Director of Public Prosecutions (WA) v Coffin [No 2]
[2015] WASC 436
•16 NOVEMBER 2015
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- COFFIN [No 2] [2015] WASC 436
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 436 | |
| Case No: | DSO:1/2014 | 8 SEPTEMBER, 5 & 27 OCTOBER 2015 | |
| Coram: | JENKINS J | 16/11/15 | |
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Expressly decline to rescind continuing detention order | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) FABIAN ALEC COFFIN |
Catchwords: | Dangerous sexual offenders Annual review Whether respondent remains a serious danger to the community Whether community would be adequately protected if respondent was released under a supervision order Lack of suitable accommodation |
Legislation: | Community Protection (Offender Reporting) Act 2004 (WA) Dangerous Sexual Offenders Act 2006 (WA), s 17, s 33 |
Case References: | Director of Public Prosecutions (WA) v Coffin [2014] WASC 305 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
FABIAN ALEC COFFIN
Respondent
Catchwords:
Dangerous sexual offenders - Annual review - Whether respondent remains a serious danger to the community - Whether community would be adequately protected if respondent was released under a supervision order - Lack of suitable accommodation
Legislation:
Community Protection (Offender Reporting) Act 2004 (WA)
Dangerous Sexual Offenders Act 2006 (WA), s 17, s 33
Result:
Expressly decline to rescind continuing detention order
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):
Director of Public Prosecutions (WA) v Coffin [2014] WASC 305
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
1 JENKINS J: The respondent, Fabian Alec Coffin, is the subject of a Continuing Detention Order (CDO) made by Hall J on 5 September 2014 pursuant to the Dangerous Sexual Offenders Act 2006 (WA) (the Act) s 17: Director of Public Prosecutions (WA)v Coffin [2014] WASC 305.
2 This is the first annual review of the CDO. These are my reasons for expressly declining to revoke the CDO. These reasons should be read together with Hall J's reasons.
3 When preparation for the first annual review commenced there was no accommodation in the community which had been identified as being definitely available to the respondent. Up until midway through the review there was a possibility that the respondent could live with another male in a town in the Pilbara region of Western Australia where his family live (the Pilbara town). Enquiries were also made in regard to whether he could obtain accommodation in the Perth metropolitan area. By the end of the review neither of these possibilities were available.
4 Instead, the respondent's mother nominated a family holiday home in regional Western Australia (the regional property) in which the respondent could live for a period of no more than, and maybe less than, 12 months until he found longer term accommodation. Thus, although the evidence canvassed the suitability of the first two options, these reasons will focus on the evidence relating to the regional property.
Evidence at the 2015 review
5 The relevant evidence consists of the book of material prepared for the first annual review of the CDO, selected material from the proceedings before Hall J, a Community Supervision Assessment Update (CSAU), minutes of interagency meetings, community corrections officers' notes, a Pathways Programme completion report and the oral testimony of authors of the various reports which are in the book of materials and the author of the CSAU.
6 The prison records produced by the Department of Corrective Services (DCS) in respect of the respondent's conduct and management over the last 12 months whilst he has been detained on the CDO indicate that the respondent has been the subject of six incident reports over the last 12 months. Three reports related to a possible assault on him and the other three reports resulted in him being charged with three assaults on other prisoners.
7 The first charge against the respondent was laid in respect of an incident which occurred on about 12 November 2014. It resulted in the respondent being confined to a punishment cell for a period. The second incident occurred on 20 May 2015 when the respondent struck another prisoner to the left side of the head, resulting in the victim having a reddened area to the side of his face. Again, the respondent was confined to a punishment cell. The third incident occurred on 29 June 2015, when the respondent punched another prisoner to the right side of the head.
8 Another document in the book of materials is a DCS individual management plan prepared for the respondent on 31 March 2015. It noted that the respondent was then housed in protection in unit 6 at Casuarina Prison. Unit staff described the respondent as a generally compliant prisoner although his manner could 'be surly and confrontational at times'. The report also noted that the respondent was then unemployed as he was residing in unit 6. Prison records showed that he had been employed in a variety of roles interspersed with periods of unemployment of up to one year.
9 The report also noted that the respondent last had a video link visit in October 2013 with his son. His mother had visited twice in the past three months but he had received no other social visits in the previous six months. He used the prison telephone to maintain contact with his family.
10 The respondent's then security rating was maximum. It was recommended that this be reduced to medium and that he remain at Casuarina Prison to facilitate programme participation and to facilitate visits. The reduction in the respondent's security rating was approved.
11 The respondent's computerised medical records from the prison are also included in the book of materials. In September 2014, there are entries which indicate that the respondent was involved in a fight with another prisoner or prisoners which resulted in him receiving an un-displaced fracture of a facial bone. In November 2014, there are also entries indicating that he was seen for an injury to his hand as a result of fighting. Other than those entries, there are regular entries relating to glucose testing because he is diabetic and a couple of entries relating to weight loss and exercise. In September 2014 his weight was recorded as 116 kg. In March 2015 this had increased to 121 kg.
Dr Febbo
12 Dr Febbo, consultant forensic psychiatrist, was appointed by the court to prepare a psychiatric report in respect of the respondent for the first annual review. Dr Febbo had previously seen the respondent and prepared a report in respect of him for the purpose of the hearing before Hall J.
13 Dr Febbo interviewed the respondent on 20 August 2015. Dr Febbo obtained an updated history from the respondent. He said that the respondent described his mental state as being relatively stable, although there were some intermittent periods of low mood related to both his current predicament and loss and grief issues.
14 The respondent reported to Dr Febbo that he had been seeing a clinical psychologist, Ms Chantelle Place, over the past year and had also completed a Pathways Programme to address alcohol and substance abuse.
15 The respondent said things to Dr Febbo to indicate that he has an increasing awareness of the link between his offending and alcohol abuse. He told Dr Febbo that he believes that he will be able to abstain from alcohol following release. He said that, through counselling, he had developed strategies to avoid alcohol.
16 The respondent was able to identify distorted thinking that led to his offending and was also aware of high-risk situations that he needed to avoid in order to avoid offending. The respondent acknowledged to Dr Febbo that the conflict with his former partner resulted in him becoming jealous, assaulting his partner and then trying to engage in sexual activity with underage girls.
17 The respondent reported to Dr Febbo that he continues to have sexual fantasies relating to underage girls, although he said that the ratio of 80% of his fantasies relating to adult women and 20% of his fantasies relating to underage girls was an improvement on the ratio prior to counselling.
