Director of Public Prosecutions (WA) v Coffin
[2014] WASC 305
•5 SEPTEMBER 2014
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- COFFIN [2014] WASC 305
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 305 | |
| Case No: | DSO:1/2014 | 18 AUGUST 2014 | |
| Coram: | HALL J | 5/09/14 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Indefinite detention order made | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) FABIAN ALEC COFFIN |
Catchwords: | Criminal law Dangerous Sexual Offenders Act 2006 (WA) Application for indefinite detention Whether unacceptable risk of committing further serious sexual offences Whether serious danger to the community Whether indefinite detention order or supervision order appropriate |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA) |
Case References: | Attorney-General (Qld) v Francis [2006] QCA 324; (2007) 1 Qd R 396 Director of Public Prosecutions (WA) v Brown [2012] WASCA 102 Director of Public Prosecutions (WA) v Decke [2009] WASC 312 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 Director of Public Prosecutions (WA) v Samson [2014] WASC 199 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 The State of Western Australia v Latimer [2006] WASC 235 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
FABIAN ALEC COFFIN
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for indefinite detention - Whether unacceptable risk of committing further serious sexual offences - Whether serious danger to the community - Whether indefinite detention order or supervision order appropriate
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Indefinite detention order made
Category: B
Representation:
Counsel:
Applicant : Ms K Robinson
Respondent : Ms M R Barone
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Attorney-General (Qld) v Francis [2006] QCA 324; (2007) 1 Qd R 396
Director of Public Prosecutions (WA) v Brown [2012] WASCA 102
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Director of Public Prosecutions (WA) v Samson [2014] WASC 199
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206
The State of Western Australia v Latimer [2006] WASC 235
- HALL J:
Introduction
1 Between 1990 and 2002 Fabian Alec Coffin, the respondent, committed a series of serious sexual offences. These offences commenced with a violent sexual assault on a 16-year-old female victim in 1990. Subsequent offending did not involve violence though it did involve significantly younger victims, predominantly female.
2 The offences came to light at different times. The respondent was convicted of some of the offences in 1997 and served a period of imprisonment. Whilst on parole he committed further offences for which he was charged in 2001. Whilst on bail he committed further offences. He pleaded guilty to all of those offences and received sentences of imprisonment. He has now been in custody since 20 August 2002. He was eligible for parole in 2009 but the Prisoners Review Board declined to release him.
3 The respondent's maximum term of imprisonment was due to expire on 15 February 2014. Prior to that date the Director of Public Prosecutions applied for an order that he be detained in custody for an indefinite term for control, care and treatment pursuant to s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act). Such an order can only be made if the court finds that the respondent is a serious danger to the community. Where the court finds that an offender is a serious danger to the community it must either order that the offender be detained for an indefinite term or make a supervision order permitting the offender to be released into the community subject to specified conditions.
4 The respondent does not accept that he is a serious danger to the community or that orders under s 17 of the Act are open. However, on his behalf it is submitted that in the event that the court is of the view that he is a serious danger to the community, the appropriate outcome is a supervision order and not an indefinite detention order. It is submitted that the risk of reoffending could be adequately managed in the community.
5 For the reasons that follow, I have come to the conclusion that the respondent is a serious danger to the community. I have also concluded that there are no conditions that could be imposed at this stage that would adequately reduce the risk that he would commit further serious sexual offences if he were to be released into the community on a supervision order. In these circumstances, the need to ensure adequate protection of the community requires that an indefinite detention order be made.
Delay in hearing
6 This matter was first set down for a hearing on 27 March 2014. On that occasion the respondent sought and was granted an adjournment of the hearing. The reason for that adjournment was that the possibility that anti-libidinal medication may affect the respondent's risk of reoffending and the manageability of that risk had been raised in the reports of psychiatrists that were prepared for the hearing. This was not a possibility that had previously been raised with the respondent. He sought an adjournment so that that possibility could be explored.
7 The respondent was aware that if he was indefinitely detained and then commenced on a course of anti-libidinal medication he would not be able to apply for an 'exceptional circumstances review' of his detention until the expiry of 12 months: s 30(2) of the Act. He was aware that there was a risk that in adjourning the application any order for indefinite detention that was later made would date from that time and could not be backdated: Director of Public Prosecutions (WA) v Brown [2012] WASCA 102.
8 Initially the matter was adjourned to 14 April 2014 to determine whether arrangements could be made for the respondent to consult a private doctor. This was necessary because prison doctors were no longer willing to prescribe such anti-libidinal drugs. The necessary assessment was not made by 14 April and the respondent sought a further adjournment. At that stage a doctor willing to assess the respondent had been identified but the assessment process had not commenced and, in the event that the respondent was found suitable, a period of time was also required to enable an assessment of the efficacy of the drug. Again, counsel for the respondent confirmed that the adjournment was sought notwithstanding the potential negative consequences of the delay for the respondent. These adjournments were not opposed by the applicant. An order was made that the respondent had liberty to apply to bring the matter on earlier in the event that the anti-libidinal drug was not prescribed. In the event, the drug was not prescribed but no application was made to bring the matter on at an earlier date and the hearing proceeded on 18 August 2014.
9 It is worthwhile noting that respondents to applications of this type are often in an invidious position. The application cannot be made until there is a possibility that the respondent will be released within 6 months: s 8(3) of the Act. In practical terms the respondent often has a very limited time to make arrangements and gather evidence that would support their case for an indefinite detention order not to be made. If a respondent seeks adjournments for this purpose the period of interim detention will be likely extended. If an indefinite detention order is ultimately made any period spent in interim detention cannot be taken into account. Nor can the indefinite detention order be backdated. Furthermore, since the first review cannot take place until 12 months has passed and an extraordinary review cannot be held in that first 12 months, adjournments may result in the respondent spending significantly longer than 12 months in custody on an indefinite detention order before they receive their first annual review. This shows that there is some practical significance in the DPP making applications as soon as possible, rather than not doing so until very close to the expiry of the maximum term (as is often the case).
10 The statutory requirement that applications cannot be filed until there is a possibility of release within 6 months ensures that respondents are only assessed when their possible release into the community is imminent. This allows respondents to obtain whatever rehabilitative benefits as may be possible during their prison sentence. Any such rehabilitation will be relevant in assessing the risk of reoffending. However, there is no impediment to the DPP bringing applications at a very late stage, causing the problems I have referred to above. In this case the application was filed on 28 January 2014, which was barely more than two weeks before the respondent's maximum imprisonment term was completed (on 14 February 2014).
