Director of Public Prosecutions for Western Australia v Wimbridge [No 3]
[2010] WASC 173
•20 JULY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- WIMBRIDGE [No 3] [2010] WASC 173
CORAM: BLAXELL J
HEARD: 21 JUNE 2010
DELIVERED : 20 JULY 2010
FILE NO/S: MCS 20 of 2007
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
MARK BRADLEY WIMBRIDGE
Respondent
Catchwords:
Dangerous Sexual Offenders Act 2006 (WA) - Review of continuing detention order - Second annual review - Whether respondent remains a serious danger to the community - Whether community can be adequately protected by a supervision order - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 29, s 30, s 31, s 33
Result:
Continuing detention order rescinded and supervision order made
Category: B
Representation:
Counsel:
Applicant: Mr P D Yovich
Respondent: Mr S B Watters
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Thames Legal
Case(s) referred to in judgment(s):
DPP v Wimbridge [2008] WASC 44
DPP v Wimbridge [2009] WASC 174
BLAXELL J: This is the second annual review of a continuing detention order made under the Dangerous Sexual Offenders Act 2006 (WA) (the Act) in respect of the respondent. On 27 March 2008 Justice Jenkins found that the respondent was 'a serious danger to the community' within the meaning of the Act, and ordered that he be detained in custody for an indefinite period for control, care or treatment (DPP v Wimbridge [2008] WASC 44).
On 16 June 2009 Justice Hasluck reviewed the respondent's detention pursuant to s 29 and s 31 of the Act, and expressly declined to rescind the order made by Jenkins J (DPP v Wimbridge [2009] WASC 174). The applicant (the DPP) now applies for the second annual review under the same sections of the Act.
The essential questions to be answered on the review are firstly, whether the respondent remains a serious danger to the community. Counsel on behalf of the respondent concedes that issue, and the materials before me clearly establish that fact. Accordingly, I make the finding that the respondent remains 'a serious danger to the community' within the meaning of the Act..
The second question to be answered on the present review is whether it is appropriate to rescind the continuing detention order and to substitute a supervision order under s 33(2)(b) of the Act. In deciding whether or not to make a supervision order, the paramount consideration is the need to ensure adequate protection of the community. It follows that the critical issue is whether a supervision order will adequately protect the community from the danger that the respondent represents.
As to that issue, the DPP concedes that subject to suitable conditions a supervision order will adequately protect the community. (The DPP has tendered a minute of the proposed conditions). Accordingly, I must decide whether or not an order on those conditions is appropriate.
The respondent's history of offending
The respondent was born on 6 January 1967.
On 10 October 1980 when the respondent was 13 years of age he was convicted in the Perth Children's Court for one offence of aggravated assault of a female. It was an indecent assault and I understand that it involved the respondent touching a woman's bottom. The Children's Court placed him on probation for six months.
Only one year later when the respondent was 14 years of age he was convicted in the District Court on his plea of guilty of one count of attempted rape. The facts were that he invited a 9‑year‑old girl to play with him in an abandoned house. He then threatened her with a knife and forced her to engage in sexual activity with him. He attempted penile penetration and also forced her to have oral sex. The court committed him to the care of the Department of Child Welfare until 18 years of age and recommended that he be held in strict custody for 12 months.
On 23 October 1985 when the respondent was 18 years of age he was convicted in the Supreme Court on his pleas of guilty of two counts of rape and one count of attempted carnal knowledge against the order of nature. The offences occurred after he gave a young woman waiting at a bus stop a lift in his car. He took her to the rear shed of a property, raped her twice and attempted anal intercourse without her consent. The sentencing judge described the offences as 'appalling and brutal', and imposed terms of imprisonment totalling 9 years 4 months with a minimum of 5 years before parole.
On 20 May 1992 when the respondent was aged 25 years he approached a 40‑year‑old woman who was getting into her car at a city car park. He grabbed her from behind and placed his hand over her face. When she screamed he released her and ran off. In March 1994 the respondent was convicted in the District Court on his plea of guilty to one count of deprivation of liberty and sentenced to 12 months' imprisonment with parole.