18 The respondent told Dr Febbo that he believes that he is ready for release but he acknowledges that he continues to need counselling with Ms Place. At the time he was seen by Dr Febbo, the respondent was concerned that there was no accommodation in the community available to him. His first preference was to live in the Pilbara town where his family lives. He wanted to live with his older brother and be close to family, including his mother. He told Dr Febbo that he has considerably more support in that town than elsewhere. The respondent's second preference was to reside in Perth.
19 In relation to the prospect of a future relationship, the respondent told Dr Febbo that he is not keen to commence a new relationship. On the other hand, he is open to the possibility of a new relationship but knows that he will have to disclose his offences to that person.
20 Dr Febbo noted that over the preceding 12 months the respondent had significant psychological intervention to address alcohol and substance abuse, anger, aggression and his sexual offending. However, the respondent had not been able to proceed with anti-libidinal medication because he remains physically compromised with both diabetes and obesity.
21 As a result of his consultation with the respondent and from information which he (Dr Febbo) obtained from Ms Place, Dr Febbo said that he is impressed with the improvement that the respondent demonstrated in his awareness and understanding of the factors that relate to his sexual offending, including sexually deviant fantasies, relationship difficulties and alcohol abuse. As a result, Dr Febbo believes that the respondent's risk of committing serious sexual offences has decreased. In his evidence, Dr Febbo said it was difficult to say whether the positive changes were long-term changes but he thought they would persist in the medium to long term. Despite these improvements, Dr Febbo said that two areas remain of particular concern. First, the respondent continues to experience inappropriate sexually deviant fantasies, and secondly, from information obtained from Ms Place, the respondent continues to maintain inappropriate beliefs regarding the age of consent and the ability of an intoxicated woman to provide consent. Dr Febbo concluded that whilst the respondent's awareness has improved considerably, some attitudes that support or condone sexual offending have not shifted.
22 Dr Febbo said that he agrees with Ms Place's view that additional psychological input in a custodial setting is unlikely to decrease the respondent's risk of reoffending in the community. Further, it may have a negative impact with the respondent disengaging in treatment and developing a sense of hopelessness and frustration about his continuing detention.
23 Dr Febbo concluded that the respondent remains at high risk of further sexual reoffending if not for a CDO or supervision order. Any supervision order which is imposed by the court will need to take into account the following requirements and issues:
(1) ongoing intensive psychological input by Ms Place as the respondent moved from detention into the community. Dr Febbo said that the respondent's mental state may well destabilise in the process of him moving into the community, resulting in an escalation in maladaptive strategies and sexual deviance;
(2) continuing input to address the possibility of alcohol abuse within the community. Pharmacological strategies, such as Antabuse, should be considered if it is deemed that the respondent's physical condition does not contraindicate its use;
(3) the use of a selective serotonin reuptake inhibitor (SSRI), as the use of anti-libidinal medication is contraindicated;
(4) consideration of the respondent residing in Perth, as the level of monitoring and psychological input is likely to be more intense. In addition, the respondent is not acquainted with families who have children in Perth;
(5) structured activities, possibly with some form of employment, as boredom has been identified as a significant risk factor leading to offending;
(6) prohibition of unsupervised contact with children;
(7) GPS monitoring;
(8) urinalysis; and
(9) a curfew.
24 In his evidence, Dr Febbo said that he would prefer the respondent to take anti-libidinal medication rather than a SSRI as it is a more potent treatment. However, given that the respondent cannot be prescribed anti-libidinal medication because of his diabetes and obesity, a SSRI is an alternative, although less effective, treatment which may reduce his deviant sexual urges.
25 Dr Febbo also expanded on his recommendation that a pharmacological strategy, such as Antabuse, should be considered in order to deter the respondent from drinking alcohol. Antabuse, which is usually taken daily, causes autonomic unpleasant physical symptoms the more alcohol that the patient consumes. Generally, people taking Antabuse do not drink alcohol as a result. If the patient misses a dose or two, he will still have enough medication in his system for the unpleasant symptoms to occur should he consume alcohol. Dr Febbo's suggestion is that the respondent has supervised doses of Antabuse on three or four days of the week, so as to ensure that he has sufficient to produce the unpleasant physical symptoms if he drinks alcohol. Dr Febbo is of the opinion that unless the respondent's treating doctor thinks that Antabuse is inappropriate because of his other medical problems, Antabuse will be a very useful part of the respondent's management in the community.
26 In respect to Dr Febbo's opinion that the respondent has an increased awareness that his distorted thinking has led to his offending, Dr Febbo testified that examples of the respondent's greater awareness are that he is able to articulate an understanding that drunk or disabled females are possibly not able to give consent to sex and that it is inappropriate to have sex with children. He is able to articulate that he should not be involved in that sort of activity and that he should be involved in adult activities. Dr Febbo also thinks that the respondent knows that having sex with children will have lasting, negative consequences for the children.
27 Dr Febbo gave evidence that there is a conflict between what the respondent said to him about underage children not being able to consent to sex and what Ms Place had reported to him which was that the respondent still felt that underage children could possibly give consent to sexual activity. Dr Febbo said that as a result of what the respondent said to him, he was satisfied that the respondent knows that it is not permissible to have sex with an underage child. This understanding was confirmed by what the respondent said to Dr Febbo about his efforts to avoid seeing material which may stimulate sexual fantasies involving children.
28 Dr Febbo acknowledged that because the respondent has psychopathic traits, any assessment of him has to take into account that the history he gives may not be reliable and may be part of an attempt to manipulate the listener into having a positive view of him.
29 In relation to relationship issues, Dr Febbo testified that the respondent told him that he wanted to remain single and he understood that if he had a relationship he would be at risk of experiencing negative emotions, such as jealousy and anger, and resorting to alcohol use which would increase his risk of serious sexual offending.
30 In relation to the three incidents in prison over the last 12 months in which the respondent used violence against other prisoners, Dr Febbo said that the respondent is a particularly sensitive individual who has got significant paranoid personality traits. Thus, he takes offence relatively quickly and acts on impulse. Dr Febbo acknowledged that the respondent's preparedness to resort to violence and his difficulty in controlling his temper are risk factors. He said that the three incidents over the past 12 months might suggest that the respondent's ability to deal with stress and difficult situations remains maladaptive.
31 In his evidence, Dr Febbo confirmed that in his view the respondent's risk of serious sexual reoffending has decreased. He said that he can envisage a supervision order being crafted in such a way that it will further decrease the respondent's level of risk and potentially 'work' in the community. He said that in light of the respondent's long history of serious sexual offending and because his deviant sexual fantasies appear to be well entrenched, he is of the view that a community supervision order will have to be between five and eight years in length.
