Director of Public Prosecutions for Western Australia v Wimbridge [No 2]
[2009] WASC 174
•18 JUNE 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- WIMBRIDGE [No 2] [2009] WASC 174
CORAM: HASLUCK J
HEARD: 16 JUNE 2009
DELIVERED : 18 JUNE 2009
FILE NO/S: MCS 20 of 2007
MATTER :Application pursuant to the Dangerous Sexual Offenders Act 2006
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
MARK BRADLEY WIMBRIDGE
Respondent
Catchwords:
Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for review of continuing detention order - Custodial sentence has been served - Assessment of risk of further sexual offending - Concession that respondent continues to be a serious danger to the community - Whether respondent should remain subject to existing detention order or be released pursuant to a conditional supervision order - If respondent is found to be a serious danger to the community a detention order cannot be rescinded unless a supervision order can be made that adequately protects the community - Issues concerning hormonal antilibidinal therapy - Whether expert witness evidence justifies the making of a supervision order - Whether respondent has made sufficient progress to justify the making of a supervision order - Finding that risk cannot be sufficiently reduced by supervisory conditions and that coercion by court order for antilibidinal therapy to reduce risk is unsuitable in the circumstances - Order that continuing detention order should not be rescinded
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17, s 28, s 29, s 31, s 33
Result:
Application for review heard and determination made that continuing detention order not be rescinded
Category: B
Representation:
Counsel:
Applicant: Mr P D Yovich
Respondent: Ms M in de Braekt
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Megan in de Braekt
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Director of Public Prosecutions (WA) v Williams (2007) 35 WAR 297; [2007] WASCA 206
Director of Public Prosecutions for Western Australia v Wimbridge [2008] WASC 44
TSL v Secretary to the Department of Justice (2006) 14 VR 109
Woods v The Director of Public Prosecutions [2008] WASCA 188
HASLUCK J:
Application for review
The Director of Public Prosecutions has applied for a review pursuant to certain provisions of the Dangerous Sexual Offenders Act 2006 (WA) in respect of the respondent, Mark Bradley Wimbridge. The application is dated 14 January 2009 and is in these terms:
1.An order that the respondent's detention, under the continuing detention order made by her Honour Justice Jenkins on 27 March 2008, be reviewed as soon as practicable after 27 March 2009, pursuant to s 29 and s 31 Dangerous Sexual Offenders Act 2006.
The March 2008 judgment
The background to the application is reflected in the judgment of Justice Jenkins in Director of Public Prosecutions for Western Australia v Wimbridge [2008] WASC 44 handed down on 27 March 2008.
In the course of that judgment her Honour noted that the respondent was born in Perth in 1967. He had two older sisters with a 13 year age gap between him and his next eldest sister. He had a problematic relationship with his father who was often sick with a stress related illness. The respondent left school at about the age of 14 years to obtain work.
His offending commenced with an indecent assault on 9 December 1980. In October 1981, aged 14, he appeared in the District Court in Perth and pleaded guilty to one count of attempted rape. His history of offending encompassed the commission of serious sexual offences on five separate occasions over 20 years and other offending against women in the same period. He was convicted on 3 September 2003 of two counts of sexual penetration without consent and one count of threat to kill in relation to offences committed on 13 May 2000. 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 Dangerous Sexual Offenders Act, following hearings on 17 September and 27 November 2007. On 27 March 2008 Justice Jenkins delivered lengthy reasons for decision in which the respondent was found to be a serious danger to the community and made subject to a 12 month continuing detention order.
I will not traverse her Honour's reasons for decision at length. The reasons include full particulars of the various sexual offences committed by the respondent and in that regard I will adopt her summary.
Her Honour referred at length to reports prepared pursuant to provisions of the Act by Dr Febbo and Dr Wojnarowska. She found both the psychiatrists to be credible and their evidence to be highly relevant. Her Honour noted that, to his credit, the respondent cooperated 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.
