supervision assessment report by a senior Community Corrections officer of 7 January 2011; a structured release plan by the acting superintendent and by the case manager co‑ordinator of the Albany regional prison also dated 7 January 2011; and a dangerous sex offender treatment progress report by Dr Capel, a forensic psychologist, dated 10 January 2011. Also included and considered by the court in exhibit 2 is a further Adult Community Corrections community supervision assessment report dated 25 March 2011; an addendum to that report dated 29 March 2011; a dangerous sex offender addendum report by Dr Capel of 23 March 2011; and a statement by a police sergeant of the Great Southern Family Protection Unit dated 5 August 2011.
I think it is sufficient for me at the moment to refer to the most recent material which has been prepared as a result of the directions given in January.
I should preface my introduction of these materials by confirming the conclusions which I expressed in my reasons in January that the materials indicate that, on the basis of the assessments which have been conducted, there is reason to continue supervision of Mr Williams under the legislation on the basis that he may constitute a danger to the community if released without restraint but, on the materials available in January, the indications were that a programme for supervised release subject to suitable conditions would be acceptable and would provide a sufficient protection for the community if matched by a series of conditions and orders imposing strict controls and supervisions on the offender. In January that potential was not able to be explored further because there had been no detailed investigation of potential areas or places for accommodation. The orders which I then made were directed to require that such an investigation be undertaken and the results reported to the court. The material to which I am about to refer addresses these aspects of the matter.
In the community supervision report of 25 March 2011 there are detailed discussions of proposed arrangements. The conclusion is that the department has been able to source suitable accommodation for Mr Williams and, in addition to this, a range of transitional support has been put in place to support him in the event that he were to be released from custody. The report emphasises that Mr Williams' determination to abstain from alcohol in the community has, of course, been untested, and it is a matter of concern that he had stopped attending the prison‑based Alcoholics Anonymous meetings. It is recognised that there is a risk of reoffending if he should relapse into alcohol use, and a series of conditions and obligations has been designed to reduce, as far as possible the risk, that he will relapse into alcohol abuse.
This report recommends that a number of conditions be imposed upon the offender under a supervised release order. These include:
(1)standard conditions that he report to a Community Corrections officer at the place and within the time stated in the order and advise the officer of his current name and address;
(2)that he report to and receive visits from the Community Corrections officer as directed by the court;
(3)that he notify a Community Corrections officer at every change of his name, place of residence or place of employment at least two days before the change occurs;
(4)that he remain under the supervision of a Community Corrections officer;
(5)that he should not leave or stay out of the State of Western Australia without the permission of a Community Corrections officer; and
(6)that he not commit a sexual offence as defined in the Evidence Act 1906 (WA) s 36A during the period of the order.
There are a series of proposed additional conditions. Firstly, in relation to residence, that he take up residence only in an approved residence and reside continuously at that address, or at a different address, only if approved in advance by a Community Corrections officer, and that he should not leave or remain out of the state without the permission of a Community Corrections officer.
Next, there is a series of conditions recommending that he should report regularly to a Community Corrections officer, and remain under the supervision of a Community Corrections officer.
Next, there is a group of conditions requiring him to consult and engage with any psychiatrist, psychologist, mentor, support service or other person nominated by the Community Corrections officer for programmes of education or treatment or guidance.
Next, there is a series of proposed conditions, that he should report regularly to the police within 48 hours of release and thereafter regularly. Then a series of conditions for the disclosure and exchange of information; and next, a series of conditions that he have no contact directly or indirectly with the victims of his past sexual offending unless such conduct is constructed in accordance with a grievance procedure made through or approved by the Victim‑Offender Mediation Unit of the Department of Corrective Services.
Next, there is a series of proposed conditions, that he not engage in criminal conduct, particularly sexual offences. The next series of conditions relates to the imposition of a curfew for the first four weeks of the order as proposed, and then for a further 12 months of the order with detailed provisions listed for curfew.
Next, there is a series of conditions that he should not associate with any person known by him to have committed a sexual offence unless authorised in advance by the Community Corrections officer, and a series of other orders and conditions to prevent high‑risk situations.
In the addendum to that report there is direct attention given to a proposed location at which the offender would reside and which would be available from 7 April onwards. It is sufficient for me to say that the Community Corrections officer endorses the proposed accommodation.
In the third of the reports in exhibit 2, a report by a counselling psychologist, there is an introduction and background, and the conclusion is that strategies for ensuring that Williams is able to re‑enter the community with the least amount of disruption and stress are required in order to support his reintegration and to assist in the management of potential risk factors. In Mr Williams' case, there are limited options for support from family and friends, and it is likely that he will require significant support from community agencies during a lengthy transitional stage. Community exposure would make his successful reintegration significantly more difficult to achieve and failure to successfully reintegrate could significantly increase his risk of offending, hence the endorsement of the programmes and need for engagement in assessments to which the report refers.
Next, there is a report from the sergeant in a country area of the assessment of the risk in the local community and an outline of the manner in which such offenders are managed. This report includes a recommendation that the address should not be disclosed, and I have received an application for a suppression order relating to the proposed address or any means of identifying that address in order to avoid any risk of possible vigilante action which may interfere with, or render, his placement at an address untenable, and also to ensure that there is the greatest opportunity for the programmes which have been designed and the conditions which are to be imposed to succeed. I will for that reason accept and accede to the proposed suppression order.
