Director of Public Prosecutions for Western Australia v Wimbridge
[2008] WASC 44
•27 MARCH 2008
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- WIMBRIDGE [2008] WASC 44
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 44 | |
| Case No: | MCS:20/2007 | 17 SEPTEMBER, 27 NOVEMBER 2007, 18 FEBRUARY 2008 | |
| Coram: | JENKINS J | 26/03/08 | |
| 47 | Judgment Part: | 1 of 1 | |
| Result: | The respondent is a serious danger to the community Continuing detention order made | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA MARK BRADLEY WIMBRIDGE |
Catchwords: | Criminal law and procedure Dangerous Sexual Offenders Act 2006 (WA) Application for continuing detention or supervision order Respondent is a serious danger to the community Continuing detention order |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 7(1), s 7(2), s 7(3), s 8, s 17(1), s 17(2), s 18(2) |
Case References: | Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
MARK BRADLEY WIMBRIDGE
The Respondent
Catchwords:
Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for continuing detention or supervision order - Respondent is a serious danger to the community - Continuing detention order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7(1), s 7(2), s 7(3), s 8, s 17(1), s 17(2), s 18(2)
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Result:
The respondent is a serious danger to the community
Continuing detention order made
Category: B
Representation:
Counsel:
Applicant : Mr P D Yovich
The Respondent : Mr D J McKenzie
Solicitors:
Applicant : Director of Public Prosecutions (WA)
The Respondent : Legal Aid (WA)
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206
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1 JENKINS J: This application is made by the Director of Public Prosecutions for Western Australia (DPP) pursuant to the Dangerous Sexual Offenders Act 2006 (WA) s 8 for either a continuing detention order or a supervision order. The DPP has not stated the length of any supervision order which he seeks. His primary application is for a continuing detention order.
The law
2 The Act s 17(1) provides that if a court hearing an application such as this finds that the respondent is a serious danger to the community the court may:
(a) order that the offender be detained in custody for an indefinite period for control, care or treatment; or
(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.
3 Section 7(1) provides that before the court can make a finding that the respondent is a serious danger to the community, it must be satisfied that there is 'an unacceptable risk that, if [the respondent] were not subject to a continuing detention order or a supervision order, the [respondent] would commit a serious sexual offence'.
4 Section 7(2) states that the DPP has the onus of satisfying the court of the matters in s 7(1) and that the court must be satisfied:
(a) by acceptable and cogent evidence; and
(b) to a high degree of probability.
5 I have previously held that the standard of proof in an application such as this is a 'high degree of probability'. The standard of proof to a 'high degree of probability' is higher than the civil standard, being proof on the balance of probabilities, but lower than the criminal standard, being proof beyond reasonable doubt. However, it is a high standard and in determining whether it has been met I take into account that my decision is of considerable importance both to the respondent and to the community.
6 The term 'serious sexual offence' is defined in the Act. It is unnecessary for me to detail that definition or all the offences included within the definition. It is sufficient for me to say that sexual penetration of an adult or child without consent and aggravated indecent assault are
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- serious sexual offences. Indecent assault simpliciter is not a serious sexual offence.
7 The Act s 7(3) states that in deciding whether to find that a person is a serious danger to the community, I must have regard to the following matters:
(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;
(b) any other medical, psychiatric, psychological, or other assessment relating to the person;
(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future;
(d) whether or not there is any pattern of offending behaviour on the part of the person;
(e) any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;
(f) whether or not the person's participation in any rehabilitation program has had a positive effect on the person;
(g) the person's antecedents and criminal record;
(h) the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;
(i) the need to protect members of the community from that risk; and
(j) any other relevant matter.
8 In Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 [68] - [72] Wheeler JA (Le Miere AJA agreeing) held that if a court found that an offender was a serious danger to the community it must make either an order under s 17(1)(a) or (b) for custody or supervision, respectively. A court does not have a discretion not to make an order.
9 Her Honour also considered what was meant in s 7(1) by the words 'unacceptable risk'. Her Honour said:
In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may
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- include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.
10 I now set out my findings in respect to the background of the respondent.
Background of the respondent
11 The respondent was born in Perth on 6 January 1967 and has recently turned 41 years of age. He has two older sisters and there is a 13 year age gap between him and his next eldest sister. There is considerable comment in the evidence concerning the respondent's relationship with his mother. On the one hand it is sometimes said that she was the dominant parent and that she interfered in his life and his relationships. On the other hand it is commented that she was also permissive and she failed to set boundaries for the respondent when he was a child. It is not possible for me to reconcile all these statements. Despite some problematic feelings the respondent has towards his mother, it is said that he felt quite protective of her and avoided hurting her feelings.
12 The respondent also had a problematic relationship with his father, who was often sick with a stress related illness. The relationship between the respondent's parents was also strained and this situation, apparently, frustrated his father who then took his feelings out on the respondent. There was often conflict between them.
13 The respondent attended school in Perth until about the age of 14 years when he left school to obtain work. It is clear from the evidence that he was not a good student and often truanted.
14 Around the same age the respondent had his first sexual encounter with an older girl. In several reports this is referred to as an abusive relationship. However, I know few details of it.
15 On 7 October 1981 the respondent, aged 14, appeared in the District Court in Perth and pleaded guilty to one count of attempted rape. He admitted that on 19 July of the same year he approached the complainant, a 9-year-old girl, who was playing with another small child in suburban
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- Perth. He asked the complainant to play with him in an abandoned house. When they were playing in the house the respondent produced a knife and threatened to stab the complainant if she did not have sex with him. He forced her to the floor, removed her underpants and attempted to have sexual intercourse with her. He was unable to penetrate the complainant and did not persist in his attempt. He also admitted that he then threatened to stab the child, held the knife against her chest and forced her to have oral sex with him. He then left the house.
16 Earlier, on 9 December 1980 the respondent had indecently assaulted a woman by placing his hand on her bottom.
17 The respondent was committed to the care of the Department for Community Welfare until he attained the age of 18 years. There was a recommendation that he be held in strict custody at Riverbank Boys Treatment Centre for 12 months.
18 After the respondent's release from Riverbank he obtained employment. He also returned to live with his family.
19 On 22 March 1985, after work, the respondent, then aged 18, drank some alcohol at a local hotel and later at a friend's house. The respondent planned to drive home but decided that he was too drunk to do so. He left his car on the side of the road and walked to a bus stop. There he saw and spoke to a young woman waiting to catch the bus to work. After a few minutes the respondent offered to drive the complainant into town. This offer was accepted.
20 The respondent then drove the young woman to a deserted area on the pretext of going to visit a friend. Reluctantly, when the respondent got out of the car the complainant did to. As they were walking down a laneway towards a house, the respondent took hold of the complainant and pulled her into a nearby shed. The respondent indecently assaulted the complainant. When she struggled the respondent told her that he had a knife in his pocket and that she would be hurt if she continued resisting. The respondent then had sexual intercourse with the complainant without her consent. The complainant then got up and started looking for her clothes, which the respondent had removed. The respondent then attempted to have anal intercourse with the complainant without her consent and had vaginal intercourse with the complainant, again without her consent. The complainant then got up, went outside and made a complaint to a passer-by.
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21 The respondent pleaded guilty to two counts of rape and one count of attempted sodomy. The sentencing judge described the respondent's conduct as 'appalling and brutal'. On 23 October 1985 the respondent was sentenced to a total of 9 years and 4 months' imprisonment and was ordered to serve a minimum term of 5 years before coming eligible for parole.
22 In August 1985 Dr Paul Skerritt, psychiatrist, assessed the respondent. Dr Skerritt said that no psychiatric diagnosis was applicable to the respondent. He said that the rape may be seen in terms of characteristics of the respondent's personality of thinking impulsively with poor planning and a somewhat introspective approach to relations with other people. Dr Skerritt said that no psychiatric treatment was likely to help the respondent, although it would be highly desirable if some means could be devised to modify the impulses which had led him to his highly maladaptive sexual behaviour before it became more entrenched or antisocial. Dr Skerritt said that he was not aware that such treatment was available in Perth.
23 On 12 December 1989 the respondent was released on a work release order in respect to the above sentence. On 25 April 1990 he was released on parole. This parole was completed on 25 April 1992.
24 On 20 May 1992 the respondent, then aged 25, approached a 41-year-old woman who was walking towards her car which was parked in a city car park at about 10.30 pm. She was about to open her car door when the respondent grabbed her from behind and put his hand over her face covering her eyes. The complainant screamed and then heard the respondent say 'security guard'. He let go of the complainant and ran off.
25 On 27 June 1993 the respondent, then aged 26, made an appointment to see a prostitute. The complainant came to the respondent's house where she undressed. When the complainant asked the respondent for money, he walked into the kitchen and returned holding a knife.
26 He grabbed the complainant by the hair, told her not to do anything stupid or to scream and then forced her onto the floor where he had sexual intercourse with her on a number of occasions, whilst holding the knife. Eventually, the complainant managed to escape and run to the front of the house where she yelled for help. The respondent caught her by the hair, pulled her back into the house and slammed the door.
27 During the course of the incident the complainant's arm was cut by the knife. The respondent performed further acts upon the complainant
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- including an act of oral sex. Following those acts he said to her that he had to think about whether she could go as, in his eyes, she was just a prostitute.
28 Later the respondent apologised to the complainant for his behaviour. She told him she would not make a complaint to the police so long as he let her go and he agreed to do so. The complainant called the police the following morning.
29 On 1 March 1994 the respondent pleaded guilty to one count of deprivation of liberty and five counts of sexual penetration without consent, while armed with a dangerous weapon. He was remanded in custody. On 31 March 1994 the respondent was sentenced to a total of 7 years and 10 months' imprisonment and granted parole eligibility with respect to the offences which were committed on 27 June 1993.
30 On 21 March 1994 the respondent appeared in the District Court and pleaded guilty to one count of deprivation of liberty in respect to the incident on 20 May 1992. On 11 April 1994 the respondent was sentenced to 12 months' imprisonment with eligibility for parole in respect to the deprivation of liberty charge. This sentence was ordered to be served cumulatively on the sentence for the offences which were committed on 27 June 1993. The sentencing judge said that he was not able properly to find that there was any sexual intent in respect to that offence.