32 Dr Febbo sees advantages and disadvantages in the respondent residing in the Perth metropolitan area or in the Pilbara town. The disadvantages of living in the Pilbara town are that there may be the potential for increased stress due to family conflict and the potential for greater opportunity to offend because the respondent would know more people, including children. Also, he probably may not be able to access the same psychological assistance as he would in a metropolitan area.
33 The disadvantages of the respondent living in a metropolitan area are that he will not have family support and he is unfamiliar with city routines, such as public transport. Dr Febbo suggested that the respondent start off with living in a metropolitan area, seeing Ms Place face-to-face and consulting with a doctor to commence a SSRI and Antabuse. Although Dr Febbo does not rule out placement in the Pilbara town, Dr Febbo's preference is for the respondent to live, initially, in a metropolitan area. Unfortunately, the option of the respondent residing at the regional property did not arise in time for Dr Febbo to comment on its suitability.
34 In cross-examination, Dr Febbo acknowledged that the respondent's 'pathway' to sexual offending was strongly through deviant sexual fantasies and urges, the disinhibition caused by alcohol abuse and his impulsivity. However, his first serious sexual offence was accompanied by violence and therefore Dr Febbo said that it could not be discounted that a propensity to violence also was a cause of the respondent's serious sexual offending.
35 Dr Febbo said that because only one of the respondent's serious sexual offences included significant violence, the three assaults he committed in custody in the past 12 months did not cause him (Dr Febbo) great concern in relation to the respondent's risk of sexual reoffending. That was particularly so as the assaults occurred in the custodial environment. Dr Febbo agreed that the assaults occurred after the respondent was declared a dangerous sexual offender (DSO) and placed in the protection unit. As a consequence, Dr Febbo agreed with the respondent's counsel that the violence might not carry over into the community. After I indicated that the material showed that the respondent had committed assault and threatening offences at other times when he had been in custody, Dr Febbo said that the violence may be as a result of frustration and stress on the respondent's part and that those emotions may become worse if he is not released. Dr Febbo maintained that although the assaults committed in the past 12 months could not be completely discounted, in his view, they do not have significant weight.
36 Dr Febbo said that it is possible that if the respondent was placed on anti-libidinal medication in combination with psychological strategies, his deviant sexual fantasies and sexual urges would diminish to a degree where they would not be significant. However, he said that in the absence of anti-libidinal medication, he does not think the reduction in deviant sexual fantasies and sexual urges will occur. Consequently, he agrees that the psychological treatment goal was to achieve a situation where the respondent was able to live successfully in the community, offence free, whilst managing his deviant sexual fantasies and sexual urges. Although, Dr Febbo said that as the triggers to his serious sexual offending are understood and better managed, he anticipated there would be a decrease in the frequency and intensity of the respondent's deviant sexual fantasies and urges. Dr Febbo said that in the last 12 months the respondent has been taught strategies to deal with his impulsivity and those strategies made him manageable in the community.
37 Dr Febbo said that he is impressed with the respondent's honesty when he speaks to him and he believes that his honesty is a good thing which will help his management in the future. He believes that the respondent is relatively open with Ms Place too and that the respondent has a good therapeutic relationship with Ms Place.
38 In relation to the use of a SSRI, Dr Febbo said that in his view the medication is not a condition precedent to the release of the respondent on a community supervision order. It is Dr Febbo's view that none of the medications which the respondent takes or any of his medical conditions will prevent the prescription of a SSRI. He said that he had not discussed taking a SSRI with the respondent as a prescribing doctor would, and such a consultation has to occur before the medication can be prescribed.
39 Dr Febbo said that he got the impression from the respondent that he is very keen to be released from custody and is genuinely motivated to comply with any conditions of a supervision order.
40 Dr Febbo said that whilst, to some extent, it would be advantageous for the respondent to be in a relationship with an adult woman, such a relationship may highlight his paranoid personality traits. These traits are such that when the respondent was in a relationship in the past, he has felt a lot of jealousy and stress which ultimately led to serious sexual offending.
41 Dr Febbo said that he supports a condition on a supervision order that the respondent not have any unsupervised contact with a child under the age of 16 years. Such a condition, in Dr Febbo's view, will not need to prevent the respondent from forming a relationship either short or long-term with an adult woman without children or with children whom she does not see in the presence of the respondent.
42 Dr Febbo agreed that the respondent develops stress if he is over-managed and this characteristic should be borne in mind when deciding on the conditions which need to be placed on any supervision order.
43 Dr Febbo said that a curfew was essential in the earlier parts of the respondent's release, being in the first one to two years. Other than that, the respondent may only need a curfew if particular issues arose which appeared to require additional constraints being placed on the respondent.
Ms Rankin
44 Ms Vanessa Rankin, senior clinical psychologist, Forensic Psychological Service, DCS, prepared a dangerous sex offender treatment progress report in respect of the respondent. Ms Rankin reported on Ms Place's psychological counselling with the respondent.
45 Ms Rankin said that since the CDO was made, the respondent had attended 38 sessions of individual counselling with Ms Place. Ms Place reported that the respondent engaged well in the counselling, although some of his cognitive distortions had been difficult to shift. The respondent is able to identify his risk factors for serious sexual offending and generate appropriate risk management strategies, to manage thoughts and behaviours associated with high-risk situations which are potentially linked to offending behaviour. The respondent also has a good understanding of the supports which will be available to him in the community if he is released.
46 Ms Place had five sessions with the respondent about substance abuse in order to prepare him for his participation in the Pathways Programme. In these sessions, the respondent acknowledged that intoxication with alcohol had negatively impacted on his intimate relationships and had been a contributing factor in his sexual offending. The respondent also identified that he used cannabis to manage negative moods and emotions. He identified scenarios that are likely to increase his risk of substance abuse, and also identified some strategies for managing the situations. Ms Place noted that although the respondent expressed motivation to abstain from substance misuse, her opinion is that he may slip back into old patterns if he faces stressors that he perceives to be beyond his ability to manage.
47 Ms Place also had eight sessions with the respondent which addressed violence and anger management. Ms Place discussed the respondent's assault convictions with the respondent shortly after they occurred. She noted that whilst the respondent is able to reflect on why he behaved violently, he continued to justify his use of violence.
48 Ms Place had 20 sessions with the respondent discussing his sexual offending. Despite the respondent being amenable to challenging his dysfunctional beliefs, according to Ms Place, he still maintains the opinion that children are capable of an adult-like understanding of sex and he views them to be sexual beings from the age of approximately 13 years. He continues to assert that intoxicated women are capable of giving consent to sexual activity and he believes that healthy women are able to resist rape.
