Director of Public Prosecutions (WA) v Alvisse [No 5]

[2012] WASC 136

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- ALVISSE [No 5] [2012] WASC 136

CORAM:   McKECHNIE J

HEARD:   20 APRIL 2012

DELIVERED          :   20 APRIL 2012

FILE NO/S:   MCS 33 of 2006

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

ANTHONY JOHN ALVISSE
Respondent

Catchwords:

Dangerous sexual offender - Review order - Whether sufficient progress - Turns on own facts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Detention order not rescinded

Category:    B

Representation:

Counsel:

Applicant:     Ms L Petrusa

Respondent:     Mr M R Gunning

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Gunning Young

Case(s) referred to in judgment(s):

Nil

1. McKECHNIE J:  Mr Alvisse has been a declared dangerous sex offender since 12 December 2006.  A period under supervision in the community was unsuccessful and he has remained in detention for most of the time while making progress, albeit slowly, towards rehabilitation and the possibility that the risk he poses to the community may be acceptably managed under a supervision order.

2. He was one of the first persons to be declared a dangerous sex offender and experience has shown that in those early days, there was insufficient care taken in relation to preparation of some offenders for release.  In hindsight supervision was not a good idea for Mr Alvisse at that stage without a lot of work being done.  That work now appears to be being done.

3. As part of the orders made at the last review Murray J approved a treatment programme and release preparation plan. 

4. For the purposes of this review Dr Mark Hall, a psychiatrist, was engaged to provide a report.  He concludes that the respondent's risk of re‑offending sexually remains high.  There is nothing in the material which has been placed before me, or in Dr Hall's report, which would cause me to reach a conclusion different to that of Murray J or me at previous reviews, namely, that the respondent is a dangerous sexual offender.  Mr Gunning, who has represented Mr Alvisse for some time, very responsibly accepts that this is so.  The effects of the treatment plan are summarised by Dr Hall as follows:

   Mr Alvisse has made further gains over the past twelve months.  He has achieved a minimum security rating and has made progress with the staged release preparation plan.  He has engaged well with those involved in his management, and continues to improve with respect to the frequency and intensity of emotional and behavioural crises in response to perceived stressors.  His progress, however, has been necessarily, and not unexpectedly, slow.

   Those aspects of Mr Alvisse's mental state most associated with his potential to reoffend are his sexual deviance, his limited coping ability associated with episodes of escalating distress when feeling overwhelmed, and his potential to again become so anxious about his functioning in the community that he seeks to dispel negative emotion through sexual release, or offends (or threatens to offend) in order to secure his return to an institutional setting.

   Mr Alvisse's longer term needs, beyond addressing his deviant sexual arousal, relate to stable accommodation, abstinence from illicit substance use, and ongoing and responsive mental health treatment and follow-up in the community.  In Mr Alvisse's case, the above factors are likely to 'inter‑react', such that a disturbance in any one will reverberate through the others, with the end result being an escalation his anxiety and an increased risk of either reoffending sexually or threatening to reoffend.

5. Dr Tamara Caple in her report says:

   Mr Alvisse's needs are complex and require a well structured and supported plan for transition to the community.  Any progress towards community release which is not well planned for will likely result in his failure to adequately adjust.

6. In this context Mr Alvisse was moved to Bunbury Regional Prison as part of the treatment plan for release.  Ms Zuin has also provided a report.  In her opinion, in summary, having dealt with the stages she says:

   He is in the initial phase of stage 2 but it will be some time before he progresses to stage 3.  It is unrealistic to impose a time frame on this until Mr Alvisse has more regular visits to the Pre‑Release Unit.

   Mr Alvisse continues to have intensive treatment needs.  In addition to issues around stable accommodation and structure in the community, much needs to be achieved before consideration should be given to releasing Mr Alvisse.  His delusional thinking is a major concern, especially as it relates to his paranoid beliefs that children are deliberately placed before him by authorities to tempt him to reoffend.  Mr Alvisse's attitude towards release appears to be inconsistent.  For example, during interview he showed some interest in being released however he also expressed concern about his risk of reoffending due to his delusional belief that he has no choice.

   Continuation of the Proposed Staged Release Preparation Plan is strongly recommended.

7. Today I have heard evidence from a senior community corrections officer, Ms McKenna, who has provided a community assessment supervision report and prepared a proposed staged release preparation plan.  She says that Mr Alvisse is up to between stage 2 and stage 3 of that plan which has been tendered in evidence.  If he progresses through stage 2 successfully, under stage 3 he will be transferred to the pre‑release unit and specifically participate in the community transition programme and learn life skills such as cooking, shopping and budgeting.  He will also engage in alternative prison work opportunities.  The plan can be adjusted as required to accommodate Mr Alvisse's capacity to make gains.

8. Ms McKenna, who has been dealing with the respondent, Mr Alvisse, for some eight weeks says that he has recently been showing very positive steps.  A huge step is walking by himself to appointments and engaging in discussion without panic or fear.  Ms McKenna has seen a significant shift and Mr Alvisse is much more confident.  However, she notes that there is still a great deal of work to be done in progressing Mr Alvisse to release into the community.

9. The reports and the plan indicate to me that the Department of Corrective Services is working hard to prepare Mr Alvisse for eventual life in the community, should the court decide in due course that he is an acceptable risk to be released under close supervision, and I am also pleased to see that Mr Alvisse seems to be working hard as well to achieve that goal.

Conclusion

1. On the basis of all the material put before me I am satisfied that Mr Alvisse is making treatment gains, albeit slowly but very positively, and has considerably advanced from his condition when Murray J revoked the supervision order in 2007.  However, I am clearly of the view that release into the community at this stage is premature.  That is the State's submission and Mr Gunning agrees with it.  There is still more work for Mr Alvisse and others to do before release under supervision can be considered.  A paramount consideration is the protection of the community.  At this stage of his treatment it would be a completely unacceptable risk for him to be released on supervision. 

2. I do express the hope that after a further period of counselling and adjustment, Mr Alvisse might reach the stage where his risk to the community by being released becomes, in the words of the Dangerous Sexual Offenders Act 2006 (WA), an acceptable risk. For the present, however, I find that he continues to be a dangerous sexual offender and I expressly decline to rescind the detention order.