31 The respondent was a married man when he committed the offences on 20 May 1992 and 27 June 1993. His son was born at the end of 1993. The offences occurred after the respondent's mother-in-law murdered her son and committed suicide. The respondent had been particularly close to his mother-in-law. On 27 June 1993 the respondent and his wife had argued about his wife's claim that the respondent's mother interfered in their lives. She then left the house and claimed that she was leaving the marriage. The respondent sought help from his father who stated he did not wish to become involved. The respondent reacted by getting drunk, telephoning for a prostitute and, in the course of her visit, committing the offences.
32 A psychological pre-sentence report was prepared for the sentencing proceedings by Denise Cull, psychologist. Ms Cull noted that the respondent described his prior convictions in such a way that minimised or distorted his involvement. The respondent impressed Ms Cull with his degree of eagerness to enter treatment in order to try and better understand
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- his offending behaviour. The respondent also acknowledged that he had a drinking problem and claimed he wanted to stop drinking.
33 Ms Cull administered the Multiphasic Sex Inventory (MSI), a measure of normal and deviant sexual interests and behaviours, and the Clinical Analysis Questionnaire (CAQ), a measure of normal and clinical personality factors. The results of the MSI strongly confirmed the respondent's stated interest in undergoing treatment to control his sexually deviant behaviour. Results of the CAQ described the respondent as quite anxious and depressed. He displayed a high measure of guilt, sensitivity and insecurity. Ms Cull said that the respondent was emotionally stable with no psychotic tendencies. The results of these testing procedures confirmed that the respondent was suitable for inclusion in a Sex Offender Treatment Programme (SOTP).
34 Ms Cull said that the respondent's concern at his behaviour was apparent and he presented as capable of reflecting meaningfully upon his actions, 'thereby gaining tentative insight into some of the issues contributing to his sexual deviance'. Ms Cull said that she believed that the respondent had the capacity to provide 'a meaningful contribution to society following the satisfactory completion of intensive treatment'.
35 On 19 August 1994, another psychologist expressed the opinion that the respondent presented a high risk of re-offending without treatment. She recommended that he be waitlisted for inclusion in the Intensive SOTP at Casuarina Prison.
36 In 1995 the respondent was successfully treated for depression. In 1997 the respondent again became somewhat depressed after the death of his father. He was then in the process of completing the SOTP, having commenced it in September 1996.
37 A report completed in early May 1997 supported the respondent's application for community based work release. It was completed by two psychologists from the Sex Offender Treatment Unit. In respect to the cause of the respondent's sex offending, the authors said that the respondent's
constricted emotional expression in combination with difficulties of self-assertion have resulted in maladaptive ways of coping with life's stresses. Excessive alcohol consumption and to a lesser extent cannabis use were two such strategies. He was also inclined to frequent pubs where raunchy girls were present. Drinking in such environments when in a negative mood state reinforced his inappropriate sexual expression
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- particularly when viewed in the context of his difficulties relating to women.
38 The authors opined that the respondent had made significant treatment gains. They said that the respondent had an acute awareness of the factors associated with his offending and impressed as being quite determined to lead a healthier lifestyle on release from prison. In addition to his improved self-expression and communication skills he was committed to abstaining from alcohol and other substance use. He had also identified more effective ways of coping with stress and in doing so had developed adequate relapse prevention strategies to address potential or previous high risk situations. The authors said that the respondent had 'effected significant personal change' and at that point in time he was deemed, by them, to be 'a low risk of re-offending'.
39 This opinion was repeated by the authors and the manager of the Sex Offenders Branch to the Parole Board on 26 May 1997.
40 On 30 September 1997 the respondent was released on parole which was due to expire on 30 September 1999. On 19 February 1998 the respondent completed a community based SOTP. This was a maintenance programme for men who had completed a treatment programme in custody. The respondent also requested and commenced individual counselling with the sex offender treatment unit about what he felt were unresolved issues impacting on his life. The respondent did not follow through with his counselling after June/July 1998. After his release on parole, the respondent and his wife remained estranged. However, his wife, at times, gave the respondent confusing messages about whether or not she was prepared to reconcile with him. It seems that the respondent obtained employment after his release from custody. Despite this, he returned to the abuse of alcohol.
41 On 5 August 1998 the respondent, then aged 31, drank a great deal of alcohol with an associate. He approached a young woman, clamped his left arm around her throat and put his right arm over her mouth. The woman attempted to call out to her boyfriend. The respondent pulled her towards him and resisted her attempts to remove his arm. The complainant eventually pulled one of the respondent's arms away and screamed for help. The respondent then ran off. He was apprehended by the police in the vicinity.
42 On 1 February 1999 the respondent pleaded guilty to one count of deprivation of liberty and one count of assault. On the same date he was sentenced in the Perth District Court to 23 months' imprisonment. He was
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- made eligible for parole. His offending behaviour also breached his parole order.
43 In a treatment assessment report dated 2 March 1999 the author, a psychologist, reported that the respondent had told him that whilst he denied that his recent offending behaviour had any sexual intent, he acknowledged that the patterns of behaviour that place him in danger of re-offending in a sexual manner had emerged again. He blamed his alcohol consumption and relationship difficulties. He claimed to be very interested in participating in further sex offender treatment. The author noted that whilst the respondent recognised the factors that contributed to his risk of re-offending in a sexual manner, he appeared to be unable to use relapse prevention strategies to cope with the factors. The respondent presented as being at a high risk of re-offending. It was recommended that the respondent participate in a SOTP so that he may learn how to more effectively apply already acquired relapse prevention strategies.
44 The respondent participated in the Pre-Release SOTP which commenced on 17 August 1999 and was due to finish on 24 December 1999. A report completed by two senior programme officers commented favourably on the respondent's participation in the programme, his knowledge and understanding of his offending behaviour and related patterns of behaviour and formulation of relapse prevention strategies.
45 The respondent was released to parole on 29 November 1999 for a period of two years.
46 On 13 May 2000 the respondent, then aged 33, picked up a street prostitute for sex. He drove the complainant to an isolated spot. He placed his arm around the complainant's neck, threatened her and then forced her to perform oral sex on him. Following that offence the respondent told the complainant to get out of the car and made her lie over the bonnet of the car. The respondent then had sexual intercourse with the complainant without her consent. Following the offences, the respondent threatened to kill the complainant if she reported the incident to the authorities.
47 On the afternoon of 16 May 2000 the respondent picked up a prostitute on a street in Perth. He agreed to pay her for sex. He parked his car on the banks of the Swan River and had sex with the complainant on the river bank. The respondent did not have sufficient money to pay the agreed price. After sexual intercourse took place the respondent
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- refused to pay the complainant and, as she was getting dressed, he pushed her into the river to facilitate his getaway.
48 On 15 March 2001 the respondent pleaded guilty to sexual penetration of the complainant without her consent, aggravated by the causing of bodily harm to the complainant. Those offences related to the incident on 16 May 2000. On 26 April 2001 the respondent was sentenced to 4 years 8 months' imprisonment and made eligible for parole.
49 The respondent was found guilty, after trial by jury, of two counts of sexual penetration without consent and one count of threatening to kill the complainant in respect to the incident on 13 May 2000. On 3 September 2003 he was sentenced to 4 years' imprisonment to be served concurrently with the sentences imposed on 26 April 2001. The sentencing judge declined to order that the respondent be eligible for parole. His Honour said:
I have no doubt that unfortunately you are still a very real danger to women in the community and because of your record factors such as punishment, personal deterrence and protection of the community must feature strongly in the sentencing exercise.
I have already mentioned that you have not shown any remorse for your conduct and that you continue to deny that you sexually assaulted the complainant.
50 Ms Claire Lynn, forensic psychologist, prepared a report for the purposes of the sentencing proceedings. In respect to his conduct prior to the offending behaviour, the respondent described to Ms Lynn how he had significant relationship difficulties, chronic bad feelings towards his wife, recommenced alcohol use, attended 'raunchy' shows and accessed sexual services. Ms Lynn said that although on an intellectual level the respondent said he did not blame his wife, he also made comments during the course of her interview with him which externalised responsibility for his behaviour by criticising her attitude at the time. Ms Lynn said:
Although his disclosures suggested that he felt victimised and dominated during this period, his account revealed no insights about how he potentially contributed to his relationship problems and associated distress. Although aware that he was in a high-risk situation and was placing himself at risk, he suggested that he failed to concern himself about this and 'pushed it away' through continued drinking and visiting prostitutes. He claimed to have spoken of this with his counsellor at the time, but records reveal that he denied engaging in such high-risk behaviours when asked.
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51 The respondent described to Ms Lynn a significant history of sexual abuse during childhood and adolescence which he had not previously revealed. This behaviour was with males whereas his previous disclosures had related to abuse by teenage girls. Despite his long periods of incarceration, he estimated having had about 30 sexual partners during his life as a result of extra-marital affairs and visiting prostitutes. He had kept these secret from his wife and suggested to Ms Lynn that keeping secrets comprised his life within his marriage and family. Ms Lynn commented that the records revealed that such characteristics would also seem to have pervaded the respondent's therapeutic relationships.
52 Ms Lynn administered the MSI and the Milton Clinical Multiaxial Inventory-III (MCMI-III), a measure of clinical significant personality variables.
53 Results on the MSI suggested that the respondent acknowledged normal sexual interests and desires, although tended to suppress an interest in sexual deviance. The results revealed that the respondent was motivated for treatment. These results were consistent with past results.
54 In respect to the results of the MCMI-III, the respondent's profile revealed elevations that were consistent with people who are prone to impulsive acting out of antisocial feelings and drug and alcohol dependency. Irresponsible behaviours, self-indulgence, competitiveness and lack of interpersonal sensitivity and commitments in such people may manifest in relationship and family disharmony and legal and occupational problems. Such people may tend to disregard the consequences of their behaviour for themself and others and, therefore, also tend to experience difficulties in learning to conform to mainstream behavioural standards. The author noted that these results seemed consistent with the respondent's verbal disclosures regarding his life, relationships, substance use and court history. Ms Lynn said that despite the respondent having significant insights into relapse prevention, his re-offending tended to suggest difficulties in consistently applying these skills.
55 Ms Lynn said that based on a 'tripartite model of risk that took into account historical factors that were stable and unchanging', the respondent presented a high risk of re-offence in a sexual manner. This was based upon his prior sexual offending, his extra-familial relationship, number of distinct victims and history of general and violent offending. Factors potentially serving to elevate or maintain the risk level included issues of
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- responsibility, prior treatment failures, community supervision breaches, antisocial personality traits and associated behavioural tendencies.