49 As with Dr Febbo, the respondent admitted to Ms Place that he has ongoing deviant sexual fantasies concerning sex with underage girls. He has been using a technique Ms Place has given to him to attempt to manage these fantasies and to reinforce appropriate fantasy material. Ms Place's opinion is that the respondent is motivated to change, but that as his pattern of arousal to young females is entrenched and he has used it as a coping strategy for most of his life, it is difficult for him to change.
50 Ms Place spent three sessions discussing risk factors and risk management strategies to prepare the respondent for possible release to the community. Although he is able to identify potentially unhelpful thoughts and feelings, he appears to be overconfident in his ability to avoid relapsing to substance misuse. The respondent can articulate substance misuse, pornography, deviant sexual fantasies, anti-social peers, and relationship difficulties as his main risk factors for reoffending if released to the community. He identifies his risk management strategies as keeping himself occupied, complying with his curfew, talking to supports and avoiding association with people who are under the influence of alcohol or illicit drugs. Ms Place considers the respondent's assertions that he will manage relationship issues by not forming an intimate relationship, to be naïve. Ms Place also noted that the respondent has the potential to react aggressively if he perceives his behaviour is being overly restricted by police or elders within his community, and that he will likely be sensitive to perceived scrutiny by those responsible for managing him on a supervision order.
51 Ms Place indicated that if the respondent were released on a supervision order, she would continue to have weekly sessions with him to work on his adjustment to the community and any relevant risk issues. The frequency of these sessions is likely to reduce over time, depending on the respondent's adjustment and exposure to risk related scenarios. Ms Place stated that if the respondent remains in custody, her sessions with the respondent are likely to reduce to fortnightly and then possibly monthly intervals, with a focus on general risk management issues and identified treatment targets, if necessary.
52 Ms Rankin also assessed the respondent in person. His presentation was similar to that reported by Ms Place although he was more reticent in openly discussing matters with Ms Rankin. This is understandable given that they do not have a continuing therapeutic relationship.
53 The respondent acknowledged to Ms Rankin that due to the length of his current imprisonment he probably feels more comfortable in prison than in the community. Therefore, the prospect of the release is daunting and he feels some anxiety about it. He discussed the support persons who will be available to him should he be released. He does not consider that he will be a danger to children if he is released into the community, although he feels uncomfortable at the prospect of being around children. He said that if a young girl approaches him, he would be friendly; 'have a yarn' then move on. He said that he will be mindful of what he said to the child, but he does not want to offend or hurt their feelings by ignoring them. Neither does he want to be accused of any untoward behaviour towards children.
54 The respondent's nominated support agency is Outcare Incorporated (Outcare). In respect of a possible release in the metropolitan area, the respondent told Ms Rankin that he is hopeful that Outcare may be able to provide accommodation options for him. Unfortunately, this is not the case. He said that if he is to remain in custody beyond this review, his preference is to transfer to Roebourne Regional Prison so he can have increased contact with his family.
55 Ms Rankin concluded that while it appears that the respondent has made good progress in working with Ms Place on agreed treatment goals, there are several areas where additional work is required to maximise the respondent's chances of successfully navigating any future release to the community. These areas are substance misuse, his propensity for violence and his continuing deviant interest in young girls. Ms Rankin noted that his response to the question of what he would do if young girls approached him, demonstrates that he still does not have an appreciation of the possible ramifications of engaging in conversations with young girls. Also, his release plans require further work to ensure that he has a structured day of activities so that he does not experience boredom, as he has identified this as a potential risk factor for sexual reoffending.
56 Ms Rankin said that if the respondent remains in prison, he would continue to have access to sessions with Ms Place although, as Ms Place indicated, these will likely reduce in frequency to fortnightly. These sessions will target some of the treatment areas that Ms Rankin has identified and strengthen the respondent's release plans in the lead up to his next annual review. She acknowledged that the respondent might benefit from the opportunity to transfer to Roebourne Regional Prison in the initial months after the conclusion of this review in order to facilitate contact with his family.
57 In her evidence, Ms Rankin clarified that the reason Ms Place does not believe that the respondent will benefit from a further intensive sex offender treatment programme is because his specific needs are better addressed in one to one counselling.
58 In relation to a comment in her report that Ms Place had said that although the respondent was motivated to abstain from substance misuse she thought that he may slip back into old patterns if faced with stressors that he perceived were beyond his ability to manage, Ms Rankin said that Ms Place's concerns were around family issues. It was concern about the respondent's ability to manage his own emotions if there is family conflict, given that substance abuse has been a strong coping strategy for him in the past.
59 Ms Rankin said that her concerns about the respondent's manageability on a community supervision order are because of his past history of reacting with violence or threatened violence when he felt that the authorities, in particular the police, were being intrusive.
60 Ms Rankin said that her discussions with Ms Place had been on the basis that the respondent, if released, would live in a metropolitan area. It was only after Ms Place went on leave that the option of living at the regional property became a possibility.
61 Ms Rankin testified that the respondent's comment to her, that the three assaults he had perpetrated in prison over the last 12 months were proof that he now had an ability to control his anger as he had not assaulted the victims to the same extent as he would have previously, was of concern to her. She said it illustrated an ongoing level of impulsivity. She said that she believes that the respondent is good in hindsight in examining the thoughts, emotions and patterns which led to him offending. However, she said that he is not able to do that prior to the offending event. That deficit concerns her particularly given that the respondent is over-sensitive to perceived threats.
62 The respondent told Ms Rankin that the most useful aspect of the Pathways Programme to him was that it had been a reminder not to dwell on negative things and to have a positive outlook. She said that she was not sure that this gain helps the respondent in managing his risk of serious sexual offending or prevents him from relapsing into alcohol abuse.
63 Ms Rankin testified that she believes that the respondent is strongly motivated to comply with the conditions of a supervision order because he would not want to risk a return to prison by breaching the conditions. Ms Rankin is concerned that his motivation to comply with the conditions of a supervision order may decline over time. The respondent told Ms Rankin that there was an element of excitement in being able to do something and not get caught for doing it. Ms Rankin is concerned that, in the longer term, this thought pattern might predominate over his motivation not to return to prison. That is especially so if he is leading a very structured routine existence and he does not have the freedom to indulge in what he regards as exciting activities.
64 Ms Rankin had discussed with the respondent how he thought he would cope with the intrusive requirements of a supervision order. The respondent told her that he did not think he would have any problems working with the Western Australian Sex Offender Management Squad (SOMS) as long as they maintain a professional relationship with him. It was in this context that he referred to having assaulted a police officer in the past. Ms Rankin said that this was an area of concern. That is, whether the respondent is able to translate his ability to reflect on his past behaviour into the ability to stop himself from offending in the future.
