Director of Public Prosecutions (WA) v AA [No 10]
[2018] WASC 3
•11 JANUARY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- AA [No 10] [2018] WASC 3
CORAM: CORBOY J
HEARD: 5 DECEMBER 2017
DELIVERED : 11 JANUARY 2018
FILE NO/S: MCS 33 of 2006
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
AA
Respondent
Catchwords:
Dangerous Sexual Offenders Act 2006 (WA) - Contraventions of a supervision order - Whether continuing detention order should be made under s 23
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 23, s 40A, s 40B
Result:
Continuing detention order made
Category: B
Representation:
Counsel:
Applicant: Mr B D Meertens
Respondent: Mr M R Gunning
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Gunning Barristers & Solicitors
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v AA [No 6] [2013] WASC 154
Director of Public Prosecutions (WA) v AA [No 9] [2016] WASC 46
The State of Western Australia v AA [2006] WASC 279
The State of Western Australia v AA [No 2] [2007] WASC 129 (S)
CORBOY J:
The application and the result
The respondent has a history of serious sexual offending against pre‑pubescent male children. He was declared a dangerous sexual offender by Murray J in December 2006. His Honour released the respondent to the community subject to a supervision order: The State of Western Australia v AA [2006] WASC 279.
The respondent voluntarily surrendered himself to the police in 2007 stating that he was concerned that he was at risk of sexually reoffending: The State of Western Australia v AA [No 2] [2007] WASC 129 (S). The supervision order was rescinded and a continuing detention order was made. The respondent remained subject to the order until he successfully applied under s 30 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) to be released to the community on a supervision order (the Supervision Order). Justice Jenkins made the Supervision Order on 15 February 2016: Director of Public Prosecutions (WA) v AA [No 9] [2016] WASC 46.
The respondent was subsequently convicted of five offences against s 40A(1) of the DSO Act. On 24 August 2017, Archer J made an interim detention order under s 24A of the DSO Act.
The State then applied for an order under s 23 of the DSO Act (the Contravention Application). The application sought either that a continuing detention order be made or the Supervision Order be amended and/or extended. However, the State pressed for a continuing detention order to be made at the hearing of the Contravention Application, primarily on the ground that the respondent's previous accommodation in the community was no longer available and suitable alternative accommodation had not been found.
I have concluded that a continuing detention order should be made. The effect of the evidence presented in the Contravention Application was that there would be an unacceptable risk of the respondent committing a serious sexual offence if a continuing detention order was not made. For reasons that will be explained, it is regrettable that this was the inevitable outcome of the application.
The contraventions of the Supervision Order
Section 23(1) provides that:
If the court is satisfied, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order, the court may -
(a)make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the conditions of the supervision order, or both; or
(b)if the court is also satisfied that there is an unacceptable risk that, if an order under this paragraph were not made, the person would commit a serious sexual offence, make a continuing detention order in relation to the person; or
(c)make no order.
The State relied on the respondent's convictions to establish that the respondent had contravened the Supervision Order. Section 40A(1) of the DSO Act provides that a person subject to a supervision order who, without reasonable excuse, contravenes a requirement of the order commits an offence. Section 40B(4)(d) provides that any findings of fact made by the Supreme Court in proceedings on a charge made under s 40A may be used in proceedings under pt 2 div 4 of the DSO Act. The Contravention Application was a proceeding under that part and division. However, the DSO Act does not contain a corresponding provision to s 40B(4)(d) where an offence against s 40A(1) has been tried in a court of summary jurisdiction. Accordingly, the effect of the DSO Act is that the State was required to prove in the Contravention Application the fact of the respondent's conviction and the circumstances in which his contraventions had occurred.
The parties agreed at the hearing of the Contravention Application that the materials tendered by the State (in the form of a book that was marked as exhibit 1) proved the fact of conviction for the five offences committed by the respondent. It was further agreed that the facts alleged by the prosecutor for the purpose of sentencing the respondent following his convictions had been admitted. It was also agreed that submissions made on behalf of the respondent for the purpose of sentencing could be accepted as facts in the Contravention Application.
The first contravention
The respondent pleaded guilty on 27 October 2016 to a charge that, being subject to a supervision order and without reasonable excuse, he contravened a requirement of the order by leaving his approved address on 26 October 2016 without the prior approval of a community corrections officer. No punishment for that offence was ordered pursuant to s 46 of the Sentencing Act 1995 (WA).