Her Honour noted that the respondent had previously spent significant periods in prison (4 years between 1985 and 1989 and 3 and a half years between 1994 and 1997) only to re‑offend when released. The lengthy period that the respondent had spent in custody did not seem to have persuaded either of the reporting psychiatrists that the respondent's risk of committing serious sexual offences could be easily managed in the community.
Her Honour gave consideration to evidence concerning the taking of anti‑libidinal medication but noted that the respondent was not willing to follow that course. Her Honour made it clear that treatment of that kind was not to be initiated without the consent of the respondent.
Her Honour concluded in this way at [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.
It was against this background that on 14 January 2009 the application presently before me was lodged with the court requiring that the continuing detention order be reviewed.
The 2009 programming orders
The application came before Justice Blaxell on 29 January 2009 for programming orders. His Honour gave directions that the application was to be heard on 28 April 2009, the CEO was to arrange for examination and report by Dr Peter Wynn Owen. He directed that Dr Wynn Owen was to liaise with the Department of Corrective Services as to a management plan, if appropriate, for the respondent.
Further, the Department of Corrective Services was to be requested to make available to the court an expert witness to give evidence of the kind contemplated by Justice Jenkins in the final paragraph of her reasons for decision.
As a consequence of these directions the application is now supported by a book of material for the purpose of the first annual review of detention dated 20 April 2009 containing reports bearing upon the situation of the respondent.
The evidentiary material book
The evidentiary material book includes a memorandum (apparently created on 28 January 2009) containing this passage:
Wimbridge is currently employed in the Cabinet Shop at Casuarina Prison where he has been employed for approximately 20 months. During that time he has earned two promotions and currently receives level two gratuities for his efforts. Work supervisors rate Wimbridge as an above average worker who would earn level 1 gratuities if a position was available. Wimbridge uses his initiative on a consistent basis and requires minimal supervision. He is punctual and reliable as well as getting on with others and being polite and respectful towards staff. Wimbridge completes his allocated tasks to a good standard and the supervisor also described Wimbridge as being conscientious and 'one of his better workers'.
Wimbridge resides in the Self Care Unit at Casuarina Prison under an Earned Privilege Regime. Unit staff state that Wimbridge is a quiet prisoner who keeps a low profile and does not draw attention to himself. He appears to socialise with others and is polite and respectful towards staff. Staff also state that Wimbridge will voluntarily undertake duties around the unit without being asked. Wimbridge abides by the unit rules and regulations and is not considered to be a management problem.
Wimbridge has not incurred any disciplinary convictions during his current sentence.
The evidentiary material book also includes an assessment report dated 7 April 2009 which is 'to provide information to the court detailing his release plans and a management plan that may be implemented should Mr Wimbridge be released on a supervision order'. The assessment report is signed by a Senior Community Corrections Officer (Hoskins), a Senior Case Work Supervisor (Snook) and the manager of the Victoria Park Community Justice Services (Nowicki).
It is noted in the assessment report that the respondent has engaged with Outreach Services for the purposes of obtaining accommodation. The co‑ordinator of that agency indicated that they could house the respondent from the beginning of the week after his court appearance and could accommodate him for approximately four to six months, after which he would be required to find independent accommodation. During the time of their support, and during his transition to his own housing, Outreach would provide support via home visits, transport to appointments and general social support.
As to proposed supervision order conditions, the report details the standard conditions required by the Act and sets out various 'additional conditions', being conditions suggested to strengthen and add to the standard conditions for the more effective management of the respondent in the community.
The assessment report concludes in this way:
Mr Wimbridge has a lengthy history of sexually violent offending. It would appear that previous periods of imprisonment, community based supervision and involvement in sex offender treatment programs have done little to moderate the frequency or severity of his convictions. Since being placed on a continuing detention order, he has received individual psychological counselling. The counselling report indicates he has made positive progress towards addressing his treatment needs, although liaison with the psychiatrist indicated some hesitation towards what gains may actually be cemented in a real world situation.