65 Ms Rankin testified that she thought that the respondent wants people to like him and he wants to be friends with people. However, he perceives that no one wants to be his friend and he feels lonely and isolated. Typically, in the past, one of his coping strategies for managing his feelings of loneliness and isolation has been to abuse substances which have had a disinhibiting effect leading to him committing serious sexual offences. She noted that over the past 12 months, his offending in prison reflects that he has been more likely in recent times to respond violently if he feels that people are disrespecting him. In Ms Rankin's view, feeling disrespected as well as feeling isolated and lonely, are the kind of emotions that are typically linked to substance abuse, which in turn, in the respondent's case, is linked to serious sexual offending. Ms Rankin's concern is that if the respondent is unable to manage the situational stress of being in a prison, it does not bode well for him moving into the community where there are far fewer immediate controls on his behaviour and the potential for increase in his feelings of stress.
66 In respect to the respondent's place of residence, Ms Rankin mentioned the desirability of him living in the Pilbara town. Having said that, she said that she saw his family as somewhat of a double-edge sword. She said that the respondent had mentioned numerous times to her that he has concerns about his ability to assert himself to family members where substance abuse was concerned.
67 Ms Rankin said that she believed that if the respondent remains in custody, Ms Place supports his temporary transfer to Roebourne Regional Prison so that he can have contact with his family. She believes that Ms Rankin will suspend therapy during that period and recommence therapy with him when he returns to Perth.
68 Ms Rankin agreed with Dr Febbo that the respondent's paedophilic interest in children is not something that is necessarily going to fully disappear, even with extensive therapeutic treatment. She said that psychological therapy was designed to manage the risks associated with his continuing paedophilic interest and to teach strategies to the respondent that he can put in place to avoid acting on his deviant sexual interests.
Ms Henshall
69 The hearing of the annual review was adjourned after Dr Febbo and Ms Rankin gave evidence. The purpose of the adjournment was to enable DCS to make further enquiries about community placement options for the respondent. After these enquiries were made, Ms Jane Henshall, senior community corrections officer (SCCO), Public Protection Unit, DCS, prepared a CSAU which revised and added to information which was contained in her earlier community supervision assessment.
70 Ms Henshall's initial report commenced by detailing Hall J's expectations that the prison authorities would do everything reasonably possible to facilitate the respondent's treatment plan. This plan included the commencement of individual counselling with a psychologist on at least a weekly basis; a weight loss and exercise programme; consultation with an endocrinologist (once weight loss was achieved) to determine the suitability for anti-libidinal drugs; and commencement of anti-libidinal drugs once suitability was confirmed.
71 Ms Henshall noted that the respondent's health records revealed that he had been engaged in ongoing discussions with medical staff regarding his diet. My assessment of the medical record is that these have been few, random and general in nature.
72 Ms Henshall said that the respondent has spoken to his SCCO regarding his motivation to lose weight. Again, my assessment of the SCCO records is that the discussions were few and the discussions were fairly general. Recent discussions indicate that he is not reducing his food intake as required to ensure that he loses weight. His commitment to exercise in the prison gym had also waxed and waned over the last 12 months. The upshot is that the respondent's weight has increased rather than reduced over the last 12 months.
73 Doctor Fitzclarence, the deputy director of Health Services, DCS, advised Ms Henshall that it would be negligent to put the respondent on any anti-libidinal therapy currently 'as the major risks to his health far outweigh any benefit to himself or to the community'. Apparently, the prison health services are not so concerned about the risk to the respondent's general health from his obesity. The prison records do not indicate to me that DCS has done much over the past 12 months to assist the respondent to lose weight.
74 Ms Henshall spoke with the respondent's mother who advised that the family did not have any accommodation options in the metropolitan area for the respondent but that she was willing to assist her son to locate a private rental in the metropolitan area. However, she wanted an indication as to whether the court would be prepared to release the respondent as she did not want to commit herself to the financial cost of renting a property only to find that the court would not release the respondent. I acknowledge that this is a difficult position for the respondent to be in. Understandably, his family do not want to expend money which may be wasted if the court refuses to release him. On the other hand the court is highly unlikely to release the respondent unless it knows the address of and type of accommodation in which the respondent will live so that the court can assess its suitability. Despite this conundrum, it is generally in the respondent's favour that both he and his family have access to resources that could be used to fund a private rental. A lot of DSOs are restricted entirely to public housing. The respondent's mother told Ms Henshall that once the respondent secured a private rental home he could make an application to a named Aboriginal trust, of which it seems he is a beneficiary, for rental assistance of up to $8,000 a year. This trust receives mining royalties and the respondent receives a royalty payment twice per year from the trust.
75 In respect to the respondent's assaults on others, Ms Henshall reported that during a case conference in June 2015, prison officers said that the respondent engaged well with other prisoners until knowledge of his offending became known. That is when the respondent began to be involved in altercations with others resulting in charges and his relocation to the protection unit.
76 The respondent told Ms Henshall that his assaults on others resulted from misunderstandings. She said that although the respondent did not discuss the first two assaults in great detail, it appears these occurred due to a perceived slight. On the third occasion, the respondent said he was touched 'on the waist' by a 'man rapist' and reacted in a violent manner. He informed Ms Henshall that upon reflection he could have dealt with these situations in a more reasonable manner.
77 Since Hall J's decision, the respondent has been tested twice for substances; on 5 March and 25 June 2015. Both tests resulted negative to alcohol and other substances. Ms Henshall notes that upon review of his medical record, it was noted that the respondent advised the medical officer on 2 January 2015, that he was 'committed to smoking less ganja' in the New Year. On 20 August 2015, the respondent confirmed to Ms Henshall that the last time he smoked cannabis was in November 2014.
78 In relation to potential supported accommodation, Ms Henshall reported that there was no accommodation available through the Dangerous Sexual Offenders Supported Accommodation Programme, which seeks to provide public housing to DSOs on supervision orders. The housing is provided by the Department of Housing to particular agencies who are contracted to DCS to then supply the housing and community support to particular DSOs.
79 Ms Henshall mentioned that there was a public housing property available for rental by a DSO. However, that property had been provided to Uniting Care West so that only a DSO whose nominated support agency was Uniting Care West could rent that property. Uniting Care West is not prepared to provide the property to a DSO unless it is the offender's nominated support agency and they have engaged with Uniting Care West for a minimum period of six months prior to their release. Even if the respondent switched to Uniting Care West, Uniting Care West would still require this six-month period before it would be prepared to decide to continue working with the respondent and to offer the property to him. It is highly likely that within that six-month period Uniting Care West will offer the property to another DSO. Ms Henshall acknowledged the inefficiency of the current system whereby accommodation could be available through the Dangerous Sexual Offenders Supported Accommodation Programme but the respondent is unable to access it because he had nominated a different service provider to the service provider who had access to that property. Ms Henshall said it was the first time she had come across the problem. She said that her manager was liaising with Uniting Care West and Outcare to determine how this problem, should it arise again, could be dealt with.