The evidence
11 The evidence in this case consisted of two volumes of materials, an updated Community Supervision Assessment Report and oral testimony of a number of witnesses called by the applicant.
12 The documentary material was tendered by consent. It consisted of historical material relating to the respondent's prior offending, his conduct and treatment in prison and reports prepared for the purposes of this hearing. Included in the materials were the reports of two psychiatrists, Dr Gosia Wojnarowska and Dr Sam Febbo. They were both called to give oral evidence and were cross-examined. In addition a psychologist from the Department of Corrective Services, Ms Chantelle Place, and a Community Corrections Officer, Ms Julie Debala were called. They had also prepared reports regarding possible treatment options and the viability of conditions of release.
13 The respondent did not give or adduce any evidence. There was no dispute as to factual matters. The only real issue was what conclusions could be drawn. There were no conflicts in the evidence and no issues as to credibility. I accept the evidence given and will record the conclusions I draw from it.
The law
14 Section 17 of the Act provides:
Division 2 orders
(1) If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may -
(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.
(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
15 Section 7(1) of the Act states that before the court can find that a person is a serious danger to the community it must be satisfied that there is an unacceptable risk that if the person were not subject to a continuing detention order or a supervision order then the person would commit a serious sexual offence. If the court is satisfied that there is an unacceptable risk of the kind described in s 7(1) of the Act it necessarily follows that the person concerned is a serious danger to the community: Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 [66] (Wheeler JA) and Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [21] (Steytler P & Buss JA).
16 Section 7(2) provides that the DPP has the onus of satisfying the court that a person is a serious danger to the community. The court has to be satisfied by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition: Director of Public Prosecutions (WA) v GTR [28] (Steytler P & Buss JA). This does not necessarily mean that the risk must be at some high percentage of probability, a risk may be less than 50% yet still be unacceptable. However, the court must identify what it is that constitutes the risk and makes it unacceptable and then consider whether or not those factors have been proved to a high degree of probability by acceptable and cogent evidence: Director of Public Prosecutions (WA) v GTR [34] (Steytler P & Buss JA).
17 A serious sexual offence is defined in s 3 of the Act to have the meaning given to that term in s 106A of the Evidence Act 1906 (WA). That means an offence mentioned in pt B, sch 7 of the Evidence Act for which the maximum penalty is 7 years' imprisonment or more. In the past the respondent has committed some offences which are not categorised as serious sexual offences. This raises the question of what use the court can make of such offending. It is important to note that the Act is concerned with the risk of committing serious sexual offences in the future. It would not be open to make an order if the only risk identified by the court was the risk that the person concerned would commit offences that do not fall within the category of serious sexual offences. That does not mean that offences of other types committed in the past are not relevant in assessing the risk of serious sexual offences being committed in the future. This is because other offences may be connected to behaviour which has the real potential to lead to serious sexual offending. They may also be relevant to whether there is any discernable pattern of offending behaviour.
18 The DPP may make an application under the Act where a person is under a sentence of imprisonment for a serious sexual offence. At the time this application was made the respondent was serving the balance of sentences imposed in 2002 and 2003. Those sentences were imposed in respect of serious sexual offences.
19 What is meant by 'an unacceptable risk' was considered by Wheeler JA in Director of Public Prosecutions (WA) v Williams [63] - [65]. In that case her Honour said that a judge is required to consider the likelihood of the person offending and the type of offence likely to be committed in considering whether the risk is so unacceptable that the interests of the community would require the person to be subject to further detention even though they have already been punished for whatever offence they may have actually committed in the past. That does not exclude the possibility that an unacceptable risk may be effectively addressed and minimised by a supervision order.
20 In Director of Public Prosecutions (WA) v GTR Steytler P and Buss JA said [27] that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence with serious consequences for the victim), the likelihood of a risk being realised and the serious consequences for the offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).
21 Section 7(3) of the Act sets out a number of matters that the court must have regard to in considering whether a person is a serious danger to the community. Those matters are:
In deciding whether to find that a person is a serious danger to the community, the court must have regard to -
(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;
(b) any other medical, psychiatric, psychological, or other assessment relating to the person;
(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future;
(d) whether or not there is any pattern of offending behaviour on the part of the person;
(e) any efforts by the person to address the cause or causes of the person’s offending behaviour, including whether the person has participated in any rehabilitation program;
(f) whether or not the person’s participation in any rehabilitation program has had a positive effect on the person;
(g) the person's antecedents and criminal record;
(h) the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;
(i) the need to protect members of the community from that risk; and
(j) any other relevant matter.
22 As s 7(3)(j) implies, the list of matters to be considered by the court is not a closed one.
23 While s 7(3)(g) provides that the court must have regard to the criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious sexual offence in the future. The relevance of a prior record will depend on the nature of the offences committed, the number of them and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct.
24 Once a court has concluded that an offender is a serious danger to the community it must make either an indefinite detention order or a supervision order: Director of Public Prosecutions (WA) v Williams [68] (Wheeler JA) and Director of Public Prosecutions (WA) v GTR [51]. In deciding between these two possibilities the paramount consideration is the need to ensure the adequate protection of the community: s 17(2). That does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order: Director of Public Prosecutions (WA) v Decke [2009] WASC 312.
25 Once a finding is made that a person is a serious danger to the community the court may adjourn the proceedings for further evidence to be obtained to assist in deciding between a supervision order or continuing detention: Director of Public Prosecutions (WA) v Williams [45], [47] (Martin CJ) and [85] (Wheeler JA)).
26 The court should chose the option which is least invasive or destructive of the respondent's right to be at liberty. At the same time it must ensure an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 and Director of Public Prosecutions (WA) v Decke.
27 The court should not be concerned with funding issues when setting the terms of a supervision order. The court can assume that, if an order was made, the Executive will perform its function of protecting the community by the provision of appropriate assessment and resources: Director of Public Prosecutions (WA) v Williams [81] (Wheeler JA).
History of offending and antecedents - s 7(3)(g)
28 In deciding whether a person is a serious danger to the community the court must have regard to the person's antecedents and criminal record: s 7(3)(g). This means all prior offences, whether they be serious sexual offences or not, to the extent that such offences are relevant to the question of whether there is an unacceptable risk that the person would commit a serious sexual offence in the future. It also requires consideration of the person's personal history, including the context in which past offences were committed.