56 On the positive side, Ms Lynn noted that the respondent was willing to engage in further intervention.
57 Prior to June 2005 the respondent, whilst in custody, was found to be in possession of four pornographic videos which he claimed to have only received the day before they were intercepted. Due to the content of one of the videos, a clinical re-assessment was requested. The author of that assessment concluded that as the relevant video only contained approximately 10 minutes, out of many hours of pornography, of violent sexual activity it was not possible for her to conclude that there were definite links connecting the pornography to the respondent's preference for violence.
58 The author noted that on the Static 99 Risk Assessment Method, the respondent's score of eight placed him in the high risk category. The result meant that, based on a sample of sex offenders from Canada and the UK upon which the Static 99 was developed, the respondent had a four in 10 chance of sexual re-offending within a five year period. The report detailed the respondent's previously identified risk factors and treatment needs. In addition, the author said:
[The respondent] generally accepts responsibility for his offending behaviour. He is able to articulate his offence cycle which he explains was typically an inappropriate response to his relationship problems. He would abuse alcohol and use prostitutes until he ran out of money, at which time he would sexually assault them. He believes that he has developed strategies to manage his relationship issues more appropriately in the future and was able to articulate some of these, albeit simplistically. For instance, in the future [the respondent] stated he would go to the gym, go fishing or talk to his sister or counsellor rather than enter his offending cycle. It is clear that he has made some, at least intellectual, treatment gains from the previous programs he has attended. He has also developed awareness of the nature of his past relationships with partners and was able to acknowledge that choosing more appropriate partners is not an exact science.
[The respondent] reported that he has become a more disciplined individual over the past few years, using his newly developed internal resilience to give up smoking and become healthier and fitter. He also stated his intention not to resume drinking alcohol.
59 On 13 July 2006 a report was prepared by two senior clinical intervention officers in the Department of Corrective Services which
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- stated that the respondent was unmotivated to attend a prison based SOTP because he said 'I already know what I need to do … I won't get much out of it'. It was suggested that the respondent be re-assessed for inclusion into the next Medium SOTP. The respondent was scheduled to commence a Medium SOTP on 6 March 2007. However, he was transferred away from the relevant prison and was therefore unable to participate in the programme. On 28 May 2007 a senior forensic consultant with the Department of Corrective Services completed a sex offender risk update report in respect to the respondent. The report summarised the treatment programmes which the respondent had completed since 1997. These were as follows:
|
|
| 29/5/97 |
| 19/2/98 |
| 6/8/98 |
| 14/5/99 |
| 2/7/99 |
| 24/11/99 |
| 4/5/00 |
| 20/12/01 |
| 30/5/02 |
60 The author concluded that the respondent did not appear to be 'able to intervene in his own offence cycle. There is nothing to indicate a reduction in his risk level'.
61 Since the completion of that report, the respondent has completed a Medium SOTP which comprised 60 sessions running over 15 weeks. Each session was approximately three hours and the programme was
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- delivered two days a week with two sessions per day. A report authored by two conditionally registered psychologists and the clinical supervisor of programmes at Acacia Prison stated that the respondent engaged in an appropriate manner in the programme. The authors opined that the respondent appeared to have made a number of treatment gains through the participation in the SOTP. These gains were made in the areas of identification of cognitive distortions, understanding his attitudes and beliefs, recognition of triggers to offending and victim empathy.
62 The authors said that the respondent recognised that his beliefs regarding women were a significant factor in his offending. The respondent acknowledged during the programme that he focussed on the sexual aspect of relationships and had engaged in affairs on numerous occasions. He recognised he was preoccupied about sexual matters when talking with or looking at females. The respondent admitted that at the time of his offending behaviour in 2000 he was sexually frustrated. The respondent was able to identify conflict with his partner as a key trigger for his offending, as well as feelings of loss of control and frustration at being trapped.
63 The authors acknowledged that despite these treatment gains, there remained some concerns regarding the respondent's risk of re-offending. The main concern was the respondent's level of recidivist behaviour. The authors said that if released, gains made in the SOTP could be consolidated by participation in on-going individual counselling. Another concern was the respondent's demonstrated lack of relationship skills and his inability to develop appropriate intimate relationships. The authors opined that a programme aimed at developing relationship skills could assist in this area.
64 During the programme the respondent identified factors that, in his view, drove his pattern of offending. These factors were negative feelings, sexual frustration and low self esteem. He also recognised that relationship difficulties, financial concerns and a limited social network were external factors which acted as triggers for his offending. Again, the identification of these factors is both a positive and a negative sign. It is undoubtedly the first step in a relapse prevention plan to identify risk factors. Another step is to formulate a plan to prevent relapse. The final step must be to be able to put that plan into operation without relapsing. The respondent has not been able to successfully make this final step during his previous release periods.
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65 The respondent identified that going to hotels where he knew that there were female strippers and then driving home past street prostitutes contributed to his offending. He acknowledged using fantasy and masturbations as triggers for increasing his level of sexual arousal. He also acknowledged that these fantasies included previous offending. The respondent understood the use of self talk which had given him 'permission' to offend. For example, prior to past offending he had told himself that no one would find out if he offended or that the victim would be in a position where she could not refuse his demands. The respondent identified several strategies to reduce his risk of offending by seeking counselling for relationship issues, utilising family networks to develop communication skills, avoiding the use of alcohol when his mood was low, avoiding driving near places where prostitutes were known to be and gaining meaningful employment. The authors opined, in a significant understatement, that the respondent would benefit from assistance in developing the strategies he identified.
66 The respondent's sentence expired on 2 September 2007 and since that date he has been kept in custody pursuant to an order made under the Act, pending the determination of this application. His continued detention under the Act enabled him to complete the Medium SOTP and also to obtain medical advice concerning the appropriateness of anti-libidinal treatment to assist him to reduce his risk of re-offending. This latter advice was only given to him after I made various recommendations and directions in respect to it. There was apparently some concern from medical practitioners employed within the Department of Corrective Services that there were ethical problems in providing advice to the respondent about anti-libidinal treatment in the context of these proceedings. That is, that the respondent may agree to take the medication as a means of obtaining his release from custody and not for medical reasons. In the course of hearing this application I have not suggested that the respondent would be forced to undergo such treatment as a condition of his release if it was not medically appropriate or the respondent did not wish to take it. When the Department of Corrective Services failed to comply with the court's first request to provide the respondent with advice and an assessment concerning his suitability for anti-libidinal treatment, I was at a loss to understand how medical practitioners could decline to provide a patient with medical advice which he had expressed a willingness to receive and to perform an assessment which he had indicated that he was prepared to undergo.
67 Eventually, the Department of Corrective Services arranged for the respondent to be seen by two psychiatrists and to be provided with advice
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- in respect to anti-libidinal treatment. The first psychiatrist, Dr Peter Morton, simply stated that he was informed by the respondent that since the issue of the treatment had been raised with him he had 'looked into the therapy' and was 'not keen to have any form of treatment at this stage' because of concerns over the side effects of the treatment.
68 The psychiatrist also advised that there was 'no formalised treatment pathways' for sex offenders. I presume that Dr Morton was talking about treatment with anti-libidinal medication. Dr Morton said that he did not know who would be responsible for monitoring the treatment or what doctor would be responsible for any ongoing care upon release into the community.
69 The second psychiatrist was a Dr Sam Febbo. He saw the respondent after he had been seen by Dr Morton. Dr Febbo saw the respondent as a consequence of my direction that the respondent be assessed 'for his medical and psychiatric suitability for anti-libidinal medications and treatment'. Dr Febbo spoke to Dr Ralph Chapman, the Director, Health Services Directorate of the Department of Corrective Services who requested that he interview the respondent and have a discussion with him in relation to the use of anti-libidinal medications and, in particular, information on the expected response and possible side effects related to the medication. Dr Febbo reviewed the psychiatric reports prepared for this application. The respondent told Dr Febbo that he understood that anti-libidinal medication had been recommended 'by the court'. I have never recommended anti-libidinal medication for the respondent. It had been suggested by the psychiatrists who prepared reports under the Act as a possible form of treatment for the respondent in order to reduce his risk of re-offending. In those circumstances I requested that the respondent be assessed for his suitability for such treatment. I did so after having been told by the respondent's counsel that the respondent was concerned about the potential side effects of the treatment but was prepared to be assessed for the treatment.
70 The respondent told Dr Febbo that he did not want to take the anti-libidinal medication. He was particularly concerned about the possibility of the medication causing weight gain, decreasing his testosterone levels and compromising his level of fitness. The respondent told Dr Febbo that as a teenager he had been overweight and his weight had always been related to his self confidence. He felt that as he was now fit and had lost weight he would not turn to alcohol in an attempt to cope with pressures in his life. The respondent told Dr Febbo that he was reluctant to take medication that would lower his libido as he did not feel
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- that 'his sex drive was particularly high'. The respondent told Dr Febbo that he rarely thought of sex. The respondent told Dr Febbo that in his view his offending behaviour was closely related to issues of self esteem, self confidence, excessive weight, alcohol abuse and dependence. He believed that he had developed a significant insight into his offending behaviour through the sex offenders programme and therapy with a clinical psychologist.
71 In a letter to me the respondent repeated these themes.
72 As I told counsel during the course of the hearing, I will not use the respondent's disinclination to take the anti-libidinal medication in a manner that is adverse to him. I accept that the substantial side effects of such medication are a valid reason why the respondent is not prepared to undergo such treatment. In those circumstances, I would never order a person to undergo such treatment.
73 However, as the DPP submitted, some of the comments by the respondent to Dr Febbo may be relevant in my assessment of this application. I take into account the respondent's comments about what he sees as the causes of his offending. It is of concern that other psychiatrists and psychologists have identified a link between the respondent's libido or sexual drive, his interest in sex and his offending behaviour. The fact that the respondent denied such a link to Dr Febbo and denied that he currently has a significant interest in sex is of concern. This seems to me to indicate a lack of insight into the causes of his offending and a stance of denial in respect to one of his risk factors.