The court will order and direct that the publication of any of the following information be suppressed; first the street address of any place of which the respondent is to reside pursuant to the conditions of his continuing supervision order dated 7 April 2011; and, second, any information which may lead to such an address becoming known to the public.
Now, satisfied as I am of the need for a continuing supervision order, attention must turn to the content of the terms of the order. I have been presented with a minute of proposed conditions of continuing supervision order prepared by the Director, which contains revisions to implement all the recommendations in the reports to which I have already made reference, and which incorporates standard orders and conditions under the Act in these circumstances. I will not read all the terms of the proposed order, but it will be appended to these reasons. The first deals with an obligation to take up residence at a place approved by the court, and I approve the address which has been proposed.
The second set of conditions involves a series of obligations to report to a Community Corrections officer and to undergo continuing supervision by a Community Corrections officer, and I approve those terms.
The next group of conditions requires attendances at a series of programs or treatments, including programs or treatments recommended by or to be conducted by any psychiatrists, psychologist, mentor, support service or support person nominated by the Community Corrections officer including meetings of Alcoholics Anonymous.
Next, there is a group of conditions requiring regular and frequent reporting to WA Police officers. Next, there is a series of obligations relating to the disclosure and exchange of information, allowing the exchange of information between persons and agencies, including the office of Director of Public Prosecutions, involved in the implementation and supervision of the proposed order, including confidential information and an obligation to allow the Community Corrections office, WA Police and other persons or agencies approved by the Community Corrections office to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including Mr Williams' offending history.
Then there is a series of proposed terms relating to restriction on contact with victims to implement the recommendations which I have referred to in the reports. Next, there is a series of obligations reinforcing the fact that Mr Williams must avoid any form of criminal conduct and that not only would criminal conduct constitute an offence, but it would constitute a breach of the order justifying immediate apprehension and revocation. Included in these conditions is an obligation not to possess, consume or use any prohibited drugs or substances including but not limited to cannabis.
Next, there is a series of curfew obligations again reflecting the particular recommendations in the reports which I have already summarised, a series of curfew obligations of a strict kind for the first 28 days of the order, and then a series of obligations slightly less strict for the ensuing balance of the first 12 months of the order. Then a series of obligations as to the need to present himself for inspection during the hours of curfew by police or Community Corrections officers supervising the curfew.
Then there is a series of orders and conditions designed to prevent high‑risk situations, which include an obligation not to be in possession of, use or be under the influence of alcohol, not to remain in the presence of a person affected by or consuming a prohibited drug or alcohol, to attend for and submit to urinalysis or other testing for alcohol or prohibited drugs as directed by a Community Corrections officer or a police officer including random testing, not to enter licensed premises; not to have contact with any child under the age of 17 years whether in person, in writing, by telephone or by electronic means unless the contact is authorised in advance by a Community Corrections officer and is supervised at all times by an adult approved in advance by the Community Corrections officer. If any unsupervised conduct with a child under the age of 17 occurs because it was initiated by the child, Williams must withdraw immediately from the presence of the child and provide full details of any contact with a child under the age of 17 years both to the Community Corrections officer and to the police on the next reporting occasion. There is a series of other associated orders to avoid high‑risk situations.
Then, as a result of submissions which were made during the course of the hearing this morning, and in response to concerns which I expressed, it is proposed that this order will be subject to periodic review by the court, the first such review to take place as soon as possible after the order has been in force for 12 months and subsequent reviews which are to take place at a time and ordered by the court.
Next, on any review of this order the court may amend the conditions of the order in accordance with s 20 of the Dangerous Sexual Offenders Act including by extending or shortening the term of the order. The order is for a duration of five years, but this clause or condition allows, as I have said, for the period to be extended or shortened during the course of subsequent reviews. Next, for the purpose of the first such review, reports shall be prepared by the Community Corrections officer supervising the order, by a police officer involved in the supervision of the order if any, and by a psychiatrist, to be provided to the court, the applicant and the respondent.
Next, the terms of s 37 to s 39 inclusive of the Dangerous Sexual Offenders Act shall apply with any necessary modifications to any psychiatrist's report prepared for the purpose of the first review of the order and to any other report which the court orders for any subsequent review.
Next, not later than 28 days from the date of this order Mr Williams shall bring before the District Court the child protection prohibition order to which he is subject under the Community Protection (Offender Reporting) Act 2004 (WA) to allow that court to determine the scope and operation of that order so as to ensure that there will be no inconsistency between the obligations in these orders and conditions and that order.
In the circumstances, I am satisfied that under the Act that, in the absence of a supervision order made pursuant to div 2 of the Act, the respondent would be a serious danger to the community. However, upon the reports and the evidence submitted the court is satisfied that adequate protection of the community can be ensured by the release of the respondent subject to the conditions stated in the order which I have been describing.
Therefore, the court will now order that Dexter Charles Williams be subject to a supervision order for a period of five years pursuant to s 17(1)(b) and s 33(2)(b) of the Dangerous Sexual Offenders Act 2006 on the conditions which I have outlined and which are contained in the minute of proposed conditions of continuing supervision order as amended this morning, which will be appended to these reasons for decision.