The facts of the contravention were that it was a requirement of the Supervision Order that the respondent could only leave the psychiatric hostel that was his approved residence (the Approved Hostel) with the prior approval of a community corrections officer (CCO). At 10.34 am on 26 October 2016, the respondent left the Approved Hostel without the prior permission of a CCO. He caught a bus into the Perth CBD and was apprehended by police at the Perth Busport at 11.00 am.
The respondent subsequently participated in an electronically recorded interview in which he stated that staff at the Approved Hostel had prohibited him from smoking after 8.30 pm the previous night and another resident had told him to 'keep it down' when he called his CCO to complain. He was 'fed up' the next morning and had left the Approved Hostel without prior approval.
The second contravention
The respondent pleaded guilty on 27 January 2017 to a charge that, being subject to a supervision order and without reasonable excuse, he contravened a requirement of the order by leaving his approved address on 26 January 2017 without the prior approval of a community corrections officer. No punishment for that offence was ordered pursuant to s 46 of the Sentencing Act.
The facts of the contravention were that the respondent left the Approved Hostel at 7.53 pm on 26 January 2017 without the permission of a CCO. He caught a bus into the Perth CBD and was apprehended by police at the Perth Busport at 9.05 pm.
The respondent explained on being interviewed that staff at the Approved Hostel had reprimanded him for smoking and he considered he could no longer stay at the hostel. He stated that he did not want to go back to the Approved Hostel because of the restrictions on smoking.
The third contravention
The respondent pleaded guilty on 25 August 2017 to a charge that, being subject to a supervision order and without reasonable excuse, he contravened a requirement of the order by leaving his specified residence on 6 July 2017 without the prior approval of a CCO. He was fined $300. The fine was a global fine for the offences that constituted the third to fifth contraventions of the Supervision Order.
The facts of the contravention were that at 11.38 am on 6 July 2017, the respondent left the Approved Hostel and went to a nearby shopping centre without the approval of a CCO. He was at the shopping centre for only two minutes and then returned to the hostel. He was absent from the Approved Hostel for seven minutes. He told the police and his CCO that he was hearing voices; he was upset that power points in his room were not working; and that he thought it was unfair that some residents at the Approved Hostel could go to the shopping centre while he was prevented from doing so.
The fourth contravention
The respondent pleaded guilty on 25 August 2017 to a charge that, being subject to a supervision order and without reasonable excuse, he contravened a requirement of the order by leaving his specified residence on 7 July 2017 without the prior approval of a CCO.
The facts of the contravention were that at 8.10 am on 7 July 2017 the central monitoring station operator at the Department of Corrective Services received a telephone call from a staff member at the Approved Hostel indicating that the respondent had left the hostel. The respondent had approval to leave but only later in the morning to attend the Sex Offender Management Squad. The respondent subsequently attended the Squad in compliance with his reporting obligations.
The fifth contravention
The respondent pleaded guilty on 25 August 2017 to a charge that, being subject to a supervision order and without reasonable excuse, he contravened a requirement of the order by leaving his specified residence on 3 August 2017 without the prior approval of a CCO.
The facts of the offence were that at 7.00 pm on 3 August 2017 the respondent left the Approved Hostel without the approval of his community corrections officer. He took a train to the Fremantle Train Station where he was arrested by police at 7.30 pm.
The respondent told police that he had to find alternative accommodation. There had been an incident prior to the respondent's departure from the Approved Hostel in which he had chased a staff member after there had been a disagreement. The respondent advised that he would leave the Approved Hostel and live in the street. He then called the electronic monitoring officer to advise that he was going to look for somewhere to live in the Perth CBD or Fremantle. He stated that he was about to catch a bus.
Shortly afterwards, the respondent called the operator to advise that he was at the Perth Train Station and planning to take a train to Fremantle. Subsequently, the operator contacted the respondent. He gave his location and reiterated that he intended to travel to Fremantle by train. He was met by police at the Fremantle Train Station.
The Supervision Order and the Approved Hostel
The continuing detention order made in 2007 was subject to annual reviews as prescribed by the DSO Act. Each of the judges who presided over the annual reviews for 2013, 2014 and 2015 concluded that the respondent remained a serious danger to the community but that the community would be adequately protected if the respondent was released on a supervision order with conditions that required him to reside in a psychiatric hostel or other accommodation that would provide an appropriate level of support and supervision. The respondent made an application under s 30 of the DSO Act in November 2015 (the s 30 Application) after a private psychiatric hostel advised that it could provide supervised accommodation.