74 Another area of concern is the respondent's comment to Dr Febbo that in respect to anti-libidinal treatment, 'everything I found out is not good'. He seems to place very little importance on the efficacy of the anti-libidinal treatment as a means of avoiding future offending. On the other hand, he, somewhat naively, said he believed that he had reduced his risk of re-offending by losing weight and getting fit. This belief appears to defy the fact that, as Dr Wojnarowska said, fit and healthy people usually have a higher sexual drive.
75 The respondent had blood tests to ascertain his hormone levels. The results have not been disclosed to the court.
76 On 26 November 2007 the respondent was dealt with for a prison offence of possessing a pornographic DVD. He received a loss of privileges for seven days as a penalty. The facts of the offence are not clear. It seems that the respondent lawfully received a 'Hustler' magazine.
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- It was found to include a pornographic DVD, which had probably been inserted by the publisher or distributor. Possession of the DVD is an offence under the prison rules. It is not clear whether or not the respondent was aware of the nature of the DVD and whether or not he deliberately failed to disclose its presence in the magazine to the prison authorities.
77 The respondent has been involved in the Holyoake Prison to Parole Programme (PPP) since 2001. He has been actively engaging in the PPP since early 2007. As of November 2007 he had participated in eight one-to-one sessions.
78 The respondent's counsellor, prepared a report in respect to his participation in the PPP. He repeated what others have said concerning the respondent's co-operative participation in the counselling. He also said that the respondent had asked to participate in the Holyoake's Men's Programme when released and had said that he was more than willing to have it as a condition of any release into the community. The respondent was also agreeable to continuing one-to-one counselling with the author of the report.
79 The author of the report gave details about the Men's Programme. He said that it is a structured programme of 12 group sessions which aim to create an awareness of problems associated with substance misuse, in particular the effects on the family unit in terms of anger and domestic violence, relationship breakdown and the consequences of offending behaviour. Failure to attend the programme can be communicated to a supervising community justice officer.
80 If released from custody, the respondent intends to reside with one of his sisters. The Department of Corrective Services conducted an accommodation assessment of his sister's home. A senior community corrections officer visited the home and met the respondent's sister and brother-in-law, who reside at the home. He also spoke to the respondent's other sister who was visiting at the time. Both sisters explained to the officer that due to family issues they had not had contact with the respondent for some time. However, these issues had recently been resolved and they were willing to offer their support to the respondent. The sisters reported that they had explained to the respondent that if he re-offended then they would have no further contact with him.
81 Both sisters have some cannabis related convictions. I do not know the seriousness of these convictions but they did not cause the officer to
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- determine that accommodation with the sisters was inappropriate. The officer said that the respondent's sister and brother-in-law have a level of insight into the circumstances of the respondent's sexual offending and were able to explain their understanding of his triggers and high risk situations, including relationship problems with his deceased mother and former wife, gaining weight, becoming withdrawn and drinking alcohol. They agreed to implement a no tolerance approach to alcohol within their home and to support the respondent's desire to remain abstinent from alcohol use. The respondent's sister advised that she had discussed with the respondent open communication with her and her husband, to which he had agreed. She had also discussed with the respondent her expectations that whilst residing with her the respondent would gain employment, not offend and not consume alcohol. The respondent's family are prepared to work with Community Justice Services (CJS) in regard to the respondent's transition into the community. They expressed their willingness to convey to CJS any concerns they had in respect to the respondent.
82 Police personnel undertook an assessment of the location of the respondent's proposed residence. The records of the Australian National Child Offender Register (ANCOR) showed no registered ANCOR offenders living within close proximity to the address or current supervised offenders living in the same street. However, concerns were raised by the police in regards to the location of the home opposite a reserve which the police said was regularly used by women exercising their dogs. There is also a popular hotel situated within a short distance and positioned on the access route to the accommodation from a main highway.
83 As mentioned previously, the respondent tendered, by consent, his letter mainly dealing with his reasons for not wishing to take anti-libidinal medication. He did not give evidence on the application.
Matters referred to in the Act s 7(3)
84 I now turn to consider the matters referred to in the Act s 7(3) which I must have regard to in deciding whether or not the respondent is a serious danger to the community.
Psychiatric reports under the Act s 37
85 At a preliminary hearing of this application the court ordered that the respondent undergo examination by two psychiatrists, Dr Mark Hall and Dr Gosia Wojnarowska. Both psychiatrists gave evidence at the hearing
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- of the application and were cross-examined. Their reports were tendered in evidence.
86 Dr Hall is a consultant psychiatrist who has previously been employed as a forensic psychiatrist with the State Forensic Mental Health Service. He has experience in risk assessment, having undertaken specific training in risk assessment, and has provided numerous reports to the previously named Parole Board and the Mentally Impaired Accused Review Board. Dr Hall completed a 30 page report after interviewing the respondent at prison for five hours and 10 minutes, accessing the evidence in this matter and meeting with three CJS officers for approximately one hour.
87 Dr Hall noted that the respondent has a history of panic attacks and that he had approximately 10 attacks during his life. However, the respondent had no other formal history of psychiatric diagnoses or treatment. He has no history of deliberate self-harm or any suicide attempts.
88 The respondent admitted to Dr Hall that he had used alcohol heavily since his early adolescence. He used to regularly binge drink in order to get drunk. He acknowledged that this had been a problem in his past and that he had relapsed into alcohol use when previously in the community. Although a heavy cannabis user in his early life, the respondent denied having smoked any cannabis for the last 12 to 15 years.
89 The respondent described to Dr Hall that there had been little love or affection during his childhood. He described to Dr Hall a lack of boundaries, guidance or discipline whilst growing up. He said that his father was unable to discipline him and did not have a voice in the house. His mother was overprotective but would let him get away with anything.
90 He described to Dr Hall an episode of sexual abuse when he was aged 9 by two females aged approximately 15 and 16. He described another such incident at the age of 12.
91 The respondent told Dr Hall that his first sexual relationship was, at the age of 13, with a girl who was two years older than him. This was at about the same time the respondent attempted to have sexual intercourse with a 9-year-old girl without her consent.
92 The respondent told Dr Hall that at the age of 16 he began a two year relationship with a female of a similar age. He described it as a 'controlling thing'. He said that she tried to control his behaviour and at
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- the same time he would sulk until she agreed to have sex with him. He admitted to cheating on his partner and also going to 'raunchy shows' after work instead of going home as requested by his partner. It was in 1985, at the end of this period, that the respondent committed serious sexual offences.
93 The respondent said that after his release from custody in 1990 he resumed his prior lifestyle of 'casual sex, pubs and prostitutes'. In 1991 he met his wife whilst at the same time he was seeing another woman who worked as a 'raunchy dancer'. There were problems in the relationship due to what the respondent considered was his wife's 'controlling' behaviour. There was also much stress put on the relationship by the tragic murder suicide of his wife's mother and brother. He acknowledged assaulting his wife during their relationship.
94 The respondent told Dr Hall that he last saw his wife, daughter and son in December 2000. The respondent said that he intended to reapply for access to his children once he got out of prison, but he did not know where they were. He was still unhappy with their mother and told Dr Hall that there was 'bad blood' between them. I note that given the children's ages, it will be up to them as to whether they agree to see the respondent in the future.
95 The respondent told Dr Hall that his father had died of cancer in 1997 and his mother died of cancer in May 2007. He had not spoken to either of his sisters for some period prior to their mother's death. There has apparently been some reconciliation since that time.
96 Dr Hall asked the respondent about his anger management. Dr Hall came to the opinion that the respondent appeared to be monitoring the acceptability of his responses. This approach cast doubt on the reliability of his account. For example, whilst the respondent admitted to experiencing anger during his marriage he stressed that it was because of what his partner did. Dr Hall was also of the view that the respondent was vague and hesitant, appearing to censor his responses, to questions about his remorse and guilt for past acts.
97 The respondent gave Dr Hall a positive opinion of himself as being a 'decent, talented and loving person'. He also described himself as a 'hard worker and musically talented'.
98 Despite being a self-confessed 'hard worker' he acknowledged having had an irresponsible attitude towards work such as not being bothered to attend because he did not enjoy it and using alcohol as an
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- excuse not to attend. He also went to work hung over or under the influence of cannabis.
99 Dr Hall also opined that the respondent had appeared to be screening his answers when asked about cruelty to animals in the past.
100 The respondent described to Dr Hall a history of being impulsive and having a need for immediate gratification. Lying, was another topic which Dr Hall felt the respondent was uncomfortable with. The respondent acknowledged lying during relationships to facilitate his cheating, lying in order to avoid work and lying in order to commit offences. However, he denied that it was in his nature to lie.
101 Dr Hall noted that at the age of 12 the respondent had taken his teacher's purse and gone to the Royal Show with the proceeds.
102 The respondent admitted to Dr Hall that during his teenage years he was 'quite addicted to sex'. The respondent denied any violent sexual fantasies. He said that over the last four years in prison his sex drive had gradually reduced and was now almost extinguished. He said that he had trained himself in that manner.
103 Dr Hall recounted the respondent's previous violent and sexual offending. He noted that the longest time the respondent had been free in the community was for four years from 1989 - 1993. During that time the respondent was convicted of several offences although not imprisoned. He also committed serious sexual offences in April 1992, less than one month after his parole period expired. Dr Hall concluded that the respondent had had a generally poor response to supervision. He had been paroled in 1990 for two years but within one week of his parole he was before the court on alcohol and cannabis related offences. This is consistent with his admission to Dr Hall that he had resumed his old lifestyle upon release from custody.
104 Dr Hall expressed the view that the respondent displayed a tendency to 'minimise and justify past violent acts'. In respect to his sexual offending, the respondent tended to blame alcohol and relationship difficulties. The relationship difficulties, in the respondent's view, were largely his wife's fault.
105 Dr Hall noted that the respondent had intellectual insight into what he described as high risk situations of relationship conflict, alcohol use and increasing sexual preoccupation. Despite these insights, Dr Hall commented that it had been consistently observed by the treating
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- authorities that the respondent could not utilise relapse prevention strategies in the community.
106 Dr Hall said that the respondent was a 'fit looking middle aged man'. He was apparently well-liked by the prison staff with whom Dr Hall saw him interact. He noted that the respondent's speech was normal. The respondent exhibited a 'shallow affect' in that when making emotive statements there was no significant outward expression of emotion. Dr Hall expressed the view that the respondent had made 'much personal effort over the years trying to understand why he offended'. However, Dr Hall commented that the respondent's 'insight was intellectual and relatively poor with respect to issues such as displacement of aggression and dominance needs and the origin and nature of the sexual motives in his offending'.