29 The criminal record and antecedents are relevant in themselves, but also relevant to whether the person has a propensity to commit serious sexual offences in the future: s 7(3)(c). They are also relevant to whether there is any pattern of offending behaviour: s 7(3)(d).
30 The respondent was born in Paraburdoo on 13 January 1973. He is the second youngest in a family of five siblings. His parents separated when he was five years of age, at which time he moved with his mother to Onslow. His maternal uncle and grandmother then played significant roles during his childhood.
31 The respondent attended primary school in Onslow until the age of ten. At that time his mother married a man of European descent. He initially rejected his step-father but over the years their relationship improved. He did not adjust to life in Adelaide and was relieved when the family decided to return to Western Australia during his high school years. At around this time he began regularly drinking alcohol and getting into trouble with the police. He has also reported being the victim of sexual abuse as a teenager, though the details of tis are unclear.
32 The respondent's sexual development was largely normal. His first sexual experience with a girl of a similar age occurred when he was 15 years old. He had several short term sexual relationships before entering into his only long term relationship when he was 19. That relationship lasted for approximately 14 years with periods of separation. The respondent described this relationship as volatile with violence perpetrated by both he and his partner. They both used drugs and alcohol and there were high levels of sexual jealousy. They have five children together, though one of them died in a motor vehicle accident. The surviving children are aged between 11 and 21.
33 The respondent has made a self-assessment that he has always had a high sexual drive. He also frankly admitted to psychiatrists who interviewed him that he had a sexual interest in older female children. However, he also stated that he was equally interested in female adults.
34 The first serious sexual offence committed by the respondent occurred on 21 November 1990. He was aged 17 years old at the time. The offence took place in South Hedland. The victim was a 16-year-old female who was walking home from work at approximately 9.30 pm. She was unknown to the respondent. He attempted to engage her in conversation whilst he was riding his bike alongside her. He then grabbed her and forced her into bushes. He digitally penetrated her vagina then unzipped his pants and penetrated her vagina with his penis. The victim was forced to remove a tampon and the respondent continued to penetrate her vagina with his penis until he ejaculated. He also digitally penetrated her anus and bit her breasts. According to the victim's witness statement the respondent appeared to be drunk at the time of this offence. He was not identified as the offender until many years later.
35 The next offences occurred between December 1995 and March 1996. These offences occurred at Onslow when the respondent was aged between 22 and 23 years old. The victim in respect of these offences was a girl of between 11 and 12 years of age at the time. The victim had been the babysitter for the respondent's children. The first offence involved him removing the girl's clothing and rubbing her breasts. Subsequently, on three separate occasions, the respondent committed acts of sexual penetration on the girl by inserting his penis into her mouth and also into her vagina. There was no allegation of force or coercion and the respondent maintained that he believed that the child was 14 or 15 years old at the time. He pleaded guilty to one charge of indecently dealing with a child and six charges of sexually penetrating a child and was sentenced to a total effective sentence of 6 years' imprisonment on 10 June 1997.
36 The sentencing judge noted that the respondent should not have been surprised at the age of the child since he had never taken the trouble to ask her her age. His Honour also noted that the respondent had engaged in the activities for his sexual satisfaction, that he had taken advantage of the child without any regard for her welfare and that whilst he had been drinking at the time of each of the offences that did nothing to excuse his conduct.
37 The next sexual offence occurred on 8 October 2000. On this occasion The respondent and his partner were staying with his partner's sister at a house in Karratha. The sister, who was the victim of the offence, was aged 18 years old at the time. One evening the victim went to bed in the lounge room as the respondent and his partner were using her bedroom. Sometime after going to sleep she was awoken by the respondent putting his hand down her shorts. His attempts to do so woke her up and she stopped him. She called out for her mother, who was also staying at the house, and the respondent went back to the bedroom. The victim woke her mother and told her what had happened. The mother confronted the respondent and told him to leave. He tried to say sorry to the victim. This offence, whilst of a sexual nature, does not fall within the definition of a serious sexual offence.
38 The next sexual offence occurred on 6 January 2001. On this occasion the respondent and his partner were staying at a house in Karratha for the purposes of attending a funeral. The victim of the offence, a 13-year-old girl, was also staying at the same house. In the early hours of the morning when the girl was sleeping on a bed in the lounge room she was disturbed by the sensation of being touched. On awakening the victim saw the respondent leaning over her bed. He continued to touch her, stroking her vagina with his hand over her clothing. The victim sat upright and the respondent quickly returned to a mattress on the floor adjacent to the victim's bed and covered his head with his T-shirt. The respondent pleaded guilty to a charge of indecently dealing with a child. He was not sentenced for that offence until 15 October 2002 when he was also dealt with for other offences, including the indecent assault which had occurred on 18 October 2000.
39 The next sexual offences occurred in July 2002, whilst the respondent was on bail for the offences that had occurred in 2000 and 2001. There were six separate victims on this occasion, children aged between 10 and 13 years old. On the evening of Friday, 19 July 2002 the first victim, a 13-year-old deaf girl, was staying overnight at her aunt's house in Onslow. The respondent and his partner were also residing at that house at the time. On two separate occasions during the night the respondent went to the lounge room where the child was sleeping and touched her vagina over the top of her clothing. On the first occasion the child sat up but could not see who it was that had touched her. On the second occasion she saw the respondent and told him to stop it. She informed her aunt the next day, who reported the matter to the police.
40 On the evening of 31 July 2002 the respondent went to a house in Karratha. The occupants were asleep and he obtained access by removing a flyscreen from an open lounge room window and climbing inside. He then approached a 12-year-old boy who was asleep on a mattress in the lounge room. He knelt by the side of the boy's head, grasped a handful of hair at the rear of his head, lifted the boy's head off the bed and towards his unzipped pants and attempted to force the boy to suck his penis. The boy refused and pushed the respondent away, after which he desisted and moved away. He then approached two girls aged 10 and 12 years old who were asleep on another mattress in the same room. He lent over the girls, who were feigning sleep and touched them on their bare legs under the blanket. The girls pushed his hand away and he then left the room and walked outside into the rear yard. The children then got up, locked the door and closed the lounge room window to prevent the respondent from re-entering the house. Sometime later he knocked on the rear laundry door and was let in by an adult from whom he asked permission to sleep the night. The adult was unaware of what had occurred. Permission was granted and the respondent slept on one of the mattresses in the lounge room and the children were moved to a bedroom. During the course of the night he went to the bedroom and asked the children to 'come outside'. One of the adults in the house then became aware of what he was doing and told him to leave.