80 The respondent told Ms Henshall that he has approximately $14,000 in savings which he would be willing to use to fund private rental accommodation. Unfortunately, Outcare is not able to assist in locating private accommodation for individuals who are in custody. At the time of the hearing no private rental accommodation had been identified as being available to the respondent.
81 In August 2015, contact was made with Noongar Mia Mia Pty Ltd, an indigenous housing agency, regarding the possibility of assisting the respondent to obtain housing. An officer from the agency advised that they have no current vacancies and they do not assist people in custody, as they do not have a waitlist service to ensure housing is available upon release. Another housing service was contacted and they are also not able to assist individuals in custody. They also advised that there is currently a waitlist for assistance dating back to 2013.
82 Ms Henshall's assessment mentioned that should the respondent be released to the community he will be subject to reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA) (ANCOR), he will not be permitted, regardless of any supervision order, to consort with other convicted child sex offenders and he will be issued with a consorting notice to the effect. Upon any release to the community the respondent would be required to report to the officer in charge of SOMS within 48 hours of his release from custody. Thereafter, the respondent will have to report and receive visits from police at times and locations as directed by the officer in charge of SOMS. Ms Henshall recommended that in the event of the respondent's release on a supervision order, he be required to permit police officers to enter and search his residence for the purpose of monitoring his compliance with his obligations under the supervision order.
83 The respondent's counsel criticised the breadth of such a proposed condition. As I have decided not to rescind the CDO, it is not necessary for me to deal with this issue. Whether such a condition was required on a supervision order would depend on other circumstances such as who was living with the respondent and able to supervise his day-to-day activities and compliance with obligations under a supervision order.
84 In relation to prescribing a SSRI for the respondent, Ms Henshall said that the DCS public policy unit, which manages DSOs, is currently liaising with DCS health services to confirm if a prescription can be written whilst the respondent remains in custody. By the end of the hearing of the evidence at the annual review, neither the respondent's counsel nor I had been advised whether any progress had been made in this regard.
85 In relation to Dr Febbo's recommendation that the respondent take Antabuse to deter him from using alcohol, Ms Henshall said that the respondent would need to engage a local general practitioner to receive ongoing prescriptions.
86 In relation to global positioning system (GPS) tracking, Ms Henshall noted that GPS tracking has its limitations in that it cannot identify the people whom the respondent speaks to or the activities and actions in which he is involved. Ms Henshall recommended that as the respondent has been incarcerated for about 13 years and has led a highly structured lifestyle, a nightly curfew may be appropriate to provide him with stability and structure and to restrict his night-time movements in light of his prior offending behaviour.
87 Ms Henshall said that should the respondent be released on a supervision order, he would be closely managed and supervised by the members of the local risk management group whose members include but are not limited to police officers, community corrections officers, management staff from DCS and its psychologists.
88 Subsequently, Ms Henshall's CSAU explored the suitability of the respondent living in the Pilbara town or at the regional property, which is located in a semi-rural area. During the preparation of the CSAU, it was ascertained that there was no accommodation available to the respondent in the Pilbara town.
89 The respondent's mother informed Ms Henshall that the respondent could live at the regional property for six to 12 months, whilst he sought a private rental property. The respondent's mother and her husband, the respondent's stepfather, jointly own the regional property. The respondent's stepfather told Ms Henshall that he was reluctant to allow the respondent to reside at the regional property, but that he would allow it for a maximum of six months. He expressed concern about the respondent having inappropriate people stay with him at the property and he supported the condition on any supervision order which would prohibit other individuals from staying overnight at the property without prior approval.
90 The regional property is approximately 5 km outside of a local town of approximately 4,500 people. It is about 100 km from the closest regional centre. Nobody lives permanently at the regional property which is used as a holiday home by the respondent's mother and stepfather. Initially, the respondent would not have any transport available to him. He would need to walk into town or use the local taxi service. The taxi fare to the local town would cost approximately $20 one way. The applicant's counsel identified a pushbike as being an alternative form of transport for the respondent.
91 There is only one closely situated neighbour, an elderly female. Other neighbours live approximately 300 m or more away. The respondent's mother advised that she keeps alcohol on the premises, but she said that she would leave it in her bedroom and ask her husband to place a lock on the door so that the respondent would not be able to access it. The respondent will be expected to pay $100 rent per week.
92 On 18 September 2015, Bianca Chapman, a SCCO, and Jamilea McGregor, team leader, visited the regional property. The property was locked up and the officers were not able to enter it.
93 The residence is on a semi-rural block. There is a function centre within easy walking distance of it. The function centre appears to be fully licensed and to include holiday accommodation which caters for family holidays. The local town centre includes a shopping precinct, several parks, sporting facilities and public spaces which have the usual town facilities. There is one primary and one secondary school. The Western Australian Police indicated that some illicit drug activity occurs in the area.
94 A sergeant, four constables and a part-time customer service officer staff the local police station. There is limited police coverage outside of the usual working week. Night-shifts are only worked if required. The local police station works closely with neighbouring police stations which are 31 - 46 km away. Active monitoring of the respondent could not be guaranteed by the local police station. There may be a significant delay in attending to urgent calls outside of rostered hours at the police station.
95 Should there be any technical difficulties with GPS equipment or another emergency, it would take approximately one and a half hours for officers from the nearest regional centre to respond. Assistance of the local police would be essential to manage any emergency.
96 The officer in charge of the local police station advised that the regional property sits at the top of a gully which has a clear view over a nearby housing development. This includes the rear yards of other residential properties. It is in a semi-rural area with wooded bush blocks which are not well fenced. Therefore it is easy to walk through the area. The housing development is popular with families. The area is serviced by a school bus but after the children alight from the bus they walk home, unsupervised. Further, the area is popular with tourists and attracts families with children who are sometimes left unsupervised to enjoy the rural atmosphere.
97 Each fortnight, an officer from the regional centre's DCS Adult Community Corrections Office conducts supervision at the local police station. If the respondent lived at the regional property a SCCO would supervise the respondent. He may also be required to attend the regional centre for supervision. Urinalysis can be conducted at the local hospital, only between the hours of 9.00 am and 12 noon. There is otherwise minimal access to any other interventions in the local town.