107 Dr Hall noted that whilst there had been an initial degree of therapeutic optimism about the respondent's potential to benefit from treatment, this appeared to have been replaced later by a recognition that the respondent had consistently failed to effectively employ relapse prevention strategies upon release.
108 Dr Hall said that he had spoken to the CJS officers and obtained information about the respondent's future plans from them. In addition to his plans to reside with his family, he noted that the respondent had said that he would be able to attain work either with his sister in a cleaning business or with a friend in the building industry. However, his express preference was to obtain work in the mining industry out of Perth. Dr Hall noted that it was his opinion as well as the opinion of the CJS officers that it would be inappropriate for the respondent to be employed in the mines.
109 The respondent expressed the view to Dr Hall that he would be strong enough to say 'no' to alcohol in the future; that he intended to continue his one-to-one counselling with the counsellor from Holyoake; and that he would join a gym and continue to exercise. Dr Hall formed the opinion that the respondent was motivated and intent on abstaining from alcohol use, 'despite his lack of appreciation for the practical barriers involved'.
110 It is of concern to me that Dr Hall noted that the respondent 'had no apparent awareness of the potential for his relationship with his sister, who is significantly older than him, to mirror his relationships with his
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- mother and ex-wife'. To these problematic relationships with females I would add that with his girlfriend at the age of 16.
111 When Dr Hall suggested an alcohol craving suppressant such as Naltrexone, he noted that the respondent 'appeared to be somewhat reluctant'. Dr Hall observed that compliance with oral treatment could not be guaranteed in any case. When a Naltrexone implant was suggested to the respondent by a CJS officer, he declined on the basis of its cost. During the course of the hearing his counsel advised that the respondent would be prepared to consider a Naltrexone implant. The evidence before me is that the cost would probably be prohibitive for the respondent. There is no evidence before me that the authorities would be prepared to supply it free of charge. Further, there is no evidence before me as to possible side effects of such an implant.
112 Dr Hall also discussed anti-libidinal hormonal medication with the respondent. The respondent said that he did not like taking drugs and would not be prepared to take anti-libidinal medication. This refusal was ameliorated by some extent by the respondent's counsel who indicated during the hearing of the application that his client would be prepared to receive further advice and assessment in respect to the treatment.
113 Dr Hall made a psychiatric diagnosis based on the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th ed Text Revision (DSM IV-TR). Dr Hall made no diagnosis under Axis I being Clinical Disorders. He made a diagnosis under Axis II, Personality Disorders, of an Antisocial Personality Disorder. Dr Hall made no diagnosis under Axis III, General Medical Conditions. Under Axis IV, Psychological and Environmental Problems, the doctor diagnosed problems of being a victim of childhood sexual abuse and being separated from his children. Under Axis V, Global Assessment of Functioning, Dr Hall gave a score of 85 over the last six months. This indicated minimal symptoms and no significant impairment of functioning.
114 Dr Hall regarded that the respondent met the diagnostic criteria for Antisocial Personality Disorder by way of his pervasive pattern of disregard for, and violation of, the rights of others. This was indicated by the respondent's failure to conform to social norms with respect to lawful behaviours as well as deceitfulness, manifested by infidelity, offending, impulsivity, aggressiveness and irresponsibility. There was evidence of conduct disorder before the age of 15. Dr Hall said:
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- [The respondent's] early development is characterised by lack of boundaries and discipline and there is early evidence of irresponsibility, an external locus of responsibility, callousness and a lack of empathy. The quality of the relationship with his mother implies a poor attachment and was characterised by intrusive and controlling behaviours on her part in relation to his adult life and relationships and his own ambivalent feelings towards her. [The respondent] was unable to express his emotions over the years and it is of note that he remains unable to articulate appropriate negative feelings towards his mother.
115 Dr Hall refers to a number of matters impacting on the respondent's risk of committing serious sexual offences in the future. Dr Hall said:
[The respondent's] early sexual victimisation and precocious sexual activity has induced a sexual preoccupation as a coping mechanism and a tendency to objectify women. His sexual preoccupation as a coping mechanism along with his inability to tolerate distressing feelings has led to a situation whereby sex ameliorates pain for [the respondent]. This powerful association has been very reinforcing. When combined with his displaced aggression to females and the assertion of dominance over women related to unresolved ambivalent feelings towards his mother and partners, the result is a propensity for sexual aggression, which in itself has been reinforced as a soothing mechanism by repetition.
- Dr Hall further said:
Unfortunately [the respondent] has little insight as yet into the interplay of these factors, nor into the displacement of unexpressed aggression towards women in his domestic life. The implications for this relate firstly to his aversion to control by females and his lack of insight into the same and in the context of his plan to reside with his older sister and the potential for transference of feelings related to his mother. The other significant implication is that he remains at high risk of sexual thoughts arising if he becomes stressed.
117 Dr Hall mentioned previously identified high risk situations such as visiting prostitutes. Dr Hall noted that high risk behaviours, such as relationship conflict, alcohol consumption and sexual preoccupation have
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- been relatively constant throughout the respondent's life and they do not represent a 'specific antecedent to offending'. Dr Hall further noted that the respondent's offending appeared to date to have been unaffected by either punishment or therapeutic approaches designed to achieve an understanding of his offending. This is undoubtedly a significant basis for the DPP's application; that is, that despite the respondent's good intentions and the views of the therapists who have been reassured by the respondent's response to therapy, the respondent has committed serious sexual offences on each occasion of the four occasions since he became an adult on which he has been released into the community.
118 Dr Hall completed a risk assessment using a number of different assessment tools. It is unnecessary to go into the methodologies of each of these tools as, except to the extent that I mention, they were not subject to criticism.
119 Dr Hall acknowledged that it is not possible to predict recidivism with unequivocal accuracy. However, in his view, the use of risk assessment tools can improve predictive accuracy, particular when used in combination with clinical judgment. He divided the assessment tools into two principal categories; actuarial instruments and structured professional judgment.
120 In the case of actuarial instruments, the scores obtained on individuals are related to mass statistical reference data. The actuarial instruments used by Dr Hall were the Static-99 and the Hare Psycopathy Check List - Revised (PCL-R). Structured professional judgment, in contrast, uses both static and dynamic risk factors. The structured clinical guides used by Dr Hall were the Historical, Clinical, Risk-20 (HCR-20) and the Risk for Sexual Violence Protocol (RSVP). The HCR-20 includes variables that capture relevant past, present and future considerations. The RSVP is a 22 item guide (including the PCL-R score) for assessing risk of sexual violence.
121 In respect to the Static-99, the respondent achieved a score which placed him in the high risk category for re-offending sexually. Individuals with this risk category have a 40% chance of recidivism within five years. Dr Hall said that subsequent studies which looked at the effect of age upon recidivism would suggest that at the respondent's current age, individuals in that risk category would have a recidivism risk of between 12.5 - 38.9% over five years. Dr Hall said that the respondent would be at the higher end of that range due to other factors.
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122 The respondent's PCL-R score was in the high range suggesting that he exhibited many of the features of psycopathy, as defined by the PCL-R. Dr Hall said that high scores on the PCL-R had some predictive value for sexual recidivism, but less than for violent or general offending. Dr Hall said:
However, the combination of psycopathy with sexual deviance (such as in [the respondent's] case a possible interest in sexual violence) has been demonstrated to be a powerful predictor of sexual recidivism.
123 Dr Hall said that the respondent's PCL-R score is of note in the context of the consistent finding of perceived good response to early treatment but an inability to prevent recidivism. Dr Hall said that studies had consistently found that offenders with good treatment ratings had actually been found to have high PCL-R scores. The combination of a good treatment rating and a high PCL-R score was most strongly predictive of serious offending.
124 Dr Hall said that the application of the HCR-20 to the respondent suggested that he is at high risk of future violence. Historical factors included his history of previous violence, young age at first violence, his history of relationship instability and substance abuse problems, his score on the PCL-R, his history of early maladjustment, his personality disorder and a history of prior supervision failure. Current clinical factors of concern included the respondent's lack of insight, in that he does not perceive himself to be violent and has no insight into the sexual motives in his offending. The respondent also exhibited a tendency to shift responsibility for his offending to alcohol and relationship conflict as well as a tendency to minimise and justify violence. In addition, the respondent has exhibited impulsivity and has demonstrated unresponsiveness to treatment.
125 The application of the RSVP to the respondent indicated several risk factors in the areas of sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability.
126 Dr Hall said that the RSVP can guide professional judgment of the type of offending scenarios that may occur for an offender. He said that if the respondent were to offend, the kind of sexual violence he would commit would most likely be vaginal penetration with or without oral sex. The likely victims would be prostitutes, but this could extend to any female stranger. The likely motivation for the offending would be relief of dysphoria and the discharge of displaced aggression and dominance needs. The likely psychological harm to victims would be severe
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- traumatisation. Physical harm could include bruising, health consequences and genital trauma. There is a chance that sexual violence may escalate to physical harm as indicated by the respondent's past use of weapons and threats to obtain compliance and silence. Dr Hall said that with respect to imminence, the respondent had tended to offend towards the end of parole periods. With respect to warning signs, Dr Hall repeated his earlier expressed view that the behaviour considered by the respondent to indicate a risk of relapse had actually occurred fairly frequently. The point at which the respondent would offend is not able to be predicted. However, Dr Hall acknowledged that warning signs included relationship problems, sexual preoccupation such as the use of pornography, visiting prostitutes or attending 'raunchy shows'. In relation to frequency and duration, if the respondent were to offend once there is the potential for it to occur repeatedly given that sexual gratification and the success of the discharge of displaced aggression have the capacity to reinforce his behaviour. Dr Hall opined that there is nothing to suggest that the respondent's risk is time limited. Overall, Dr Hall said that there is a high likelihood of the respondent being sexually violent at some point in the future.