41 Following those offences, at about 5.30 am the following morning the respondent went to another house in Karratha, which was next door to the house where he was then residing. Two girls, both aged 13 years old, were sleeping together in a single bed in a bedroom in the house. The respondent entered the house and went to the bedroom, where he touched one of the girls on her vagina on the outside of her pants. The girl, who was feigning sleep, brushed his hand away. He then touched the other girl on her upper thigh. He moved his hand up and down the girl's leg and under her shorts for approximately five minutes. This girl was awake and begged him to leave the room. He did leave, although he returned half an hour later and was told by the same girl to go away.
42 The events of July 2002 resulted in the respondent being charged with six counts of indecently dealing with a child, one count of attempting to sexually penetrate a child and one count of aggravated burglary. He was sentenced for these offences together with the offences that occurred in 2000 and 2001 on 15 October 2002. He received a total effective sentence of 6 years' imprisonment with respect to all of those offences.
43 As a result of those offences, the respondent's identity as the perpetrator of the offences that occurred in 1990 was established by a DNA match. He was then charged with, and pleaded guilty to, seven charges of aggravated sexual penetration, two charges of aggravated indecent assault, one charge of indecent assault and one charge of unlawful detention. On 9 June 2003 he was sentenced to a total effective sentence of 6 years' imprisonment cumulative on the sentence he was already serving.
44 It is clear from this history that at least between the years 2000 to 2002 the respondent engaged in a series of serious sexual offences against children. Those offences involved seeking to obtain sexual gratification by indecently dealing with children who were sleeping. The offences involved persistent conduct and appear to have all been related to alcohol use. These offences were not characterised by violence, although the attempted oral penetration of the boy was accompanied by force. The earlier offending in 1990 and in 1995 to 1996 was different. The 1990 offences involved an older victim and at a time when the respondent was himself a juvenile. Those offences were also accompanied by significant use of force and involved multiple acts of penetration. The 1995/1996 offences involved a child of similar age to the victims of the later offences but were different in that they involved a sexual relationship with a child rather than opportunistic acts. It is difficult to draw a pattern of behaviour from the whole of the offending conduct, however it is apparent that it shows that the respondent has displayed a sexual attraction to older children and has been prepared to take significant risks in order to gratify that attraction.
Efforts to address offending behaviour - s 7(3)(e) and s 7(3)(f)
45 It is necessary to consider whether the respondent has made any efforts to address the cause or causes of his offending behaviour, including participation in any rehabilitation programmes: s 7(3)(e).
46 Whilst in prison between 15 February 1997 and 27 November 1999 the respondent participated in a pre-release sex offender treatment programme at Greenough Regional Prison. He was considered to have successfully completed that programme. The completion report stated that he had been honest and candid, including identifying an interest in adolescent girls. He was said to have recognised the inappropriateness of this behaviour and to have developed a comprehensive relapse prevention programme. The report stated that he was able to recognise high risk situations and had developed victim empathy. He was assessed as being at low risk of re-offending in a sexual manner. His release on parole was supported.
47 Unfortunately the risk assessment proved to be incorrect. The respondent was released on parole on 27 November 1999. Less than 12 months later he committed the indecent assault on the 18-year-old female in 2000. He also committed the 2001 serious sexual offences of indecent dealing with a child during the period of parole. This shows that, even assuming that the pre-release sex offender treatment programme had been successful, the respondent had a serious relapse. The programme was not effective in achieving lasting and significant change in his behaviour. Clearly his sexual desire for children persisted.
48 In 2003 the respondent commenced an Indigenous Men's Managing Anger and Substance Use Programme (IMMASU). He apparently engaged and participated well in that programme. However, he was removed from the programme after his conviction of further offences in 2003 led to an increase in his security rating rendering him ineligible.
49 In December 2005 the respondent completed a Reasoning and Rehabilitation Programme at Casuarina Prison. The treatment completion report stated that he was a polite but quiet participant who engaged with group activities and demonstrated an understanding of problem-solving and a capacity for making use of the process. It was noted, however, that there was no improvement in his impulsivity. This is a significant reservation given the apparently opportunistic nature of the offences committed in 2002.
50 Between 17 July 2006 and 16 March 2007 the respondent undertook an Intensive Sex Offender Treatment Programme (ISOTP) at Casuarina Prison. The completion report stated that he was a quiet but engaged and insightful group member. He demonstrated a willingness to explore issues associated with his offending behaviour and showed some understanding of the causes of that behaviour. He had some reluctance to discuss issues relating to his sexual interests in the group context. However, his ability to self-manage and to control his emotions improved during the programme. Nonetheless, the report stated that he appeared to maintain a number of attitudes which supported his offending behaviour.
51 One of the issues identified in the completion report was the connection between alcohol use and offending. In this regard the report stated:
Of significance was [the respondent's] substance use, particularly his use of alcohol, as a means of managing uncomfortable emotions. [The respondent] disclosed an entrenched pattern of alcohol use, which appears to have been disinhibiting in terms of his decisions to engage in sexual behaviour. Whilst this relationship seemed significant in terms of his offence cycle, however, it was by no means causal. [The respondent] evidenced a pattern of alcohol use in response to feelings of depression and inadequacy or disempowerment. This seemed particularly true in situations where [the respondent] was unable to reconcile the behaviours of others with his own needs or wishes. [The respondent] also reported a marked increase in his tendency to respond aggressively when intoxicated. In relation to this his self-report reflected a pattern of using alcohol as a means of preparing himself for such behaviour, contributing to an affective state conducive to these acts and also providing him with what was, from his perspective, an acceptable excuse for his behaviour.
52 Whilst the ISOTP produced some treatment gains, the respondent was still assessed as being in the high risk category at the completion of that programme. A number of significant outstanding treatment needs were identified. These included the need to address his substance use and his own experience of sexual abuse. It was considered that he would benefit from 'individual therapeutic support' in relation to issues associated with self-management and social emotional functioning. Notwithstanding that recommendation, no individual psychological counselling was offered or undertaken.