Terms of continuing supervision order

Residence

1.Take up residence at a place approved by the court in the State of Western Australia and live continuously at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO).
2.Not leave or remain out of the State of Western Australia without the permission of the CCO and, if so permitted, abide by all conditions of such permission whilst absent from the State.

Reporting to a CCO and supervision by a CCO

3. Report to a CCO at Community and Youth Justice within normal business hours no later than 24 hours after his release from custody under this order, and thereupon advise the CCO of his current name and address.
4. Be under the supervision of a CCO, and comply with the requirements of s 76 of the Sentence Administration Act 2003 as if he were an offender for the purposes of that Act.
5.Report to, and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of the respondent.
6.Notify the CCO of any change of his name, place of residence or place of employment at least two days before the change is due to happen.
7.Not commence or change employment without the prior approval of the CCO.

Attendance at programmes or treatment

8.Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO, including attending meetings of Alcoholics Anonymous as directed by a CCO.
9.Attend any programme or course designed to address his offending behaviour or risk of reoffending, in a group or individual capacity, as directed by a CCO, in consultation with any psychiatrist, psychologist or counsellor, and comply with the requirements of all such programme.

Reporting to WA Police

10.Report to a nominated police station within 48 hours of his release from custody and report to the police thereafter as directed pursuant to his obligations under s 24(1) of the Community Protection (Offender Reporting) Act 2004.
11.Comply with all obligations placed upon him under the Community Protection (Offender Reporting) Act 2004.
12.If requested, give to police officers permission to enter and search his residence for the purpose of monitoring his compliance with his obligations under this order or the Community Protection (Offender Reporting) Act 2004.
13.If requested, give police officers monitoring his compliance with his obligations under this order permission to search his person for the purpose of that monitoring.

Disclosure/Exchange of Information

14.Agree to the exchange of information between persons and agencies (including the office of the Director of Public Prosecutions) involved in the implementation and supervision of this order, including confidential information.
15.Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including his offending history.

Restrictions on contact with Victims

16.Have no contact, directly or indirectly, with the victims of his 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.
17.Unless contact with victims is permitted, immediately withdraw physically from any situation or immediate location in which contact is made with any victim of his sexual offending (including being in the immediate presence of any victim).

Criminal conduct

18. Not commit any sexual offence, as defined in the Evidence Act 1906 s 36A.
19.Not commit any other criminal offence the maximum penalty for which includes imprisonment, and which involves violence, threats of violence, or the possession of weapons or offensive instruments.
20.Not commit any offence against s 557K of the Criminal Code 1913.
21.Not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis.