98 The officers from the nearest regional centre's DCS Adult Community Corrections Office are concerned that the respondent will remain on his own at the home for the majority of the time. Therefore, isolation may be a problem if he does not have a viable mode of transport or a current motor driver's licence. In their views, there are few indigenous people and limited ethnic diversity in the area and, thus, the respondent may draw the local community's attention. This attention may limit his ability to engage in healthy social activities and may deter him from entering the community, even to obtain shopping. The impact on his re-socialisation and his mental health would require extensive support from the regional centre's DCS Adult Community Corrections Office. It is further noted, that should his status as a DSO become identified, any possible vigilante action will be difficult to manage due to the limited availability of police and Adult Community Corrections resources.
99 The respondent's mother is not overly concerned by these reservations. She informed Ms Henshall that the local town is an ethnically diverse community, and that it includes an Aboriginal community. She said that the area is a place of healing within which the respondent will be able to integrate. She agrees that there are no family or other support persons in the local town, however she mentioned a cousin who possibly resides in a nearby town should the respondent wish to explore that relationship.
100 Ms Henshall confirmed that the respondent's mother had offered to travel to Perth if the respondent was released on a supervision order. She has offered to stay with him for five to seven days to assist him to settle in. Other than that, she had told Ms Henshall that she travelled to the regional property approximately three to four times per year. Ms Henshall had not asked her whether she would make additional visits if the respondent were living there.
101 In relation to the relatively short and uncertain time that the regional property would be available to him, Ms Henshall said that if the respondent were released, he would need to liaise with the Department of Housing to make sure his listing with it was current. She said that there is a very significant waitlist for Department of Housing accommodation and so he could not rely on getting that accommodation. She said that DCS would need to work with the respondent to assist him to speak to real estate agents and other accommodation providers to see what private rentals were available within his price range. She said that DCS asks DSOs not to sign any lease agreements until DCS has had the opportunity to review and to approve them. Ms Henshall said that it was not unusual for DSOs to have to move accommodation and that DCS works with such people to manage the change. Although, I note that usually such DSOs are moving from public housing and there is no set time period within which they must move. In the respondent's case, he may be required to move quickly should his mother or stepfather require him to vacate the regional property within a set time period. This may mean that the ability to find suitable accommodation for the respondent would be comprised.
102 In relation to victims, there are no concerns in relation to victim contact if the respondent was to reside at the regional property.
103 In re-examination, Ms Henshall advised that if the respondent was released to live at the regional property, Outcare would not be able to assist him, as it is a metropolitan based service. However, the respondent would have the assistance of a SCCO, as well as his mother.
The law
104 The Act s 33 states:
Review of detention under continuing detention order
(1) When the court, on an application made under section 29 or 30, reviews a person's detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
(2) The court may, if it finds that the person subject to the order remains a serious danger to the community, either -
(a) expressly decline to rescind the order; or
(b) rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.
(3) In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.
105 Section 33 requires a judge to rescind the CDO if the judge does not find that the relevant DSO remains a serious danger to the community. If a judge finds that the DSO remains a serious danger to the community, the judge may either expressly decline to rescind the CDO, or rescind the CDO and make a supervision order.
106 In deciding whether to decline to rescind the CDO or make a supervision order, the judge is required to adopt the least restrictive alternative which is compatible with the protection of the community: Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297. The Act s 33(3) makes it clear that the paramount consideration is the need to ensure the adequate protection of the community.
Does the respondent remain a serious danger to the community?
107 The respondent's counsel did not dispute that the respondent remains a serious danger to the community.
108 I am satisfied on the basis of Dr Febbo's uncontroverted expert evidence, that the respondent remains a serious danger to the community.
Whether to expressly decline to rescind the continuing detention order or to rescind the order and make a supervision order?
109 The Director of Public Prosecutions (DPP) submitted that the CDO should not be rescinded because:
(1) the respondent continues to experience deviant sexual fantasies;
(2) the respondent continues to maintain inappropriate beliefs relating to the age of consent and other topics such as the ability of intoxicated women to consent to sexual activity;
(3) the respondent is not a suitable candidate for anti-libidinal medication, which if taken may reduce his risk of serious sexual offending to an acceptable level;
(4) there is an unacceptable risk that given the respondent's past history, his inappropriate beliefs and his self-reported high libido, that his internal controls will be insufficient to prevent him from committing serious sexual offences;
(5) the assaults committed by the respondent over the past 12 months support a view that he is unable to control his impulses generally and his impulse to act violently, particularly; and
(6) the regional property is unsuitable because of its location and other limitations.
110 The respondent submits that I should accept Dr Febbo's evidence that a well-crafted supervision order will adequately protect the community from any risk he poses, given that he has made significant progress over the past 12 months and that the witnesses agreed that he is motivated to comply with the conditions of a supervision order. He says that the assaults he committed over the past 12 months should not deter me from making a supervision order as they correlate with the time that other prisoners found out that he had been declared a DSO and were a result of the attention he then received from other prisoners.
111 The respondent submits that there is a risk that the gains he had made over the past 12 months could be lost if he remains in custody, without hope of release.
112 The respondent acknowledges that the regional property is not ideal but says that conditions on a supervision order, which required him to live there initially and to comply with other strict conditions, would protect the community from unacceptable risks. The respondent says that although he would be living alone at the regional property, his mother would support and sometimes visit him. He would also have the support of community corrections officers.
113 My decision as to whether it is appropriate to rescind the CDO must start with a consideration of the nature of the respondent's risk of serious sexual offending. This, in turn, has to be considered in light of the respondent's antecedents, in particular his history of sexual offending and his responses to interventions to try and stop him from committing such offences.
114 Hall J summarised the respondent's history of sexual offending in the following terms:
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.
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.
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.
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.
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.
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.
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 fly screen 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.
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.
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.
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.
...
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 [34] - [44].
115 Thus, between 1990 and 2002 the respondent committed sexual offences against 10 children and young people aged between 10 and 18 years of age. The respondent's offending history shows that he has had a sexual interest in older children since he was 17 years of age. The first serious offences were accompanied by significant violence. However, most of his offending targeted sleeping younger children and were not accompanied by overt violence. The respondent's victims included strangers and children known to him. They were often committed when the respondent was intoxicated and when he was under stress. The respondent showed considerable persistence in his offending. He was not deterred by being initially thwarted.