On 27 June 1993 when the respondent was aged 26 years he arranged for a prostitute to come to his house. After she undressed he threatened her with a knife, grabbed her by the hair and forced her onto the floor. He then forced her to have sexual intercourse a number of times and to participate in other sexual acts while he was holding the knife. He eventually allowed her to leave. The respondent was later convicted on his pleas of guilty of one count of deprivation of liberty and five counts of aggravated sexual penetration without consent. He was sentenced to 7 years 10 months' imprisonment with parole.
The respondent was released to parole on 13 September 1997. On 5 August 1998 while still on parole and aged 31 years he committed an offence on a young woman which was very similar in nature to the offence committed on the 41‑year‑old woman in 1992. On 1 February 1999 he appeared in the District Court and pleaded guilty to one count of deprivation of liberty and one count of assault. He was sentenced to 23 months' imprisonment and made eligible for parole.
The respondent was released to parole on 29 November 1999. On 13 May 2000 while on parole he picked up a street prostitute and drove her to an isolated location. He forced her to perform sexual intercourse and other sexual acts without her consent. He also threatened to kill her if she reported what had happened to the police. He was charged with two counts of sexual penetration without consent and one count of threatening to kill and was convicted of those offences following trial. On 3 September 2003 he was sentenced to 4 years' imprisonment without parole.
In the meantime, on 16 May 2000 the respondent had committed further offences against another street prostitute. He drove the woman to a remote location on the banks of the Swan River. He had sexual intercourse with her without her consent and also pushed her into the river causing bodily harm. On 15 March 2001 he pleaded guilty to aggravated sexual penetration without consent and was sentenced to 4 years 8 months' imprisonment with parole.
The previous proceedings under the Act
Mr Wimbridge's most recent sentence expired on 2 September 2007. Prior to then, the DPP applied under s 8 of the Act for either a continuing detention order or a supervision order. As a result of the orders made on that application Mr Wimbridge has remained in custody ever since. The materials before Jenkins J on the hearing of the DPP's application included reports on Mr Wimbridge's participation in numerous sex offender treatment programmes within the prison system between 1997 and 2008. Although there had been some treatment gains there were continuing concerns as to his risk of re‑offending given his past inability 'to intervene in his own offence cycle'. The reports indicated that Mr Wimbridge had an inability to develop appropriate intimate relationships and that his pattern of offending was driven by negative feelings, sexual frustration and low self‑esteem.
Mr Wimbridge also had been referred for assessment of his medical and psychiatric suitability for anti‑libidinal medications and treatment. However, there was a potential for substantial adverse side effects, and he was understandably reluctant to accept such treatment.
The psychiatrists who examined Mr Wimbridge pursuant to s 37 of the Act were Dr Mark Hall and Dr Gosia Wojnarowska. Dr Hall diagnosed Mr Wimbridge as being subject to an Anti‑social Personality Disorder. He lacked insight, exhibited impulsivity, and had demonstrated unresponsiveness to treatment. Dr Hall also conducted a formal risk assessment and in his view there was a high likelihood of Mr Wimbridge being sexually violent at some point in the future.
Dr Wojnarowska conducted a similar risk assessment and concluded that the respondent's risk of committing serious sexual offences in the future was in the 'high category'. It was also her opinion that any release into the community would have to be under strict guidelines and well‑defined conditions.
After taking account of all of the relevant materials, as well as the factors required to be considered under the Act, Jenkins J was satisfied that there was an unacceptable risk that if Mr Wimbridge was not subject to a continuing detention order or a supervision order he would commit a serious sexual offence. Her Honour did not consider that a supervision order would adequately protect the community for a number of reasons which included the following:
•The period of approximately eight years that the respondent had most recently spent in custody had not persuaded either of the psychiatrists that his risk of committing serious sexual offences could be easily managed in the community.