53 Between 26 October 2009 and 12 November 2009 the respondent undertook another IMMASU programme. On this occasion he was able to complete the programme. The completion report stated that he was an eager and cooperative participant with a genuine desire to refrain from abusing alcohol, gain employment and achieve a healthier lifestyle. At the completion of the programme he was able to demonstrate strategies that he would utilise in the community to address his offending behaviour. Essentially these involved avoiding situations of conflict where in the past he had resorted to alcohol and drugs. He was able to identify a number of coping strategies that he would use in such circumstances, including taking time out, contacting a men's help line, counselling, gaining employment and relying on family and friends.
54 Whilst the respondent's willingness to attend and engage with programmes cannot be faulted, there are reasons to doubt whether those programmes have achieved long term, significant and sustainable change. As noted above, the ISOTP completion report stated that he continued to have significant treatment needs in regard to his risk of further sexual offending. His successful completion of the IMMASU programme in 2009 needs to be offset against the fact that whilst in prison he has committed a number of prison offences including possession of pornographic material and possession of drugs. The most recent of these offences include possession of cannabis on 30 June 2010, 23 October 2010, 4 July 2013 and 13 August 2013 and possession of pornographic material on 23 July 2012 and 7 August 2013.
Psychiatric reports and the extent to which the respondent cooperated with psychiatric examinations - s 7(3)(a)
55 The court ordered the respondent to undergo examination by two psychiatrists, Dr Gosia Wojnarowska and Dr Sam Febbo. Both psychiatrists met with him for the purpose of preparing reports. He fully cooperated with the psychiatric examinations. The reports were tendered as part of the agreed books of materials and both psychiatrists gave oral evidence at the hearing and were cross-examined.
Dr Wojnarowska's evidence
56 The respondent told Dr Wojnarowska that he recognised that his behaviour was unacceptable to society and said that it was also unacceptable to himself. He expressed shame for what he had done and felt that his worst offence was against 'the babysitter'. He recognised that this was a particular breach of trust.
57 The respondent identified his risk factors as including intoxication, stress, anxiety and boredom. He tended to project some responsibility for his offending on to his then partner. However, he admitted that he had sexual interest in children. He was, however, unable to commit to an age group that he was particularly interested in. When questioned about his male victim he was adamant that he was not interested in young boys and stated that the victim of that offence had looked somewhat feminine.
58 Dr Wojnarowska was of the view that the respondent had a good understanding of the fact that sexual activity with children was wrong. He admitted that he was, and is, still attracted to young girls. He said that he was very particular about who he liked in terms of looks but could not describe this any further.
59 The respondent told Dr Wojnarowska that he considered that he had a high sex drive but was not sexually preoccupied. He said that he had not had the need to view pornography for a long time and was then challenged in regard to his prison charges. His explanation was 'it happened a long time ago' and 'I've mellowed since'. When questioned about his general attitude towards women he said 'I'm a bit scared of them, I don't know what they think and I'm not sure how to behave towards them'. He admitted preferring children's company as he felt comfortable with them.
60 Dr Wojnarowska noted that the respondent had a history of violent offending but that his aggression appeared to have subsided over the years as his last charge in relation to aggression was in 2008. The respondent accepted that he had used aggression or violence as a means of resolving discomfort and that in the past he had tended to punish his ex-partner through violence or through his offending behaviour. He reported being able to place himself in another person's position but Dr Wojnarowska considered that this was difficult to reconcile with his presentation during the interview and the way he spoke about the victims.
61 The respondent was forthcoming with Dr Wojnarowska in discussing his sexual fantasies and preferences. He identified being interested in female children however he could not commit to a specific age group. He denied being interested in prepubescent children and maintained that when he was offending against the 11-year-old girl he thought she was at least 14 years of age. He said that he was equally interested in female adults, though he was not considering developing an intimate relationship if released into the community. He said that he intended to manage his high sex drive in the community by having casual sex. He expressed a need to 'stay away from children'. It was evident that he had a concern that he might offend against them if they were in close proximity to him.
62 Dr Wojnarowska noted that the respondent continued to perceive children as sexually knowing and mature and believed that some of his victims were willing participants in the abusive conduct. These were attitudes that had been noted at the completion of the ISOTP. Dr Wojnarowska said that these attitudes were still present but that the respondent was adamant that he understood that engagement in sexual activity with children was wrong.
63 Dr Wojnarowska diagnosed the respondent using the diagnostic system in the Diagnostic and Statistical Manual of Mental Disorders, (4th ed) (DSMIV). Her diagnosis was that he has the clinical disorder of paedophilia of a non-exclusive type, though he is attracted predominantly to female children. She also noted the existence of an anti-social personality disorder. The diagnosis of paedophilia was supported by the long history of offending against children and by his own admissions of attraction.
64 Dr Wojnarowska also noted:
[The respondent] presents with profound deficits in interpersonal functioning characterised by deficits in empathy associated with limited remorse, some propensity for violence, minimisation of sexual offending, specifically in relation to the rape offence, and, to some extent, abrogation of personal responsibility for his behaviour by quoting intoxication with alcohol as a form of excuse. His history of entrenched alcohol use, although currently in remission in the custodial setting, warrants the diagnosis of a history of alcohol dependence. His cannabis use is ongoing and has not ceased in the prison setting.
65 Dr Wojnarowska made an assessment of the risk of further sexual offending using actuarial instruments and structured clinical guides. In particular, she utilised the Hare Psychopathy Check List - Revised (PCL-R) the Risk of Sexual Violence Protocol (RSVP) and the Historical Clinical Risk 20 (HCR-20).
66 The PCL-R assesses the extent to which an individual's personality conforms to the clinical construct of psychopathy. It does not in itself indicate the risk of sexual offending but the personality type revealed by this instrument may be relevant in assessing such a risk. The respondent's score using PCL-R was in the high range but was below the threshold usually required to confirm a diagnosis of psychopathy. He scored particularly highly in aspects which measured social deviance. Those with high scores on the social deviance scale tend to be impulsive and unstable, they possess a varied and persistent anti-social lifestyle with frequent and serious violations of social and legal expectations and standards from a young age. This is consistent with the diagnosis of anti-social personality disorder.
67 The respondent's score on the HCR-20 confirmed that he was at high risk of future violence. The factors which led to this conclusion included historical factors and evidence of low behaviour control whilst in prison. Future risk management issues include the likely exposure to illicit substances and relationship problems.
68 The RSVP guide incorporates consideration of a number of variables. The more significant variables that exist in the respondent's case are as follows: his offending has persisted over a long period of time; he has offended against both strangers and children acquainted to him and against both sexes; his offending has been accompanied by denial, albeit that he has pleaded guilty to offences once charged; he has problems with self-awareness, stress, substance abuse, intimate relationships, employment and planning; and there is a clear pattern of deviant sexual interest.