127 In respect to risk management, Dr Hall began with considering issues surrounding supervision and monitoring. He said that there would be no way to reliably monitor the warning signs of impending offending as monitoring would be reliant upon the level of disclosure by the respondent. This disclosure would need to be highly honest but, in Dr Hall's view, would in fact be likely to be 'unreliable'. He said that an internet ban to limit access to pornography would be useful. The respondent should also be prohibited from going to locations where the services of prostitutes could be obtained, either on the streets or in brothels. He should also be ordered not to use the services of prostitutes. A GPS electronic monitoring bracelet might be a deterrent to the respondent travelling to known prostitute soliciting areas or remote locations. However, I am aware that the CJS does not have such an electronic tracking system.
128 Dr Hall then considered issues in respect to treatment. He said that the respondent should be required to have ongoing individual counselling aimed at improving insight into his sexual motives and interests, mobilising his personal supports and assisting him to cope with stressful situations. Anger management and substance use courses could be considered. However, Dr Hall noted that these have already been undertaken and although the respondent has obtained intellectual insights he has been unable to apply them in the community. Similarly,
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- counselling or group programmes aimed at violent offenders with the emphasis on victim empathy and taking personal responsibility for actions could be considered but may be of questionable value to the respondent. Assistance to find appropriate employment may, in Dr Hall's view, benefit the respondent from the point of view of stress management. He may also benefit from personal mentoring and guidance.
129 Dr Hall then considered the use of medication such as Acamprosate or Naltrexone to assist in the prevention of cravings for alcohol. He also considered that anti-libidinal treatment could be of assistance. Whilst hormonal anti-libidinal treatment such as Androcur, a testosterone antagonist, would have the 'most profound impact on his risk of recidivism', anti-depressants may also help to reduce sexual drive and therefore the risk of re-offence.
130 In summary, Dr Hall reiterated that in his opinion the respondent was 'at high risk of committing a serious sexual offence if not subject to a continuing detention or supervision order'. Dr Hall outlined conditions which could be placed on a supervision order, if the court was minded to make such an order.
131 Dr Wojnarowska had access to the evidence tendered in this application. She also met with CJS officers for one and a half hours. Dr Wojnarowska interviewed the respondent on two separate occasions, each for a duration of three hours.
132 After summarising the respondent's offending history, Dr Wojnarowska considered a number of factors relating to the respondent's cycle of offending. These included the frequency of his offending either whilst on bail or after having completed SOTPs. Dr Wojnarowska referred to the respondent's choice of victims as being women with whom he had not been acquainted. She commented that prior to his offending, the respondent appeared to be sexually aroused and the release of his sexual tension appeared to be the motivating factor in his offending. Dr Wojnarowska observed that although grooming was not used by the respondent extensively during his crimes he was capable of presenting himself to his victims as harmless. She noted that the respondent's sexual offences had always been associated with a degree of violence. She expressed the view that despite the respondent's denial, the use of violence had not only been instrumental in achieving the respondent's goals but also to further stimulate him sexually.
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133 In respect to escalation of his offending, Dr Wojnarowska noted that the respondent's longest conviction free period was between 1989 and 1992. Otherwise he had spent most of his adult and adolescent life in custody. He had offended in 1981 on two occasions, 1985 on one occasion, 1992 on one occasion, 1993 on one occasion, 1998 on one occasion and in 2000 on two occasions within the space of three days. Thus, she said, it is not unreasonable to conclude that the frequency of offending had been escalating prior to his last imprisonment. It does not detract from this opinion for me to note that the respondent offended once in 1980 and once in 1981, rather than twice in 1981, and that his offending in 1980, 1992 and 1998 did not include what are now defined as serious sexual offences.
134 In respect to other factors associated with offending, Dr Wojnarowska noted that the respondent claimed that alcohol was the main factor in his offending but that despite undergoing extensive counselling whilst in prison he continued to drink in the community, thus exposing himself to the disinhibiting effects of alcohol. There was also evidence that the respondent offended when he was experiencing marital difficulty.
135 Dr Wojnarowska then summarised the respondent's personal and family history. In respect to relationship issues, Dr Wojnarowska noted that whilst the respondent has had long term relationships, he was 'deficient in intimacy'. This, was Dr Wojnarowska's conclusion given the respondent's acknowledgement that he engaged in sex outside of and during each of his relationships. He described his relationships as 'rocky' with his partners being domineering and not paying enough attention to him and his needs. Dr Wojnarowska also concluded that the respondent has difficulty in asserting himself appropriately. This escalated his tension which he then released in an inappropriate manner by aggression or drunkenness. The respondent also has a deviant sexual interest in females meaning that he is more aroused by violent and illicit sex than by consensual sex. On the positive side, Dr Wojnarowska noted that given his behaviour on a number of occasions after offending, there was proof that while the respondent acted impulsively to release sexual tensions in a deviant way he was also capable of understanding that his behaviour was wrong.
136 Dr Wojnarowska said that the respondent expressed no emotions when she questioned him about his children. She observed that he has never seen his daughter and has not seen his son since 2000. Even prior to that time he had limited contact with his son. Dr Wojnarowska's view
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- was that the respondent did not appear to take his responsibilities as a parent seriously but when questioned he stated that he would seek access to his children when he was released.
137 Dr Wojnarowska recorded that the respondent had no psychiatric history other than panic attacks and sleeping problems in 2004. He had taken anti-depressant medications for these problems with good effect.
138 In respect to the respondent's current functioning, Dr Wojnarowska noted the various programmes that the respondent had participated in. The respondent reported to the doctor that the most important changes which he had initiated since being in custody were improving his level of fitness, ceasing smoking and eliminating his craving for alcohol. The respondent also reported changes in his thinking pattern. For example, in the past he had thought of his victims as 'only a prostitute' and said 'now it's different'. He was not able to elaborate to Dr Wojnarowska on this topic.
139 Dr Wojnarowska concluded that the respondent had made a conscious effort to change his lifestyle whilst in custody. He had lost weight and increased his fitness by daily exercise. He had also stopped smoking. According to the respondent, these changes had significantly decreased his sex drive. Dr Wojnarowska found this to be implausible as the medical evidence is that the sexual drive is likely to increase in a person who is healthy and fit.
140 Dr Wojnarowska said that the respondent had some insight that aggressive tendencies and disinhibition were much more prominent while under the influence of alcohol. However, she noted that whilst the respondent received extensive counselling in relation to his alcohol abuse both in the community and in the prison, this had not prevented him from recommencing drinking almost immediately when he was released into the community and then offending.
141 Dr Wojnarowska was also of the view that the respondent has a good intellectual understanding of his offending behaviour. She said:
His answers in relation to his offending have been very well rehearsed and there is no doubt that he reached his limits in depth of knowledge about the triggers and the cycles. [The respondent] believes that his attitude towards women originated in sexual abuse which he experienced as a young child. Additionally, his mother's intrusiveness and tendency to control him and to control his father further developed his hostility and need for revenge towards females. Those underlying issues have been identified at least 10 years ago when he first received intensive treatment and as such have
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- been addressed both in subsequent treatment programmes and individual counselling. Again the author needs to emphasise that despite all the interventions [the respondent] continued to offend. Interestingly the longest three year period of non-offending occurred at the time when at the age of 23 he was released from Fremantle Prison where he did not participate in any treatment programmes.
142 The respondent identified to Dr Wojnarowska strategies that he would employ to prevent further offending. These included not drinking alcohol, working, avoiding associating with offenders and better communication with friends and partners. He told Dr Wojnarowska that those strategies would work, when they had not in the past, because he was now fit and had a greater degree of control over his mind and body. Dr Wojnarowska's concern remained that there was no evidence that having such a pro-social and anti-crime stance had prevented the respondent from re-offending in the past.
143 As for the respondent's mental state, the respondent presented to Dr Wojnarowska as a well-groomed, athletically built, middle aged man. He had a pleasant manner, was co-operative and maintained good eye contact. There was no evidence of depressive cognition, anxiety or psychotic symptoms. The respondent appeared to Dr Wojnarowska to be of normal intelligence with good expressive and comprehension skills.
144 Dr Wojnarowska made a psychiatric diagnosis based on the DSM IV-TR. However, her diagnosis was somewhat different to that of Dr Hall. Dr Wojnarowska made a diagnosis under Axis I of paraphilia and alcohol dependence. Dr Hall did not make a diagnosis under Axis I. Under Axis II Dr Wojnarowska made a diagnosis of Anti-social Personality Disorder; as did Dr Hall. Under Axis III Dr Wojnarowska did not diagnose any general medical conditions. Under Axis IV Dr Wojnarowska noted adverse life events being childhood sexual abuse in early childhood. Dr Wojnarowska's view was that under Axis V the respondent would score 80 out of 100 on his Global Assessment of Functioning.
145 Dr Wojnarowska noted that the respondent did not have any firm plans in relation to his work when released. His view was that he had never had a problem in obtaining employment. He intended either to live with his niece or his sister.
146 Dr Wojnarowska completed a risk assessment in three parts. In pt 1, the introduction, she said that she had attempted to estimate the
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- respondent's risk of re-offending as closely as possible by answering the following questions:
1. What are the factors that in the respondent's case predict recidivism;
2. How does the respondent rate on the relevant factors; and
3. Given the combination of these factors, what is the probability that the respondent will commit a particular type of offence over a given time period?
147 Dr Wojnarowska referred to a study by Hanson and Bussie're 1996 - 1998 in which the authors opined that offenders most likely to re-offend sexually are those who have an established pattern of sexual deviancy, fail to comply with treatment and have a history of general criminology. In their study the overall sexual offence recidivism rate was 13.4% during the four to five year average follow up period. The rate of recidivism increased with longer follow up periods for example, to 15% at five years and 22% at 10 years.
148 Dr Wojnarowska used the definition of sexual deviance in the DSM IV and on this basis concluded that there was little doubt that given the respondent's history of offending since late childhood, he had developed a pattern of violent sexual offending which can be perceived as sexual deviancy. In Dr Wojnarowska's view, the respondent's promiscuity and lifelong involvement with prostitutes supports the notion that he gets sexually aroused by violent sex. The presence of antisocial orientation in the respondent's case was supported by his PCL-R score. Other important factors in recidivism were failing to comply with treatment and general criminality. Dr Wojnarowska noted that the respondent had been compliant with treatment but had failed to implement the recommendations once released into the community. She also noted that he had a history of general criminology. Thus, the respondent scored positive on four out of four criteria identified as relevant to his risk of re-offending.