The entrenched nature of Mr Wimbridge's offending seems a likely barrier to his reintegration into the community. However, for approximately the first six months of his order he will have supported accommodation and also seems to possess positive relationships with his family members. He has expressed his willingness to engage with Community Justice Services and engage in any programme and treatment requirements the court chooses to impose. There remain concerns about the capability of Community Justice Services and the Sex Offender Management Squad to mitigate the risks associated with Mr Wimbridge's offending.
The evidentiary book included also the report of a clinical nurse Cheryl Hurley, the report of Dr Jayawardana dated 9 March 2009, the first report of a forensic psychologist Julie Hasson dated 6 February 2009 and the first report of Dr Wynn Owen dated 10 April 2009.
I will have more to say about the expert evidence later. However, I note in passing that the Hasson report included this passage:
Mr Wimbridge commenced individual weekly counselling on the 22nd May 2008. Counselling was completed on the 12 February 2009. Each session was between 1 1/2 and 2 hours duration.
Mr Wimbridge attended every session prepared to engage and work hard. It was apparent on numerous occasions that he found the therapeutic process daunting and challenging.
The report of Dr Wynn Owen included this passage at page 12:
Mr Wimbridge continues to present a high risk of future serious sexual violence. The likelihood suggested by his STATIC‑99 High Risk score (4 in 10 people with that score will reoffend in a five year period) is supported and potentially elevated by his PCL‑R score and past inability to incorporate apparent therapeutic gains into emotional and behavioural change.
Factors which may reduce risk
Anti‑libidinal therapy with an hormonal anti‑androgen: this treatment has been demonstrated to have a significant effect reducing reoffending rates of those treated. Mr Wimbridge has a history of sexual preoccupation and high libido suggesting he would have a good response to such a treatment if willing to participate.
Further information
In the course of submitting various materials to the court it became apparent, having regard to what had been said previously by Justice Jenkins and also by Justice Blaxell and Justice McKechnie in the course of making programming orders, that further information was required as to the prospects of the suitability of anti‑libidinal medications in the treatment of the respondent's propensity for sexual offending. I will say more about this aspect of the matter later when I turn to the evidence of the expert witnesses.
The respondent's concession
During the course of the exchanges preceding the hearing the respondent was represented by counsel. By an email dated 26 May 2009, shortly before the hearing, counsel for the respondent confirmed her previous advice to the applicant that the 'threshold issue' would be conceded, namely, that the respondent was a dangerous risk/threat to the community having regard to the considerations stipulated in s 7 of the Dangerous Sexual Offenders Act. This was confirmed again in counsel's written submissions dated 15 June 2009. Counsel submitted that the respondent should be released pursuant to a supervision order. It was said that the issues raised by Justice Jenkins as to medication and residential arrangements had been addressed. In addition to the standard conditions of a supervision order, counsel proposed certain further conditions including provision for the taking of anti‑libidinal medication. This approach was said to be consistent with Dr Wynn Owen's recommendation in his first report.
It therefore became clear that the central issue was likely to be whether the respondent should remain subject to the existing detention order or be released pursuant to a supervision order.
This brings me to the relevant statutory provisions.
Statutory provisions and legal principles
Section 28 of the Dangerous Sexual Offenders Act provides that the purpose of pt 3 of the Act is to ensure that a person's detention under a continuing detention order is regularly reviewed. By s 29, while a person is subject to a continuing detention order, the DPP must apply to the Supreme Court for the person's detention under the order to be reviewed as soon as practicable after the end of a period of one year commencing when the person is first in custody on a day in which the person would not have been in custody had the order not been made.
By s 31, after an application is made the court has to give directions for the hearing of the application. By s 32, the Chief Executive Officer must arrange for a person to be examined by two psychiatrists for the purpose of preparing reports to be used on a review.
By s 33(1), when the court reviews a person's detention the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
However, by s 33(2) the court may, if it finds that the person subject to the order remains a serious danger to the community, either expressly decline to rescind the order or rescind the order and make an order subject to conditions that the court considers appropriate. The paramount consideration is to be the need to ensure adequate protection of the community.