69 Dr Wojnarowska concluded that in her opinion the respondent is at high risk of sexual reoffending if not detained. Several factors contributed to this conclusion: his high sex drive, his deviant sexual interest in children, his untested coping skills, the high likelihood of him resorting to alcohol, unresolved issues from his childhood and no developed realistic relapse prevention plan.
70 Dr Wojnarowska stated that the respondent was likely to offend in a manner similar to his previous offending. This may occur, when due to stress, arguments with family members and boredom, he would resort to alcohol and cannabis to regulate his mood. Once in a binge drinking mode his inhibitions would lower to the point that he would be likely to sexually harass and then assault a child that is known to him. The risk would not be immediate but could be realised notwithstanding very strict supervision and an immediate response to any breaches of a supervision order. The long term harm to a victim would depend on the type of assault but the potential for serious psychological harm is high.
71 In cross-examination Dr Wojnarowska was asked whether the fact that the most recent offending had been confined to indecent dealing meant that any future offending would also be so confined. In fact the offending was not so confined, one of the offences in 2002 involved an attempted sexual penetration of a male child. In any event, Dr Wojnarowska did not accept the proposition and considered that there was a risk that offending conduct could proceed beyond indecent dealing to more serious sexual conduct.
72 Dr Wojnarowska was of the opinion that the respondent requires further treatment in relation to his personality deficiencies, his sexual interest in children and his history of substance abuse. That treatment should involve drug counselling and counselling to address sexual deviance. In particular, individual counselling was recommended. This counselling should occur on at least a weekly basis and concentrate on personality deficits and management strategies.
73 Dr Wojnarowska also noted that given the respondent's self-reported very high sex drive and his continuing deviant sexual fantasies, treatment with anti-libidinal medication should be considered. She noted that this possibility needed to take into account the respondent's state of health, including his high blood pressure and diabetes. As I have noted above, assessment for anti-libidinal medical was subsequently undertaken and the respondent was considered unsuitable. I will refer to that in more detail later in these reasons.
Dr Febbo's evidence
74 Dr Febbo engaged the respondent in a discussion in relation to sexual deviance for the purposes of preparing his report. The respondent told Dr Febbo that 'for a long time' he had been sexually aroused by young females between the ages of 13 and 15. He said that this probably began in high school when he was attending an Aboriginal boarding school. He said that he would creep into the dormitories and have sex with younger girls. This was a pattern that had continued through the years. He admitted to a continuing attraction but accepted that it was wrong. Nonetheless, he also admitted to having sexual fantasies about girls of approximately 13 years of age, although his fantasies were not so confined.
75 Dr Febbo diagnosed the respondent with the clinical disorder of paraphilia not otherwise specified, paedophilia and with having paranoid and borderline personality traits. His conclusions were consistent with those of Dr Wojnarowska.
76 Dr Febbo also made a risk assessment. He utilised the STATIC99, PCL-R and RSVP instruments. He accepted that the STATIC99 was of limited use because that instrument had not been verified in respect of Indigenous offenders. In respect of the PCL-R, a high score similar to that obtained by Dr Wojnarowska was noted. Again, as with Dr Wojnarowska, Dr Febbo noted particularly high results on the social deviance scale. This scale reflects a tendency to impulsivity and irresponsibility, juvenile delinquency and early behavioural problems.
77 In regard to the RSVP, Dr Febbo noted that the considerations fell within five domains; sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. In respect of the domain of sexual violence history, the respondent demonstrated a number of risk factors. Whilst sexual violence had not escalated over time, all of his offences were particularly serious. In regard to psychological adjustment, risk factors such as problems with self-awareness, problems with stress or coping, problems resulting from child abuse, attitudes that support or condone sexual violence and extreme minimisation or denial of sexual violence were all partially or possibly present. In regards to mental disorder, Dr Febbo noted the presence of sexual deviance and problems with substance use. The risk factor of psychopathy was partially or possibly present. There was no evidence of a current major mental illness or violent or suicidal ideation. In regard to social adjustment, Dr Febbo noted the presence of the risk factors of non-sexual criminality and problems with intimate relationships. Other factors such as problems with non-intimate relationships and problems with employment were partially or possibly present. In regard to manageability, Dr Febbo considered that the respondent had problems with supervision in the past. Problems with planning and problems with treatment were also partially or possibly present.
78 Dr Febbo said that the RSVP guide can assist with risk scenarios. In the respondent's case if he were to reoffend a future offending scenario would be similar to his previous offending. This could occur with the respondent finding himself in a situation where he is in contact with a young female. His previous offending suggests that he is capable of going to considerable lengths to offend against children. The offending is likely to be facilitated by alcohol or substance abuse. It is likely that the victim would suffer significant psychological harm. Another possible scenario is one similar to the respondent's first offence in 1990. In such a case, possibly disinhibited by use of alcohol or other substances, the respondent would impulsively offend against a stranger by overpowering her and then sexually assaulting her. In this scenario, in addition to considerable psychological harm, there is the potential for significant physical harm.
79 Dr Febbo reported that the following factors had been significant in the respondent's offending:
1. Mr Coffin's history is in keeping with longstanding sexual deviance and, in my opinion, he would fulfil the diagnostic criteria required for both a paraphilia not otherwise specified and paedophilia.
2. Alcohol and substance abuse has been significant. A number of Mr Coffin's sexual offences have occurred in the context of alcohol abuse.
3. I also noted the presence of significant personality pathology and Mr Coffin scored relatively highly on the psychopathy checklist revised. There are significant anti-social and borderline personality traits. The documentation suggests longstanding difficulties in self-esteem.
4. There has been evidence of considerable psycho-social instability. I noted that there was considerable turmoil including domestic violence in Mr Coffin's relationships.
80 There was some history and documentation to suggest that the respondent had suffered from a significant psychiatric disorder in the past, including the presence of psychotic systems. This had resulted in a period of hospitalisation. However, in Dr Febbo's view there was no real evidence that this disorder was significant in the offending or that the respondent suffered any major psychiatric disorder currently.
81 In conclusion, Dr Febbo was of the opinion that the respondent would be at high risk of further sexual offending if he was not subject to a detention or supervision order. Further, he was of the view that additional preparation was required before the respondent's risk of reoffending could be adequately managed in a community setting.