149 In pt 2 of her risk assessment, Dr Wojnarowska described the instruments she had used in it. These were divided into two principal categories; Actuarial Instruments and Structured Clinical Guides. The actuarial instrument used in her assessment was the Static-99 and the PCL-R. In respect to structured clinical guides, Dr Wojnarowska chose to use the RSVP.
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150 In pt 3 of her risk assessment, Dr Wojnarowska interpreted the results from the use of the instruments. The respondent's Static-99 score of seven placed him in the high risk category. Specifically, Dr Wojnarowska said that he is in the top 12% compared to other adult male sexual offenders. This suggests that the respondent has a four out of 10 chance of sexual re-offending within a five year period.
151 On the PCL-R the respondent scored 28. The areas that the respondent attracted two points per item (the highest score) included the need for stimulation, being prone to boredom, lack of remorse, shallow effect, poor behavioural controls, promiscuous sexual behaviour, early behavioural problems, impulsivity, irresponsibility, juvenile delinquency and criminal versatility.
152 Dr Wojnarowska referred to eight domains of the RSVP, each of which contain various factors influencing an offender's risk of recidivism. In the first domain, relating to a person's history of sexual violence, the respondent scored high in the domain of chronicity of sexual violence. On diversity of sexual violence he scored low and his rating of escalation of sexual violence was medium. He scored relatively low on psychological coercion but very high on physical coercion in sexual violence. Dr Wojnarowska opined that scoring high on chronicity would increase the respondent's likelihood of re-offending. The high score on physical coercion and escalation caused her to predict that his future re-offending was likely to be quite violent in nature. She said that these factors were so stable that there was little space for improvement during treatment.
153 In the second domain reflecting aspects of psychological adjustment, the respondent's scored relatively low on attitudes that support or condone sexual violence and low on extreme minimisation or denial of sexual violence.
154 In the third domain which reflects problems with self-awareness, the respondent appeared to be in the medium range.
155 In the fourth domain which reflects problems with stresses and coping, the respondent had a history of being adversely experienced by life's stresses.
156 In the fifth domain problems resulting from child abuse continued to be an important factor. Dr Wojnarowska said that the respondent still quoted his early life experiences as one of the main reasons for his attitude
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- towards women. These attitudes have not shifted 'his emotional sphere' despite 'good intellectual insight gained in counselling'.
157 In the sixth domain which reflects mental disorder, Dr Wojnarowska repeated her view that the respondent scored high on sexual deviance and on psychopathic personality, as well as on problems with substance abuse. However, he does not have a major mental illness and has not experienced suicidal ideations in the past.
158 In respect to the seventh domain relating to problems with other people and fulfilling social roles, the respondent scored high in problems with intimate and non-intimate relationships.
159 In respect to the last domain being manageability, Dr Wojnarowska noted that despite not experiencing problems with developing plans, the respondent had problems with adhering to them and implementing the gains of treatment. He is also likely to have problems with supervision.
160 In respect to risk scenarios, Dr Wojnarowska said that the respondent is likely to commit rape on a female stranger in an isolate place. His motivation would be to release tension through a violent, sexual act. This would be most likely preceded by violent fantasies or viewing pornography. The respondent is most likely to feel tense and frustrated facing life's adversities. The most common would be conflict with his partner. He is likely to respond to the conflict by drinking alcohol which would increase his level of sexual arousal and disinhibit him. The respondent is then likely to find a victim on the streets or through an escort agency. The harm to the victims is likely to be severe and predominantly psychological. There is a chance that given his high PCL-R score his sexual violence might also escalate to serious or life threatening.
161 The respondent is aware of the warning signs that may signal re-offending. However, those warning signs do not have to persist for long as the respondent is 'very impulsive'. He is likely to be non-compliant with his supervision. There is also the possibility that he will not be truthful about his current functioning despite superficial compliance. Dr Wojnarowska concluded that the risk of the respondent's re-offending is high and chronic. It depended on the level of his sexual drive which, based on his history, appeared to be very high. In Dr Wojnarowska's view the respondent, who is now aged 41, has at least another 10 to 15 years before his sexual drive diminishes significantly. She said that the imminence of his offending is difficult to predict but
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- based on history, the respondent is likely to re-offend within a year of being released. The management of the respondent's risk of re-offending may, in Dr Wojnarowska's view, prove difficult due to factors such as choice of the victims (random) and lack of extensive grooming.
162 In summary, Dr Wojnarowska concluded that the respondent's risk of re-offending is in the high category. She noted that his intellectual insight has not prevented him from re-offending in the past. In Dr Wojnarowska's opinion, the respondent's denial of experiencing violent sexual fantasies is unconvincing. She said that despite the respondent's claims that alcohol and relationship difficulties have been the main triggers of offending, it appears to her that this is not the case in each situation. She concluded by saying that given these matters it is her opinion that 'it is imperative that release to the community should only be under strict guidelines and well-defined conditions'.
163 Dr Wojnarowska recommends that the following strategies may assist in managing the respondent's risk of re-offending:
1. Individual supportive counselling with a very experienced forensic psychologist;
2. Hormonal treatment that would aim at decreasing the respondent's libido or anti-depressant medication to achieve the same result;
3. Abstaining from alcohol with the assistance of an appropriate agency such as Next Step;
4. Night time curfew;
5. At least twice weekly reporting to a community Corrections officer;
6. Supervision of the respondent's access to the Internet;
7. Disclosure of the respondent's sexual offending to potential partners or close friends so that they may report any signs of immediate relapse; and
8. Other strategies to assist with supervision such as electronic monitoring or supervision by ANCOR.
164 I found both the psychiatrists to be credible and their evidence to be highly relevant. To his credit the respondent co-operated when the psychiatrists examined him. However, the psychiatrists each gave cogent reasons why they formed their respective opinions that he was at a high risk of committing a serious sexual offence in the future if released to the community. Despite the respondent's ability to give the psychiatrists
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- reasons for his offending, to express 'pro-social' and 'anti-crime' attitudes and to articulate relapse strategies, I accept their respective opinions that the respondent has only an intellectual insight into the reasons for his offending, does not understand the relationship between his sexual drive, his displaced aggression, need for dominance and his offending. Further, he does not appreciate the significant challenges he will face once released into the community if he is not to re-offend.
Any other medical, psychiatric, psychological or other assessment relating to the respondent
165 I have already summarised the other assessments that have been conducted in respect to the respondent. I note that in the past some experts have believed that the respondent's risk of re-offending has been reduced by his response to SOTP and other courses. However, each time such a view has been expressed prior to the respondent's release to the community, the respondent has re-offended within a relatively short time of his release by committing further serious sexual offences or offending against women. Other than such hopeful views, the assessments are in agreement in respect to the causes of the respondent's serious sexual offending.
Information indicating whether or not the respondent has a propensity to commit serious sexual offences in the future
166 I assume that the legislature has used the word 'propensity' in its ordinary meaning. That is, to have an inclination or tendency to do something. Before proceeding to evaluate this issue, the only other qualification I would put on the word 'propensity' is that I view it as a question of whether the respondent has an objective inclination or tendency to commit serious sexual offences in the future, rather than a subjective inclination to do so. I make this qualification for two reasons. First, the word 'inclination' is sometimes used in the sense that a person has a liking for or an affection for certain conduct. Secondly, this distinction between an objective leaning to commit serious sexual offences as opposed to a subjective inclination to do so is relevant in this case.
167 I accept that the respondent has a genuine desire not to commit serious sexual offences in the future and does not intend to do so. However, his history, his lack of understanding as to how his sexual drive, aggression and need for dominance motivates his offending and his superficial relapse prevention strategies cause me to conclude that the respondent still has an objective propensity to commit serious sexual
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- offences in the future. The respondent's current attitude and good intentions are to his credit. The fact that history has proven that the respondent is not capable of maintaining those attitudes and good intentions once released into the community is a relevant matter for me also to take into account.
Whether or not there is any pattern of offending behaviour on the part of the respondent
168 A pattern of offending behaviour on the part of the respondent is disclosed by his repeated commission of serious sexual offences against adult female prostitutes who he has engaged for the purposes of sex. The pattern includes prior abuse of alcohol and, sometimes, the viewing of 'raunchy shows'. The pattern also includes an immediate release of tension after the commission of the offence and, sometimes, an attempt at rapprochement with the victim, without any real understanding of the seriousness of his conduct.
Any efforts by the respondent to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation programme
169 I have previously detailed the attempts by the respondent to address the causes of his offending behaviour, in particularly by completing SOTPs and other courses, whilst in custody. Those efforts have been successful to the extent that the respondent is able to identify some of the causes of his offending behaviour and has been able to formulate relapse prevention strategies. The efforts have been unsuccessful to the extent that the respondent still externalises the causes of his offending behaviour, for example by blaming it on alcohol, childhood sexual abuse and his mother's and partners' behaviour towards him. He still does not acknowledge that on each occasion he has offended as an adult he has made a conscious decision to put his desire for sexual release and desire for dominance over the rights and interests of his victims. Consequently, he underestimates the need for him to control his aggression, his sexual drive, his impulsivity and other negative personality traits if he is not to offend in the future.
170 I am also concerned that when the respondent is now asked why he thinks he will not re-offend when he has when released previously, his response is that he has now better self-esteem due to the fact that he is fit, has lost weight and has managed to stop smoking. As Dr Wojnarowska has pointed out, apart from the self discipline of ceasing to smoke, these are matters which would not normally be regarded as likely to reduce
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- sexual drive. Whilst the respondent should not be penalised for taking what could only be described as very positive steps to achieve these goals, I am concerned that the respondent is convinced, without good reason, that these are matters that are likely to reduce his risk of re-offending. A person with more insight, would be less confident.
Whether or not the respondent's participation in any programme has had a positive effect on him
171 I have already dealt with some of these issues under the previous heading. None of what I have said should be understood as demeaning the efforts or results of the respondent's participation in any rehabilitation programme. I am sure that the respondent has gained some insight into his offending and that he believes that he will not offend in the future. My concern, is that his confidence in this respect reflects the shallowness of his understanding of the complexity of the reasons why he offends, an unwarranted externalisation of the causes of his offending and an impoverished understanding of the efforts required to prevent re-offending in the future.
The respondent's antecedents and criminal record
172 I have detailed the respondent's antecedents and criminal record earlier in this judgment. It is obvious that his criminal record is an important matter to take into account when assessing the likelihood of him committing serious sexual offences in the future. I note, what others have commented on, that apart from his serious sexual offences, his offending tends to be of a minor nature.