•The respondent's participation in sexual offender treatment programmes over the years had not significantly reduced his risk of committing further sexual offences.
•There was no evidence that the respondent was addressing significant causes of his offending 'such as sexual drive, aversion to control by woman, desire for dominance and displaced aggression'.
•The proposed arrangements for the respondent's accommodation in the community were not suitable.
A continuing detention order was made by Jenkins J on 27 March 2008, and the first application for an annual review of that order was heard by Hasluck J on 16 June 2009. The materials before Hasluck J included an assessment report (by three officers from Community Justice Services), a report by a forensic psychologist (Julie Hasson), a psychiatric assessment by Dr Wynn Owen, and a report by a general practitioner, Dr C A Fitzclarence (who was willing to prescribe medication with anti‑libidinal properties). Justice Hasluck also heard oral evidence from the three expert witnesses.
The general picture to emerge from the evidence on the first review was that Mr Wimbridge was undergoing worthwhile counselling to address the underlying issues which had precipitated his offending behaviour, but this was still 'a work in progress'. In this regard, it was Dr Wynn Owen's opinion that the treatment gains were encouraging, but because of the respondent's past inability to apply coping strategies to his behaviour, supervisory conditions on their own would not yet be sufficient to reduce the risk of re‑offending to an acceptable level.
Dr Wynn Owen also considered that hormonal anti‑libidinal therapy was likely to be the most effective treatment in respect of the risk. He recommended that whether there was a continuing detention order or a release into the community, there be a:
•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) (Report dated 10 April 2009)
As with the present review, there was a concession by Mr Wimbridge that he remained a 'serious danger to the community'. His Honour observed that the crucial question to be determined was whether Mr Wimbridge had made sufficient progress to justify the making of a supervision order. In light of Dr Wynn Owen's opinion, his Honour found 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.
The materials and evidence on the present review
I have before me numerous reports including those from an endocrinology consultant, Dr Kay Stanton (dated 21 October 2009), the forensic psychologist, Julie Hasson (dated 7 April 2010), the counselling psychologist, Sarah Ballantyne (dated 24 May 2010), the general practitioner, Dr C Fitzclarence (dated 7 June 2010), and the psychiatrist Dr P Wynn Owen (dated 8 June 2010). I also have an individual management plan (dated 29 January 2010) prepared by the Department of Corrective Services, a supervision assessment report (dated 19 April 2010) by a senior Community Corrections Officer, and case notes by the coordinator of the Dangerous Offenders Support Unit. The contents of these various reports are not in issue and neither party has sought to adduce oral evidence.
What all of these materials show is that over the past year Mr Wimbridge has made a number of treatment gains and has made good progress towards resolving some of his longstanding issues. In particular, he is taking more responsibility for his past sexual offending, and is developing an understanding of his previous patterns of behaviour and personality style which triggered that offending. He has realistic goals and plans for the future that can be readily achieved provided that there is ongoing support, monitoring, and supervision to ensure that he continues with his present progress.
For over a year, Mr Wimbridge has been prescribed an anti‑anxiety medication (Sertraline) which has anti‑libidinal properties. This medication has no harmful side effects, and Dr Fitzclarence's report states:
The antidepressant/antianxiety medication that I prescribed Mr Wimbridge a year ago belongs to a class of medications called SSRI's or selective serotonin reuptake inhibitors. These medications work by increasing a level of serotonin in the brain. Serotonin is a neurotransmitter that is involved in the control of mood, impulsiveness and appetite. Serotonin is known to interact with testosterone and in this way it can have an effect on sexual functioning. SSRI's can decrease libido and can also decrease sexual fantasies and urges. They are known to cause erectile dysfunction, reduced orgasmic and ejaculatory capacity. Kafka (1994) used sertraline in an open trial for men with paraphilia or paraphilia related disorders. He demonstrated after 18 weeks significant reduction in the variety of unconventional sexual outlets and also in the frequency of sexual behaviour in both types of subjects. He went on to demonstrate that if sertraline failed then a different drug in the same class increase the chance of success. Mr Wimbridge has been willingly on a standard dose of sertraline for over a year now and is reportedly doing well on it.