Decided cases such as Director of Public Prosecutions (WA) v Williams (2007) 35 WAR 297; [2007] WASCA 206; Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; and Woods v The Director of Public Prosecutions [2008] WASCA 188 establish that if the court finds that the person the subject of the application represents an unacceptable risk of committing serious sexual offences if not made the subject of an order under the Act, a finding that the person is a serious danger to the community will inevitably follow.
The same cases show also that once the finding is made there is no discretion not to make either a detention or supervision order. In other words, the word 'may' in s 17(1) of the Act means 'must': DPP v Williams at [68] ‑ [72], DPP v GTR at [49]. Counsel for the applicant submitted that the same interpretation must be applied to the word 'may' in s 33(2) of the Act, especially because that section includes the word 'either': cf DPP v GTR at [51]. The standard of proof required for a finding under s 7 is not as low as on the mere balance of probabilities, but it is not as high as beyond reasonable doubt: DPP v GTR at [28].
It seems that if the respondent is found to be a serious danger to the community then a detention order cannot be rescinded unless a supervision order can be made that meets the need to adequately protect the community.
Finally, I must keep steadily in mind that the reports of the experts are not to be treated as decisive. In TSL v Secretary to the Department of Justice (2006) 14 VR 109 Callaway AP observed at [40] ‑ [42] that in the end what is required is an assessment by the judge of the likelihood of the person's re‑offending. Parliament has conferred the responsibility for deciding whether or not to make a supervision order on judges experienced in sentencing but not constrained by assessment reports and medical evidence.
Let me now return to the evidentiary materials.
Further materials
Since the book of evidentiary materials was prepared, further materials have been prepared and were submitted to the court by the three expert witnesses mentioned below who gave evidence at the hearing.
More particularly, there is a further or second report from Julie Hasson dated 9 June 2009. There are two reports from Dr Cherelle Anne Fitzclarence dated 24 May 2009 and 8 June 2009 respectively. Dr Wynn Owen provided a further or second report dated 12 June 2009 which included a response to the Fitzclarence reports.
Before turning to the expert evidence in more detail, I note in passing that the position of the DPP as applicant (set out in the written submissions of 28 April 2009) was in part as follows:
10.It will be submitted on all the evidence that the Respondent is still a high risk of reoffending sexually in the manner described by Drs Hall and Wojnarowska at the original hearing and that he still constitutes a serious danger to the community. Dr Wynn Owen is expected to testify that the Respondent is just as much a danger as he was when the original application was heard and determined by Jenkins J, notwithstanding the treatment gains reported by Ms Hasson.
11.If that submission is accepted the question will be whether any supervision order can be framed that will reduce the risk to an 'acceptable' level, so as to permit the detention order to be rescinded.
12.That determination may well depend on whether the Respondent is a suitable candidate to take hormonal anti‑libidinal medication, and if so whether he is willing to take such medication. Dr Wynn Owen is of the view that the Respondent cannot be relied on to comply with a regime of oral anti‑libidinal medication unless his compliance could be reliably monitored and confirmed. The Applicant will reserve its position on this issue until the evidence on the point has been given, but stresses that it does not concede that the application does not stand or fall on the resolution of this issue alone.
At the conclusion of the hearing of the application, after the three expert witnesses had presented their further reports and been cross‑examined, counsel for the applicant submitted that the court should decline to rescind the continuing detention order because the evidence did not justify the making of a supervision order along the lines proposed by counsel for the respondent or at all.
Observations on the expert evidence
It was apparent from the reports of Dr Fitzclarence and from her evidence that she is a General Practitioner. She is not an endocrinologist or a psychiatrist and had no specific expertise in the area of anti‑libidinal therapy. She noted that the respondent had grave concerns about using the anti‑libidinal therapy cyproterone acetate and there were large risks associated with its use. She noted that in recent weeks he had commenced on sertraline (or SSRI) for his anxiety disorder, albeit aware of its anti‑libidinal properties.