The risk that if the respondent were not subject to a continuing detention order or a supervision order he would commit a serious sexual offence
173 The respondent acknowledges that there is an unacceptable risk that if he were not subject to a continuing detention order or a supervision order that he would commit a serious sexual offence.
174 Based on the evidence, I have no doubt that if the respondent is not subject to a continuing detention order, or a supervision order there is a risk he will commit a serious sexual offence in the future. His history of offending, in particular his commission of serious sexual offences on five separate occasions over 20 years and other offending against women in the same period, and his inability to remain sexual offence free when previously released into the community establishes the existence of that risk. The issue, under the Act, is whether the risk is unacceptable.
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The need to protect members of the community from that risk
175 It is self evident that, given the power to do so, there is a need to protect the community from the risk that the respondent will commit further serious sexual offences. Both reporting psychiatrists have opined that significant psychological harm is likely to be caused to the respondent's future victims and there is also the likelihood of the infliction of some physical harm and the possibility of an escalation of the severity of physical harm from that which the respondent has caused to his past victims. It is troubling that Dr Wojnarowska is of the view that the respondent is likely to re-offend within a year of being released.
The potential consequence of an order under the Act for the respondent
176 The respondent accepts that an order should be made under the Act. He does not accept that it is necessary to make a detention order. He submits that his risk of re-offending can be successfully managed by appropriate supervision in the community. I will address that issue in due course.
177 Any order made under the Act will have a significant impact on the respondent. The order which would have the most impact would be an order for his continuing detention. I accept that this would have effectively delay and reduce the possibility of the respondent developing any meaningful relationship with his children. However, I have doubts whether it is important to him to develop such a relationship given that he has not made any attempts to contact his children during his current lengthy period incarceration and given that he has never had a close relationship with either of his children.
The type of sexual offence which the respondent is likely to commit
178 I have already referred to the psychiatrists' views about the type of sexual offence which the respondent is likely to commit in the future. Given his past criminal history, the likelihood is that he will commit serious sexual offences against adult women who are not known to him.
Conclusion: whether there is an unacceptable risk that if the respondent were not subject to a continuing detention order or a supervision order, he will commit a serious sexual offence
179 I have taken into account all the evidence and all the comments that I have made in respect to it. The evidence includes the opinions and evidence of Dr Hall and Dr Wojnarowska. I have also considered and taken into account the inferences that can be drawn from the respondent's
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- past offending. I have considered those matters in light of the standard of proof, the statutory provisions and the Court of Appeal's dicta in Williams' case. I conclude that the DPP has proven that there is an unacceptable risk that if the respondent is not subject to a continuing detention order or a supervision order, he will commit a serious sexual offence. Thus, I find that the respondent is a serious danger to the community.
Continuing detention order or supervision order
180 The Act, s17(2) states:
In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
181 That is the only guidance given by the legislature as to the considerations which a court should take into account when deciding whether to make a continuing detention or a supervision order. Obviously, the court should also take into account the nature of any conditions which can be placed on a supervision order so as to ensure the adequate protection of the community and the rehabilitation of the offender: the Act, s18(2).
182 I also accept that in all but the most intractable cases, it is contrary to the community's interest and to its ultimate protection to keep potential offenders in custody until they are too infirm to offend or die. In Williams [58]Wheeler JA gave some reasons which support such a conclusion. At some point a decision must be made to release a person who is a serious risk of danger to the community, albeit subject to strict conditions, to ascertain whether apparent gains that have be made in the rehabilitative process are real or imaginary. It is unfortunate that this can only be measured by giving such persons some freedom in the community and by, thus, exposing the community to some risk.
183 The DPP submits that according to WilliamsI must ask whether I am able to conclude that a supervision order would adequately protect the community? If I am not able to answer that question positively then I must make a continuing detention order.
184 The respondent submits that given the length of time he has spent in custody, the rehabilitation programs he has undergone, the insight he has gained into the causes of his offending, the relapse prevention strategies he has developed, his increased fitness and greater self discipline and the conditions which can be placed on his release a supervision order would adequately protect the community.
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185 Having considered all the evidence I am of the opinion, that if the respondent was released into the community without any or only minimal supervision his risk of committing a serious sexual offence within a relatively short period would be high. I have come to this view based on a consideration of all of the evidence which caused me to conclude that the respondent was a serious sexual offender. Thus, the question is whether there are other conditions of supervision which could be practically placed on the release of the respondent which would reduce the risk of offending so as to adequately protect the community?
186 The respondent submits that his risk of sexual re-offending would be significantly reduced if he were to receive a Naltrexone implant to reduce his alcohol craving and substance abuse counselling in respect to alcohol use. He also submits that his release into the community could be conditioned upon him taking an antidepressant to relieve stress, which is another of the causes of his offending. Further, that he could be required to participate in counselling to address the sexual and other motives for his offending which have not been successfully addressed in the SOTPs that the respondent has completed.
187 It is appropriate that I individually address each of the matters raised by the respondent, although I must answer the ultimate question by taking into account all relevant matters.
188 The respondent has now been in custody since 17 May 2000; a period of nearly eight years. This is a very lengthy period and there is evidence to suggest that during that period the respondent has taken steps to rehabilitate himself. On the other hand since 2005 the respondent has been found to be in possession of pornographic videos on two occasions with the most recent occasion being in late 2007. These offences are of concern given that the experts are of the view that sexual frustration and exposure to sexually explicit material have been precursors to the respondent's sexual offending. More importantly, the respondent has previously spent significant periods in prison (four years between 1985 and 1989 and three and a half years between 1994 and 1997) only to re-offend when released. Lastly, the lengthy period that the respondent has spent in custody does not seem to have persuaded either of the reporting psychiatrists that the respondent's risk of committing serious sexual offences can be easily managed in the community.
189 In respect to SOTPs and other courses that the respondent has completed, I note that whilst it is to his credit that he has completed these courses, the psychiatrists have given cogent reasons as to why they have
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- not significantly reduced the respondent's risk of committing further sexual offences if he was released into the community.
190 The same may be said of the relapse prevention strategies which the respondent has developed. As with the rehabilitation programmes that the respondent has completed I observe, as others have, that they have not prevented the respondent from relapsing and committing serious sexual offences in the past after his release from substantial periods in custody.
191 The respondent's greater fitness and improved self discipline are matters that go the respondent's credit. However, as I have already commented, I accept Dr Wojnarowska's concern that it is contrary to accepted views to regard such matters as tending to decrease sexual drive and thus to reduce the respondent's risk of re-offending. Further, it is naïve of the respondent for him to believe that they will.
192 As to the viability of a Naltrexone implant, the respondent's counsel told me that the respondent was prepared to take it orally or to have an implant. Oral administration of the drug would not adequately protect the community given that the authorities would be reliant upon the respondent's self reports to monitor whether he was taking the drug.
193 A series of Naltrexone implants may be a good means of helping to reduce the risk of sexual recidivism by reducing the respondent's desire for alcohol. I observe that the respondent has never been assessed for his suitability for the drug and neither has an in depth assessment been done as to the drug's suitability to treat the respondent's precise problems. In this respect I note that it is not suggested that the respondent is an alcoholic but rather that he uses alcohol to release stress and this in turn disinhibits him from committing serious sexual offences. However, as the respondent has admitted to using self talk to given himself permission to offend, he may have used alcohol in the same way. That is, that he has over indulged in alcohol, not because he craves it, but rather because he knows that it will disinhibit him from committing offences. In those circumstances it is not clear to me whether Naltrexone is going to be successful in reducing his risk of offending.
194 There are other obstacles to ordering Naltrexone implants as a condition of the respondent's release. First, I would not order them as a condition of the respondent's release unless he had been medically assessed and appropriately advised of any side effects.
195 Secondly, Naltrexone is an expensive drug and the respondent can not afford to pay for it. There is no evidence before me as to who would
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- meet the cost of the implants, administer them or supervise the respondent in respect to them. This is particularly relevant as the treatment would have to be administered indefinitely.
196 Similar problems arise in respect to ordering the administration of an antidepressant as part of the conditions of a supervision order. For example, the respondent has not been assessed in respect to the interaction of any antidepressant with Naltrexone. Further, the reduction of stress may have some effect on reducing the respondent's risk of offending but there is no evidence before me that it is going to address other, perhaps more significant, causes of his offending such as sexual drive, aversion to control by women, desire for dominance and displaced aggression.
197 There is no doubt that counselling would be an important part of a supervision of the respondent in the community in order to address a number of outstanding issues. However, I note that past counselling has not prevent the respondent from offending.
198 I have previously expressed reservations about the location of the respondent's sister's home because it is close to a well known hotel. I note that the respondent took one of his previous victims to that hotel to purchase alcohol in 2000 prior to sexually assaulting her. It is of further concern that the respondent's offending in 1985 and both incidents involving serious sexual offending in 2000 took place at riverside locations very close to his sister's home, where he now proposes to live.
199 I am also very doubtful that it would adequately protect the community for the respondent to live with his elder sister. I have no doubt that his sister is extremely well meaning in her willingness to have the respondent live with her and I have no reason to doubt her sincerity when she says that she would report the respondent's breach of any conditions of supervision to the authorities. On the negative side, I am satisfied that a significant cause of the respondent's prior serious sexual offending was an aversion to having women attempting to control his otherwise self indulgent and impulsive behaviour. It is remarkable aspect of his personal history that the respondent has never had a satisfactory significant relationship, intimate or otherwise, with a woman and that his sexual offending has nearly always occurred in the context of relationship stress or breakdown with his mother, a girlfriend or his wife. Even his relationships with his sisters have been problematical. He has only recently re-engaged with his sisters after a significant period of estrangement. As an adult he has never lived with either of them.
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200 After considering all of the evidence I am not satisfied that the community will be adequately protected by a supervision order. Consequently I must make a continuing detention order in respect to the respondent. The order must be reviewed in 12 months. It is necessary that within the next 12 months the authorities address my above concerns by having the respondent assessed for his suitability for Naltrexone and antidepressant medication, by obtaining expert evidence on the likely efficacy of Naltrexone and antidepressant medication to treat the causes of his offending and by addressing my concerns over the respondent's proposed living arrangements.
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