As a result of this medication Mr Wimbridge reports some interference with his sexual function and a decrease in sexual thoughts. Far from being disturbed by this, Mr Wimbridge also elected to be prescribed Androcur, which is a powerful 'antigonadotrophic' drug. He commenced on this medication on 5 June 2010 and it interferes with the working of the male hormone testosterone thus directly reducing sexual drive.
However, Androcur has some potentially serious side effects including liver toxicity, osteoporosis, interference with sugar metabolism, blood clots, and anaemia. Accordingly, at this stage Mr Wimbridge is simply undergoing a trial with Androcur and if there is any sign of side effects the medication will cease. In this regard, I have made it clear to Mr Wimbridge through his counsel that there is no expectation by the court that he should accept the Androcur medication, and that it is entirely a matter for him (on the basis of medical advice) whether he continues with that treatment.
Furthermore, Dr Wynn Owen has advised that Mr Wimbridge needs to be medically monitored throughout his treatment with Androcur, so that if any potentially detrimental psychological sign or symptom appears, he can be advised about the issue and asked to reconsider his consent to that treatment. Dr Fitzclarence has accepted the responsibility of taking on that role of monitoring and advice.
With regard to the progress of treatment generally, it is Dr Wynn Owen's opinion that:
Mr Wimbridge has made a number of treatment gains over the last year, in particular in taking more responsibility for his sexual offending, developing an understanding of his previous patterns of behaviour and personality style and identifying alternative ways to cope with stress, avoid boredom and recognise intimacy needs whilst not associating intimacy with sex. These gains in understanding and awareness are yet to be tested in the community. The treatment gains should be further consolidated through ongoing 1:1 counselling and his planned participation in the Holyoake Men's Program. They indicate a likely reduction in reoffending risk with respect to assessment 12 months ago. (Report 18 June 2010)
In the event that Mr Wimbridge is released into the community under a supervision order arrangements have been made (through Outreach Services) for him to be allocated transitional accommodation. Although this transitional accommodation is nominally for a period of six months, he will not be required to vacate it until he has been able to arrange permanent accommodation elsewhere.
The proposed conditions of any supervision order
If Mr Wimbridge is released into the community he will be required to consult and engage with any psychiatrist, psychologist, mentor, and/or support person nominated by a Community Corrections Officer (CCO). He will also be required to attend any programme or course designed to address his offending behaviour as directed by a CCO.
Mr Wimbridge will also be required to comply with any obligations placed upon him under the Community Protection (Offender Reporting) Act 2004 (WA). He will be monitored by the police Sex Offender Management Squad who will be able to enter and search his residence at any time. If required, he will be obliged to allow monitoring of his use of the internet.
Mr Wimbridge will not be permitted to be under the influence of alcohol, and will be required to undergo urine analysis or other testing for substance abuse as directed by a CCO or a police officer. He will not be permitted to enter the premises of, to contact, or to use the services of any prostitutes, escort agents or sex workers. He will not be permitted to pass through the areas known as Northbridge and Highgate, or to attend any sex shops or places at which erotic activities occur.
Conclusions
As a result of counselling and treatment (including prescribed medications) over the past year Mr Wimbridge has made significant gains in addressing the causes of his past sexual offending. The indications are that that progress is likely to continue, and in my opinion the proposed conditions for a supervision order will adequately protect the community against the risk of him re‑offending.
In all of the circumstances I consider that it is appropriate to order that the continuing detention order be rescinded. There will also be an order that at all times during the period of five years from 20 July 2010, when Mr Wimbridge is not in custody he be subject to conditions in terms of the minute of proposed conditions (dated 21 June 2010) that I have now signed.
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