The respondent suffers from schizophrenia. A forensic psychiatrist, Dr Hall, gave evidence in the s 30 Application that the respondent possessed a 'concrete and simplistic thinking style, with limited self‑sufficiency and difficulty with problem solving'. The respondent also had some cognitive disabilities. Dr Hall considered that it was necessary that the respondent be placed in a supported and supervised facility such as a licensed psychiatric hostel if he was to be released to the community.
It was not in issue in the s 30 Application that the respondent was a serious danger to the community but Jenkins J concluded that:
The overwhelming view of all of the experts involved in [the respondent's] treatment and management, the DPP and the judges who have determined the annual reviews is that if appropriate, supported accommodation could be found for [the respondent] and he could be further supported in the community with assistance from community mental health services, a welfare agency, SOMS and DCS officers and psychologists and if he could be subject to strict conditions which include GPS monitoring, the community would be adequately protected from [the respondent's] risk of serious sexual reoffending. The difficulty has been in obtaining appropriate, supported accommodation for [the respondent] [79].
Her Honour also noted that:
The psychiatric evidence is to the effect that [the respondent's] risk of serious sexual offending is greatest when he is distressed, stressed and anxious. Dr Hall and others responsible for his management are of the view that requiring [the respondent] to live independently in the community would be likely to make him anxious, distressed and stressed. Whereas requiring him to live at the [psychiatric hostel] will give him the structure and support which he needs, without the punitive regime of a prison. Thus, as long as [the respondent] copes with the transition from prison to the [psychiatric hostel], the hostel should enable him to live safely in the community without increasing his distress, stress and anxiety to such an extent that there is an increased likelihood of him releasing his frustrations and anxiety by reoffending. If he does not cope with the transition, the extent of supervision under the SO will enable this to be observed and appropriate steps to be taken to return him to prison before there is a serious likelihood that he will reoffend [85].
The psychiatric and psychological evidence
The State tendered in the Contravention Application a report from Dr Hall and a report from a counselling psychologist, Dr Yewers.
Dr Hall re‑affirmed his previous opinion that the respondent remained at high risk of committing a serious sexual offence if a continuing detention or supervision order was not made. He considered that a number of factors contributed to the respondent's risk of sexually reoffending: a deviant sexual interest, specifically paedophilia; emotional instability, with paroxysmal intense anxiety or agitation; poor problem solving and coping skills; poor insight into treatment needs; and vulnerability to decompression under stress.
Dr Hall did not consider that the risk of the respondent sexually reoffending had changed since the assessment undertaken for the purpose of the s 30 Application. Consequently, in Dr Hall's opinion, the factors that contributed to the respondent's high risk of reoffending were manageable in the community provided that the respondent returned to a supported and supervised setting such as a licensed psychiatric hostel. Dr Hall noted that historically the respondent had soothed internal discomfort by sexual release involving paedophilic fantasies. Accordingly, managing the respondent's risk required that the triggers, such as anxiety and distress, for his sexually deviant soothing behaviours be minimised. That could be achieved in the community by a combination of supervision, support and counselling.
However, Dr Hall also considered that the management of the respondent's risk in the community could not be assured if there was no suitable accommodation available for him. The effect of Dr Hall's evidence was that the respondent required a highly structured environment to avoid undue stress and anxiety and accordingly, supportive and supervised accommodation was essential to adequately managing the risk of him sexually reoffending in the community.
Dr Yewers advised that the respondent had attended psychological counselling sessions as directed by his CCO while he had been in the community. The respondent had maintained a positive relationship with his treating psychologist but his gains were limited. The limitations were the product of the respondent's complex presentation of chronic psychotic illness, paedophilia, impaired intellection functioning, limited adaptive behaviour skills, lack of insight and poor general coping. The respondent's response to psychological treatment was unlikely to change due to the enduring nature of his presentation. Nevertheless, in Dr Yewers' opinion, continued psychological contact in a community setting could assist and support the respondent in negotiating the challenges that he would continue to face in self‑risk management and daily living generally.
Dr Yewers agreed with Dr Hall that the respondent struggled to cope when emotionally aroused and in times of crisis while living in the community. She considered that the respondent's limited insight into his own functioning extended to his sexual offending. He admitted to feelings of sexual attraction to children but lacked awareness of the role that deviant fantasy and arousal might have in his offending and risk of reoffending. His management of the risk of offending was rudimentary, consistent with his impaired cognitive ability and limited insight.
Dr Yewers did not express an opinion on whether the community would be adequately protected if the respondent was released once more on a supervision order. She merely observed that the respondent would require significant oversight, structure and support if he was released to the community.