82 Dr Febbo stated that it was appropriate for the respondent to be allocated, and to engage with, a psychologist prior to his release. Counselling in this context needed to focus on his level of awareness about factors contributing to his offending and to developing strategies to manage those factors in a community setting. The counselling should also address alcohol and cannabis use. Dr Febbo was of the view that consideration should also be given to commencing the respondent on anti-libidinal medication.
Other medical, psychiatric, psychological or other assessments - s 7(3)(b)
83 Over the respondent's long period of incarceration he has been the subject of a number of psychological and psychiatric assessments. Reports of these assessments were included in the book of materials tendered on this application. They were made available to Dr Wojnarowska and Dr Febbo and have been taken into account by them in preparing their reports.
84 A report was also available from Ms Chantelle Place, a forensic psychologist employed in the Dangerous Sex Offender Psychology Team of the Department of Corrective Services. Ms Place also gave oral evidence at the hearing. Ms Place reviewed the respondent's treatment history. She concluded that despite engaging in a number of treatment programmes to address violent and sexual offending and alcohol and substance abuse, the respondent had continued to reoffend. She stated that his progress in previous treatment programmes had been impeded by a reluctance to discuss specific issues, such as his sexual interests, for fear of judgment from other group members and potential breaches of confidentiality. She considered that his outstanding treatment needs include addressing his deviant sexual interests, cognitive distortions, substance abuse and anger management.
85 Ms Place said that in the event that the respondent was made the subject of an order under the Act he would be assessed with a view to determining interventions and psychological management strategies appropriate to his circumstances. Subject to such an assessment, Ms Place said that individual psychological counselling could be made available in a prison context. The respondent could also undertake a more intensive alcohol abuse programme and, given the length of time which has now elapsed, would be considered suitable for re-entry in to an ISOTP.
The propensity to commit serious sexual offences in the future - s 7(3)(c)
86 There can be little doubt that the respondent has exhibited a propensity for committing serious sexual offences against children. While the respondent's pattern of offending cannot be said to be continuous, consideration must be given to his long periods of incarceration. What remains apparent is that serious sexual offending has occurred over a 12 year period and has persisted despite punishment and treatment.
87 Although the most recent offences are now sometime in the past, the respondent has admitted to continuing attraction to, and fantasies about, female children. It was suggested on his behalf that his frankness in regards to these matters was a positive rather than negative sign. Whilst it may be positive in indicating his willingness to be honest and to engage in a constructive way with future treatment, it is negative in that it indicates that the risk of reoffending remains a very real one.
Whether or not there is any pattern of offending behaviour - s 7(3)(d)
88 There is a pattern of offending behaviour, at least as regards the offending that occurred in 2000 and 2002. In those cases, the respondent targeted young children in their homes whilst they were sleeping. With one exception, all of the children were girls and of a similar age, between 10 and 13. Whilst none of this offending led to actual penetration there was an attempted act of penetration and in each case the activity ceased because the victims woke and resisted what was occurring.
89 The earlier offending, both in 1990 and 1995 - 1996, was different. The 1990 offence was a violent sexual assault that occurred in daytime. The victim in that case was significantly older than the children in the later offences. The respondent was, himself, a juvenile at the time. Other than the fact that alcohol appears to have been involved, it is difficult to draw any useful comparison between the 1990 offence and the later offences.
90 The 1995 - 1996 offences were also different. They involved an ongoing unlawful sexual relationship with an 11-year-old girl. Unlike the later offences, these offences were not opportunistic, rather they occurred over a significant period of time and involved the corruption of a child who was well-known to the respondent. In this case the offending progressed to acts of penetration, though there is no suggestion that force or threats were utilised. Other than confirming that the respondent has a longstanding sexual interest in female children it is difficult to draw any other useful comparisons between this offence and the later offences. It does, however, support an inference that in seeking sexual gratification from children he will not necessarily stop at touching.
The risk that a serious sexual offence would be committed if a continuing detention order or supervision order was not made - s 7(3)(h)
91 The psychiatric evidence is that the respondent continues to be at high risk of committing further serious sexual offences. This assessment of risk takes into account his continuing deviant sexual interest in children, his history of drug and alcohol abuse and his unmet treatment needs. Whilst he has undertaken a number of treatment programmes they have not been effective in reducing the risk of his offending to an acceptable level. It is apparent that from at least the time that he completed the ISOTP in 2007 the respondent had an identified unmet treatment need in respect of individual psychological counselling. Regrettably, that counselling has not been made available to him.
92 I accept the evidence of Dr Wojnarowska and Dr Febbo that the respondent's risk of reoffending is high. I also accept that his current treatment needs are such that there are no conditions that could be imposed on a supervision order that would reduce the risk of reoffending to an acceptable level.
93 The existence of unmet treatment needs will not always act as an impediment to release on a supervision order, it will depend upon the nature of those treatment needs and the extent to which they will have the effect of reducing risk. At present the risk of reoffending is high and the possible risk scenarios suggest that conditions would be unlikely to be effective in preventing that risk from being realised. The fact that the respondent's offending has occurred impulsively and that this is a reflection of his personality type means that it is more difficult to guard against the risk unless his ability to address the risk factors is enhanced. This is unlikely to be achieved without, at the very least, extensive individual counselling.
The need to protect members of the community from that risk - s 7(3)(i)
94 The respondent's previous sexual offending was of a diverse but serious nature. At its most serious it involved a violent sexual assault. Even accepting that the most likely form of reoffending would be indecent dealing with children, the offences would be nonetheless serious. Such offending in the past has involved considerable efforts to enter the homes of other people at night and to sexually abuse children asleep in their beds. There would be a real risk that if such offending occurred it would not necessarily stop with indecent dealing; it could progress to more serious acts of penetration. Given the likely age and vulnerability of the victims and the circumstances in which such offending would occur it would be likely to cause very considerable fear and psychological harm. There is clearly a need to protect members of the community from the risk that the respondent presents.
Any other relevant matter - s 7(3)(j)
95 As noted above, the proceedings were adjourned to enable the respondent to consult with doctors to determine whether he could undertake a course of anti-libidinal medication.
96 On 28 April 2014 the respondent was assessed by Dr Arian Cullen at Casuarina Prison. Dr Cullen noted that he suffers from adult onset diabetes, obesity, hypertension, hyper-cholesterolemia and moderately elevated blood pressure. Dr Cullen was of the opinion that due to the diabetes the use of anti-libidinal medication would not be appropriate as the medication in question is associated with the worsening of diabetes control. She recommended that the respondent's diabetes be reviewed at Royal Perth Hospital and that if possible he consult a dietician regarding a weight loss programme. She also suggested that he participate in an exercise regime.
