Director of Public Prosecutions for Western Australia v Wimbridge [No 4]
[2011] WASC 75
•16 MARCH 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- WIMBRIDGE [No 4] [2011] WASC 75
CORAM: McKECHNIE J
HEARD: 16 MARCH 2011
DELIVERED : 16 MARCH 2011
FILE NO/S: MCS 20 of 2007
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
MARK BRADLEY WIMBRIDGE
Respondent
Catchwords:
Dangerous sexual offender - Release under supervision - Breach of supervision order - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Supervision order cancelled
Detention order made
Category: B
Representation:
Counsel:
Applicant: Mr P D Yovich
Respondent: Mr P B Cassidy
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 [No 3] [2010] WASC 173
McKECHNIE J:
(This judgment was delivered extemporaneously on 16 March 2011 and has been edited from the transcript.)
The respondent was declared a dangerous sexual offender and an order made for continuing detention on 27 March 2008: DPP v Wimbridge [2008] WASC 44. There was an annual review and at the second annual review he was ordered to be released under a continuing supervision: DPP v Wimbridge [No 3] [2010] WASC 173. He was duly released but has breached quite a number of the conditions in a very serious way. These breaches are acknowledged. They include breaches of conditions in relation to disclosing that he took possession of a motor vehicle and, more particularly, took possession of an internet‑capable telephone, no details of which were disclosed to the police.
He was, to say the least, evasive in relation to a first intimate relationship and I am satisfied that he deliberately breached the condition that allowed government officials to interview any associates. He has breached a condition for possession of pornographic material and, although it was not particularised, would appear also to have visited various pornographic sites, some of deviancy, which has a particular significance having regard to his record. He has also breached a condition about the use of alcohol, being charged twice with driving with in excess of .08 in his blood on two dates, about a week apart, in December 2010. Whether or not he has entered the premises of a prostitute, analysis of his phone does show that he has exchanged text messages with a prostitute in breach of other conditions.
Bearing in mind that these are serious allegations and the balance of probabilities should be approached with that in mind, I am satisfied the respondent has breached those conditions.
That finding triggers the judicial discretion which must be exercised, either to continue supervision, with or without amendment of the conditions, or detain in custody for an indefinite term for control, care or treatment.
The respondent has been ably represented this morning by Mr Cassidy, who has pointed to an improvement since the respondent was given a wake‑up call in December when he was charged with drink‑driving and that call seemed to have cascaded down to notifying the various agencies responsible for his management in the community. A wake‑up call? Well, I have to tell the respondent that this is not a wake‑up call. The wake‑up call was being released on supervision in the first place. In fact breaches have occurred within a very short space of time of a supervision order that stretches over 5 years. They are material breaches; they are serious breaches; they are breaches that relate directly to the riskiness of his behaviour.
I accept the evidence of Dr Wynn Owen this morning and his report.
The respondent seems to be an habitual liar, which may have something to do with his elevated psychopathy scores. He seems to lie whenever it suits him to avoid his responsibilities under the supervision order and, as I say, he has breached it in a most serious way repeatedly over a considerable time.
The respondent needs to understand that it is not the responsibility of the Department of Corrective Services or the police Sexual Offender Management Squad to keep him out of trouble; that responsibility is fairly and squarely his, and there are consequences should he get himself into trouble.
In the end, however, I do not exercise my discretion to punish him but to decide whether there is an unacceptable risk that he would commit a serious sexual offence, with the paramount consideration being the need to ensure adequate protection of the community.
Having regard to his non‑compliance, his mendaciousness, which has continued beyond December, I am quite unable to be satisfied that the community would be adequately protected if he was to continue under a supervision order.
Having regard to his behaviour, I think it highly likely that he would continue to engage in risky behaviour, taking alcohol, using pornography, against a background where his libido has failed to be diminished. It is in fact a very unacceptable risk to the community that he would commit a serious sexual offence if he remains within the community.
Conclusion
I find that he has contravened a number of conditions of the supervision order as particularised by the applicant, with the exception of condition 9, and I am satisfied there is an unacceptable risk that he would commit a serious sexual offence. I order that he be detained in custody for an indefinite term for control, care or treatment.
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