Dr Hall and Dr Yewers both noted that the respondent had been frustrated by some of the restrictions imposed on his residence at the Approved Hostel - in particular, the requirement that he could only leave the hostel with the prior approval of a CCO and the limitations on his smoking. Dr Hall considered that some relaxation on the conditions on which the respondent resided in the community would reduce the risk of sexual reoffending. He recognised that this might appear counter‑intuitive but he explained:
With regard to restrictions on movement, although somewhat paradoxical (or at least counter‑intuitive), it is likely that removal or relaxation of the requirement to seek prior approval before leaving the grounds of [the supervision psychiatric hostel] would avoid iatrogenic agitation due to effective home detention, reduce the sense of alienation that results from being the one respondent that cannot simply walk to the shop, and provide [the respondent] with the option to remove himself from a stressful encounter and thereby reduce anger and frustration.
Performance report
The State tendered a performance report prepared by officers of Adult Community Corrections. It was noted that the respondent had participated in a number of structured activities in the community without incident; indeed, the gist of the report was that the respondent had positively engaged in those programmes.
The Approved Hostel had initially advised that it was not prepared to have the respondent remain as a resident following the contraventions of the Supervision. However, the report stated that the Approved Hostel had reconsidered. It was prepared to have the respondent resume as a resident but a bed was not available for him at the time of that the performance report was prepared. Regrettably, a bed had not been made available for the respondent by the hearing of the Contravention Application.
The performance report also advised that enquiries had been made at other psychiatric hostels but that they were not prepared to accept the respondent because of his extensive history of sexual offending.
Conclusion
There was no issue that the respondent had contravened the Supervision Order for the purpose of s 23(1) of the DSO Act. The issue to be determined in the Contravention Application concerned what order should be made having regard to the provisions of s 23(1)(b) and s 23(2). Section 23(2) provides that in deciding whether to make an order under s 23(1) the paramount consideration is the need to ensure adequate protection of the community.
The respondent's contraventions of the Supervision Order consisted of leaving the Approved Hostel without permission. The contraventions were committed when the respondent became frustrated by rules relating to smoking in the Approved Hostel (which the respondent claimed were unfairly enforced against him) or limitations on his freedom to leave the hostel (limitations that did not apply to other residents). He left the Approved Hostel for only a short duration and he either contacted his CCO or a monitoring officer to advise of his location or he truthfully answered enquiries as to his whereabouts. There was no evidence that he had engaged in any sexually risky behaviour while he was away from the Approved Hostel or that his departures were motivated by a desire to engage in such behaviour. Accordingly, I accept the assessment of Dr Hall that the respondent's risk of committing a serious sexual offence if released to the community remained the same as when the Supervision Order was made (and when the annual reviews for 2013 and following were conducted). The contraventions of the Supervision Order were not a manifestation of an escalation in the risk of the respondent committing a serious sexual offence.
However, the evidence of Dr Hall and Dr Yewers established that the risk of the respondent sexually offending could only be adequately managed in a highly structured and supervised environment such as a psychiatric hostel; indeed, it was apparent that the respondent lacked the skills necessary to adequately manage daily living in a less regulated setting. That was the conclusion reached by the judges who conducted the 2013 and following annual reviews and by Jenkins J in the s 30 Application. The availability of accommodation for the respondent in a supervised psychiatric hostel was the decisive factor in that application.
The evidence presented in the Contravention Application was consistent with the findings that were made in the earlier annual reviews and the s 30 Application; see, for example, the observations of McKechnie J in Director of Public Prosecutions (WA) v AA [No 6] [2013] WASC 154. In particular, I accept the evidence of Dr Hall that the respondent remains at a high risk of committing a serious sexual offence. Further, I am satisfied on the basis of the evidence given by Dr Hall and Dr Yewers that the respondent remains a serious danger to the community; that is, that there is an unacceptable risk that the respondent would commit a serious sexual offence if he were not subject to a continuing detention order or a supervision order. I am further satisfied on the basis of all of the evidence submitted by the State that there is an unacceptable risk that the respondent would commit a serious sexual offence if an order was not made under s 23(1)(b). The determinative factor in making that finding is the absence of any suitable accommodation for the respondent. I would have been prepared to release the respondent on the Supervision Order or on a modified supervision order had accommodation been available for him in a psychiatric hostel or some other highly structured and supervised residence. As I have indicated, the evidence disclosed that the risk of the respondent committing a serious sexual offence had not changed since 2013 and in particular, the contraventions of the Supervision Order did not suggest an increase in that risk.
For the reasons that have been given I am satisfied that it is necessary to make a continuing detention order on the Contravention Application to ensure that the community is adequately protected in the absence of suitable accommodation being available for the respondent.
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