116 The evidence indicates that his deviant sexual interest in children persists to today despite his and others efforts to address the causes of his offending. Those efforts included:
(1) 1997-1999 - a pre-release sex offender treatment programme. The completion report stated that the respondent recognised the inappropriateness of his behaviour and had 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 reoffending in a sexual manner. He reoffended after completing this programme;
(2) 2003 - partial completion of an Indigenous Men's Managing Anger and Substance Use Programme (IMMASU);
(3) 2005 - a Reasoning and Rehabilitation Programme. 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;
(4) 2006 - 2007 - an Intensive Sex Offender Treatment Programme (ISOTP). The completion report stated that he demonstrated a willingness to explore issues associated with his offending behaviour and showed some understanding of the causes of that behaviour. Nonetheless, he appeared to maintain a number of attitudes which supported his offending behaviour;
(5) 2009 - an IMMASU 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;
(6) 2015 - the Pathways Programme. The completion report stated that the respondent was an active group member who participated well. His treatment needs were identified as substance use issues, emotional management, problem solving and communication/relationships. During the programme he gained insight into the impact his substance use has had on his life, his family and the victims of his offences. He was able to identify high-risk situations and to develop strategies to manage these situations. He acknowledged that impulsivity was an issue for him and the report said that further work is required in this area. The report also said that although the respondent appears to be genuine in his desire to abstain from alcohol and cannabis, the challenge for him will be his commitment to this decision upon his release from prison and his ability to implement strategies that he has learned to assist him in remaining firm in his resolve; and
(7) 2014 - 2015 - one to one counseling with Ms Place, as detailed earlier in these reasons.
117 Given the time the respondent has had to mature and change during the last 13 years in prison, Dr Febbo's evidence and the positive effect of psychological treatment from Ms Place over the last 12 months, there are reasons to feel optimistic about the respondent's ability to live offence-free in the community. However, as Hall J noted, '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'. This is particularly so given the respondent's continuing sexual interest in children. Further, given the comment in the Pathways completion report about more work needing to be done in respect of the respondent's impulsivity, which is confirmed by his history of committing multiple physical assaults since he was declared a DSO, there are also reasons for me to doubt that the respondent is able, when under stress, to implement the strategies which he has learned to avoid offending of any type. Despite the gains which have been made over the past 12 months, I am of the opinion that if the respondent was living in the community there would be a significant risk that he would commit serious sexual offences against an older child or children. Any such offence would likely be committed when the respondent was under stress and had been consuming alcohol or other substances.
118 Although Dr Febbo does not place great weight on the assaults which the respondent has committed over the past 12 months, I do not think that they can be readily discounted. The fact that the respondent retains the propensity to resort to violence when he becomes stressed and frustrated does not give me confidence that he will be able to comply with the strict provisions of a supervision order, which are very likely to cause him stress and frustration.
119 Despite the controls imposed on the respondent in the custodial environment, the respondent has committed three assault offences in prison over the past 12 months. This does not indicate to me that the respondent has been able to successfully manage his non-sexual violent impulses. The fact that he has this maladaptive response to stress causes me to doubt whether he will be able to consistently implement the strategies he has learned to avoid serious sexual offending. Before he is released from prison the respondent needs to show that he can manage his impulsivity and remain offence-free in the prison environment.
120 Given these concerns I am also of the opinion that it is important for the respondent to commence a SSRI before he is released. Despite Dr Febbo's opposing view, I do not think that it is appropriate for this to occur after his release. Prior to his release I want to be satisfied that the respondent's risk of committing serious sexual offences can be reduced by such medication.
121 Further, I am of the view that the respondent should be assessed for his suitability for taking Antabuse or a similar product before the issue of his release is determined and not afterwards. I consider that it would be a very important part of a supervision regime to reduce the respondent's risk of serious sexual offending to an acceptable level.
122 Even if there were not these impediments to the respondent's release, there are deficiencies in the proposed accommodation at the regional property which cause me not to rescind the CDO at this review. The overriding problem is the isolation of the regional property. This has the following consequences:
(1) the respondent would be living alone and therefore unsupervised on a day-to-day basis. As most of his offending has occurred at night, it is important that the respondent live with someone who can report if he drinks alcohol or breaks his curfew and, hopefully, deter him from doing so;
(2) the police response to the report of a breach of his curfew or other conditions of a supervision order may not be timely;
(3) Outcare would not be available to support the respondent and there is no permanent community corrections officer in the local town; and
(4) the respondent would be isolated from activities that would occupy his time productively and people with whom he could have positive relationships.
123 I am also concerned about the limited time that the regional property may be available to the respondent. Although many DSOs on supervision orders change places of residence, without any involvement of the court, the overwhelming majority of such changes occur without a time limit on moving from the original approved accommodation. In this case, the respondent's stepfather may insist that the respondent leave the regional property, even if there is no other suitable accommodation available to the respondent. This could result in the community not being protected.
124 In reaching my decision not to rescind the CDO, I have taken into account that the alternative to the respondent being released on a supervision order is for him to remain in custody on a CDO. I acknowledge that this may result in some of the treatment gains made over the last 12 months being lost. I have factored this into my consideration of the need to ensure adequate protection of the community. However, it is my view that there are still positive gains that the respondent can make over the next 12 months that will enhance his chances of being released in the future. This prospect outweighs the possibility of him regressing.
125 I have also taken into account, as I have noted in another case, that despite not being a sentenced prisoner, whilst on the CDO the respondent will be subject essentially to the same punitive regime as a sentenced prisoner. In my opinion, most DSOs on CDOs should be detained separately to sentenced prisoners and be subject to a regime which protects the public and provides them with appropriate treatment. Even though such a regime is not available to the respondent, I consider that not rescinding the CDO is the least restrictive result which is consistent with the protection of the community.
The next 12 months
126 Enquiries to find suitable accommodation, which takes into account my comments about the regional property, should continue.
127 The respondent should make it his goal not to commit a prison offence before the next review as this will support a view that he has learned to control his impulsivity and is able to implement strategies to prevent offending, both in custody and in the community.
128 To support the respondent in this goal, it should be ascertained whether there is a programme which the respondent can do to address his impulsivity and further address issues which are related to it.
129 The respondent should continue to receive psychological intervention, even if at a reduced frequency, to assist him to address his impulsivity and substance misuse, to learn that violence is not a justifiable response to what he regards as provocative behavior by the victim and to continue to reduce his deviant sexual interests.
130 The respondent should be assessed for and commenced on a SSRI so that at the next review it can be known whether it is a suitable treatment for the respondent.
131 The respondent should be assessed for Antabuse therapy so that at the next review it can be known whether it is a suitable treatment for the respondent.
132 The respondent should continue to be given assistance to lose weight and to exercise. The respondent should be spoken to about the use of his own funds to consult a dietician and to obtain a diet meal plan which is suitable for a diabetic who is in custody. This should be facilitated if he wishes by his funds for this purpose or if funds are available from another source.
133 A temporary transfer to another prison so that the respondent can have more contact his family should be facilitated.
Conclusion
134 I expressly decline to rescind the respondent's CDO.
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