97 At the time of the hearing no further information was available, though the respondent informed Ms Julie Debala, a Senior Community Corrections Officer of the Department of Corrective Services, that he was focusing on reducing his blood sugar levels and improving his physical health. It would seem from this that he wishes to pursue the option of anti-libidinal medication, but accepts that he has to address some personal health issues first.
98 It is not presently possible to determine whether anti-libidinal medication is a realistic option for the respondent. There appears to be a possibility that if he reduces his weight and improves his physical health by exercise, his diabetes may be brought sufficiently under control to allow for consideration to be given to anti-libidinal medication. Whilst he is motivated to pursue this course, how long it will take and what the outcome will be is uncertain. Nonetheless, it is to be hoped that he would be supported in his efforts to pursue this option since it is one that has been suggested by both Dr Wojnarowska and Dr Febbo.
99 The respondent could be assisted by being given access to a dietician, helped with developing an exercise programme and being permitted to consult with external doctors who would monitor his diabetes and prescribe the medication if appropriate. It is understood that prison doctors are unwilling to prescribe the medication, however it would be expected that if it was prescribed by an external doctor prison authorities would facilitate the dispensing of that medication. The respondent has independent means and is prepared to bear the significant financial cost of the medication.
Conclusion - serious danger to the community
100 The respondent presents as a high risk of committing further serious sexual offences if he is not subject to a continuing detention order or a supervision order. That risk is heightened because of:
• his unmet treatment needs in respect of sexual deviance and alcohol and drug use;
• the absence of any appropriate release plan.
101 There are no indications that the risk of reoffending has reduced notwithstanding that the last serious offences occurred in 2002. The existence of a high sex drive and continued attraction to, and fantasies about, female children indicate that the risk has not diminished over time.
102 The nature of the offences that are likely to be committed is a relevant factor to take into account. The risk is that any such offences would involve children and not be limited to children known to the respondent. Offending could occur impulsively and without overt warning signs. It could involve children sleeping in their own homes.
103 In these circumstances I am satisfied to a high degree of probability that there is an unacceptable risk that the respondent would commit a serious sexual offence if he was not subject to a continuing detention order or a supervision order. Accordingly, I find that he is a serious danger to the community.
Continuing detention order or supervision order?
104 In deciding whether to make a continuing detention order or a supervision order the paramount consideration is the need to ensure adequate protection of the community: s 17(1) and s 17(2).
105 When considering whether a supervision order would adequately protect the community it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure adequate protection of the community, the rehabilitation of the respondent and his care and treatment: s 18(2).
106 Conditions could be imposed that would limit the respondent's place of residence, his movements and his use of drugs and alcohol. However, the extent to which such conditions could adequately reduce the risk must be doubted. As Dr Wojnarowska noted, the likely risk scenarios are such that offending could occur notwithstanding the existence of such conditions. One of the critical factors in reducing risk is to ensure that the respondent's appreciation of risk factors and ability to self-manage them can be confidently relied upon. His unmet treatment needs mean that at this point it is not possible to have such confidence. Having said that, the respondent's positive attitude to treatment means that there are very good prospects of him reaching a point in the future where the risk could be managed effectively in the community.
107 There are other impediments to a community supervision order. A community supervision assessment was prepared by Ms Debala and she gave evidence at the hearing. The respondent had proposed that he would live with his mother and step-father in a regional community. The suitability of that plan is very doubtful. The respondent's mother is not aware of the details of his past offending and there are cultural impediments to her obtaining that knowledge. In those circumstances it may be doubted that she would be able to have an adequate appreciation of the risks of reoffending or the ability to act as a protective factor in respect of them. The respondent's brother also resides at the proposed residence. The brother is a reportable sex offender. This would make the residence inconsistent with any condition requiring the respondent not to consort with known sex offenders. The ability of GPS tracking to operate beyond the town in which he proposes to reside is not known. There is also limited police presence in the town which would make timely response to any breaches of conditions problematic.
108 In addition, given the respondent's current significant treatment needs it is very doubtful if those needs could be met in the regional centre. It was suggested that he could live in the metropolitan area for a period whilst he was undergoing treatment, but there is no suitable accommodation available in the metropolitan area as at the time of the hearing.
109 As I have noted there are positive indications that the respondent has realistic options for improving the likelihood of his release in the future. A plan put to a number of the witnesses in cross-examination was accepted as being appropriate and realistic. That plan included the following elements:
1. the commencement of individual counselling with a psychologist on at least a weekly basis;
2. a weight loss and exercise programme (with assistance from a dietician);
3. consultation with an endocrinologist (once weight loss is achieved) to determine suitability for anti-libidinal drugs;
4. commence taking anti-libidinal drugs (assuming suitability is confirmed) with an assessment being made after three months to determine the effect on the respondent's hormone levels and sexual desire.
110 In addition participation in a further ISOTP and an intensive substance abuse programme could also occur in conjunction with the above plan. This plan appears to be practical and to offer achievable objectives. It is a plan that is capable of being carried out in a prison context. In detaining the respondent in custody for treatment it is my expectation that the prison authorities would do everything reasonably possible to facilitate this plan.
111 It was suggested on behalf of the respondent, that in making a detention order I could nominate whether that order was for control, care or treatment. It was submitted that there was no need for him to be detained for the purposes of control and that an order confined to care and treatment would ensure that the prison authorities were focused on those objectives. There may well be an argument that the phrase 'control, care, or treatment' implies options. That view has been taken in some other cases: Attorney-General (Qld) v Francis [2006] QCA 324; (2007) 1 Qd R 396, Director of Public Prosecutions (WA) v Samson [2014] WASC 199. However, in the circumstances of this case it is not necessary for me to make a determination in that regard because I am satisfied that the risk of reoffending is such that it is necessary for the respondent to be detained in custody for his control, care and treatment.
112 In my view, there are no conditions that would either be effective or adequate to manage the risk that the respondent currently presents, or reduce it to an acceptable level. Having said that, there are options for his treatment whilst in custody that may have the effect of reducing the risk.
Conclusion
113 Pursuant to s 17(1) of the Act I order that Fabian Alec Coffin be detained in custody for an indefinite term for control, care and treatment.
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