Curfew:

22.For the first 28 days of this order, be subject to a curfew such that he is to remain at and not to leave his approved residential address during such hours as are specified by a CCO, which may be varied from time to time. He may leave the address during such hours only:
(1)obtain urgent medical or dental treatment for himself;
(2)for the purpose of averting or minimising a serious risk of death or injury to himself or another person;
(3)to obey an order issued under a written law (such as a summons) requiring his presence elsewhere;
(4)to go to his place of employment;
(5)for a purpose, and for a duration, approved in advance by a CCO; or
(6)on the order of a CCO or police officer.

23.For the first 12 months of this order, during any period of not more than four weeks when, in the opinion of a CCO, it is necessary to ensure the respondent’s compliance with the terms of this order, be subject to a curfew such that he is to remain at and not to leave his approved residential address during such hours as are specified by a CCO, which may be varied from time to time. He may leave the address during such hours only:

(1)to obtain urgent medical or dental treatment for himself;
(2)for the purpose of averting or minimising a serious risk of death or injury to himself or another person;
(3)to obey an order issued under a written law (such as a summons) requiring his presence elsewhere;
(4)to go to his place of employment;
(5)for a purpose, and for a duration, approved in advance by a CCO; or
(6)on the order of a CCO or police officer.

24.When subject to a curfew under this order:
(1)present himself for inspection at his approved residence by, or speak on the telephone to, a CCO or police officer monitoring his compliance with the curfew;
(2)ensure that all those people present at his residence who may answer the telephone or the door are aware of his obligations; and
(3)request that they assist him to comply with his obligations by alerting him to such attempts to contact him by persons monitoring his compliance with the curfew.

Prevention of high-risk situations

25.Not associate with any person known by him to have committed a sexual offence, unless such association is authorised in advance by a CCO.
26.Not be in possession of, use, or be under the influence of alcohol.
27.Not remain in the presence of a person affected by or consuming a prohibited drug or alcohol.
28.Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drug use as directed by a CCO or by a police officer, including random testing. If necessary, accompany a CCO or police officer to an appropriate location for such testing to take place.
29.Not remain in any place where prohibited drugs or alcohol are being consumed.
30.Not permit alcohol or prohibited drugs to be consumed at your approved place of residence while you are at that place.
31.Not enter licensed premises without the prior approval of a CCO;
32.Have no contact with any child under the age of 17 years, whether such contact is in person, in writing, by telephone or by electronic means, unless the contact is authorised in advance by a CCO and is supervised at all times by an adult approved in advance by the CCO.
33.Where any unsupervised contact with a child under the age of 17 years is initiated by the child, immediately withdraw from the presence of the child.
34.Provide full details of any contact with a child under the age of 17 years to both his CCO and to the police on the next occasion he reports to that person or agency.
35.Not form any domestic relationship with a person who has children under the age of 17 years in their care either full‑time or part‑time;
36.Make full disclosure regarding his past offending and the current order to anyone with whom he begins a relationship, which can be confirmed by a CCO and/or police officer.
37.Co-operate with any assessment required for the purposes of reviewing this order as directed by a CCO, including taking part in any interview with a psychiatrist for the purpose of such an assessment.
The court further orders that:
(a)this order shall be subject to periodic review by the court, the first to take place as soon as possible after this order has been in force for 12months, and subsequent reviews to take place at a time ordered by the court;
(b)on any review of this order, the court may amend the conditions of the order in accordance with s 20 of the Dangerous Sexual Offenders Act 2006, including by extending or shortening the term of the order;
(c)for the purpose of the first such review, reports shall be prepared by the CCO supervising this order, by a police officer involved in the supervision of this order, if any and by a psychiatrist, and shall be provided to the court, the applicant and the respondent;
(d)the terms of s 37 to s 39 inclusive of the Dangerous Sexual Offenders Act 2006 shall apply, with any necessary modifications, to any psychiatrist’s report prepared for the purposes of the first review of this order, and to any other report that the court orders for any subsequent review of this order; and
(e)not later than 28 days from the date of this order, the respondent shall bring before the District Court the Child Protection Prohibition Order to which he is subject under the Community Protection (Offender Reporting) Act 2004 to allow that court to determine the scope and operation of that order.