I formed the view eventually that this witness was not as well‑qualified as Dr Wynn Owen to address the anti‑libidinal therapy issue. Thus, I will not dwell upon the evidence of Dr Fitzclarence at length.
It emerges from earlier discussion that the respondent had undertaken counselling with Ms Hasson. She said that the respondent's offending behaviour was motivated by anger and other dysphoria or untenable emotions referable to events in his upbringing and early adolescence. She described the process of counselling as not yet complete and as a work in progress. In her view, even with detailed supervisory conditions, he would at present continue to be at high risk of reoffending.
Dr Wynn Owen's first report contained this passage at page 13:
Mr Wimbridge has impressed on many occasions in the past as motivated to address his psychological issues and his risk factors for reoffending. Prior to 2008 he has completed 3 Sex Offender Treatment Programs in prison (1997, 1999 and 2007) and participated in 2 Community Based Maintenance Sex Offender Programs (1998 x2) and Community Maintenance Sex Offender Individual Counselling (2000). He has offended whilst on bail, on parole and whilst attending Community Based Maintenance Sex Offender programs. This suggests that although he has successfully understood the principles of the programs and has been able to identify his risks, triggers and possible coping strategies he has been unable to incorporate these into his behaviour to avoid reoffending. The treatment gains in 1:1 therapy reported by Julie Hasson are encouraging but they are unlikely to date to have had any significant effect on Mr Wimbridge's risk of reoffending which, without ongoing supervision, remains high.
Against this background, I am of the view that the available evidence establishes that the respondent remains a serious danger to the community in that there continues to be an unacceptable risk that if he were not subject to a continuing detention order he would commit a serious sexual offence.
The crucial question is whether he has made sufficient progress to justify the making of a supervision order. If it is not possible to make such a finding the court must decline to rescind the continuing detention order with the result that the detention will continue. However, even so, the process of review required by the statutory provisions will be ongoing.
In the end I feel compelled to give weight to the views expressed by Dr Wynn Owen. In his view, having regard to the respondent's inability to apply coping strategies to his behaviour in his past, for the time being supervisory conditions by themselves would not be sufficient to reduce the risk of reoffending to an acceptable level. Hormonal anti‑libidinal therapy was likely to be the most effective intervention of the risk but this could not be imposed either directly pursuant to a specific order direction or covertly as a perceived avenue to release. Any form of coercion would be counter productive. Moreover, there was a degree of ambiguity concerning the effects and capacity of anti‑libidinal therapy. Dr Wynn Owen's first report concluded with these recommendations:
If continuing detention is recommended:
●Review of willingness and suitability for hormonal anti‑androgen therapy in conjunction with a specialist endocrinologist, to commence as soon as possible if clinically appropriate (this would not be effective if coerced as required cooperation and dose compliance)
●Continued 1:1 counselling to consolidate treatment gains to date and continue to build insight, understanding of risks and coping strategies
●Alcohol abuse counselling, to reinforce the need for abstinence; attendance at Alcoholics Anonymous meetings whilst in prison
If supervised release to the community is recommended:
●Anti‑libidinal therapy as above
●1:1 counselling as above with a practical component of working through real‑life scenarios as stressors arise
●Participation in the Holyoake Prison to Parole Program, attendance at Alcoholics Anonymous meetings
Conclusion
The paramount consideration for the court is the need to ensure adequate protection of the community. It follows from my review of the evidence that as matters stand the risk cannot be reduced sufficiently by supervisory conditions of the usual kind. The court cannot make orders providing for anti‑libidinal therapy in order to reduce the risk because coercion of that kind would defeat the purpose of the treatment.
I am therefore of the view that I must decline to rescind the continuing detention order. I am of the view also that the steps proposed by Dr Wynn Owen under the heading 'If continuing detention is recommended' be taken. The progress of the respondent in that regard will be assessed when the detention order is next reviewed. However, it must be kept in mind that the DPP has the capacity to bring the matter again before the court at any time if sufficient progress has been made and it seems appropriate to have the situation of the respondent reviewed again.
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