Director of Public Prosecutions (WA) v Comeagain [No 3]
[2012] WASC 245
•6 JULY 2012
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- COMEAGAIN [No 3] [2012] WASC 245
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 245 | |
| Case No: | MCS:15/2008 | 22-23 MAY & 27-28 JUNE 2012 | |
| Coram: | COMMISSIONER SLEIGHT | 6/07/12 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Expressly decline rescission of continuing detention order | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) PATRICK ALFRED DENNIS COMEAGAIN |
Catchwords: | Criminal law Dangerous sexual offender subject to continuing detention order Third annual review Turns on own facts |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17, s 33 |
Case References: | Director of Public Prosecutions (WA) v Comeagain [2008] WASC 235 Director of Public Prosecutions (WA) v Comeagain [No 2] [2011] WASC 16 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
PATRICK ALFRED DENNIS COMEAGAIN
Respondent
Catchwords:
Criminal law - Dangerous sexual offender subject to continuing detention order - Third annual review - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17, s 33
Result:
Expressly decline rescission of continuing detention order
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Ms L D O'Connor
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 Comeagain [2008] WASC 235
Director of Public Prosecutions (WA) v Comeagain [No 2] [2011] WASC 16
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206
(Page 3)
1 COMMISSIONER SLEIGHT: This is an application for the third annual review of a continuing detention order made under the Dangerous Sexual Offenders Act 2006 (WA)(the Act). On 22 October 2008, McKechnie J made a finding that Mr Comeagain was a serious danger to the community within the meaning of s 7 of the Act and made an order pursuant to s 17 of the Act that Mr Comeagain be detained in custody for an indefinite term (a continuing detention order): Director of Public Prosecutions (WA) v Comeagain [2008] WASC 235.
2 Under pt 3 of the Act, a continuing detention order is to be reviewed annually. Pursuant to s 33(1) of the Act the court must rescind a person's continuing detention order if it does not find that the person subject to the order remains a serious danger to the community. Pursuant to s 33(2) of the Act, the court may, if it finds the person is still a serious danger to the community, either decline to rescind the detention order or replace it with a release order subject to conditions (known as a supervision order). Pursuant to s 33(3) of the Act the paramount consideration is the need to ensure adequate protection of the community.
3 The continuing detention order was reviewed and expressly not rescinded by Murray J on 17 December 2009; and further reviewed and expressly not rescinded by Blaxell J on 25 January 2011: Director of Public Prosecutions (WA) v Comeagain [No 2] [2011] WASC 16.
4 In this matter counsel for Mr Comeagain concedes that Mr Comeagain remains a serious danger to the community. The material before me clearly establishes this fact. Accordingly I make a finding that Mr Comeagain remains a serious danger to the community within the meaning of the Act. The issue in this application then is whether I should leave the detention order in place or replace it with a supervision order.
5 The hearing of this review was heard over four days, being 22 May, 23 May, 27 June and 28 June, 2012.
6 For the purpose of this review three books of material have been tendered by consent plus the book of material tendered in the proceedings before McKechnie J in 2008. The books of material include up to date psychiatric reports of Dr Adam Brett dated 27 April 2012 and Dr Bryan Tanney dated 8 May 2012. I have also heard oral evidence from Dr Bryan Tanney, Dr Adam Brett, Ms Wendy Wager (Specialist Counsellor and Psychologist), Ms Tina Marley (Psychologist), Ms Alma Kenworthy (Sentencing Manager), Ms Heather Harker (Deputy Commissioner of Department of Corrective Services) and Ms Tanya Elliott (Senior
(Page 4)
- Committee Corrections Officer). Also a copy of the transcript of the proceedings before Blaxell J on the second annual review was tendered into evidence.
Background
(a) Childhood
7 Mr Comeagain is 38 years of age. Mr Comeagain was given up by his biological mother when he was an infant. Mr Comeagain had a childhood characterised by neglect, instability of care, alcohol abuse by caregivers and frequent institutional placements as a State ward. He had at least 22 placements in foster homes or institutions. He reported suffering extensive physical and sexual abuse across childhood and adolescence, reporting few positive role models.
(b) Prior offending
8 Mr Comeagain has a significant history of serious sexual offending. Mr Comeagain's first serious sexual offence was committed on 8 November 1987 when he was 14 years of age. This offence involved Mr Comeagain vaginally and orally sexually penetrating a 14-year-old girl.
9 Mr Comeagain's second serious sexual offence occurred on 4 February 1990 when he was 17 years of age. On this occasion Mr Comeagain was offered a lift in a motor vehicle driven by 28-year-old female victim. Mr Comeagain punched the victim, pulled her hair and trapped her in her vehicle. Mr Comeagain then anally, orally and vaginally penetrated the victim and drove off with the victim still in the vehicle. The victim escaped by leaping from the vehicle whilst it was reportedly travelling at 80 kph.
10 On 8 November 1994, when 21 years of age, Mr Comeagain committed another serious sexual offence by sexually penetrating a 9-year-old female relative anally, vaginally and orally.
11 On 16 December 1999 Mr Comeagain committed another serious sexual offence. On this occasion he entered a house and trapped a woman who had asked him to leave. Mr Comeagain threw the victim to the ground, threatened her and dragged her by her hair into the bedroom where he sexually penetrated her with his fingers and then his penis.
12 Thirty seven days later, on 22 January 2000, Mr Comeagain committed another serious sexual offence. On this occasion
(Page 5)
- Mr Comeagain was invited back to the house of a male and female he met. The male left the house for a short period and when alone with the victim Mr Comeagain made sexual advances towards her. When asked to stop Mr Comeagain pushed the victim onto a mattress and anally penetrated her.
13 The offence committed on 16 December 1999 occurred only five weeks after Mr Comeagain had been released on parole in respect of previous sexual offending.
14 Mr Comeagain has also committed a variety of offences of a nonsexual nature.
15 In addition to the offences for which he has been convicted, according to a report of Ms Julieanne Davies (Pychologist) dated 13 July 2000, Mr Comeagain disclosed that he had committed many offences against women who were intoxicated and also against children. During a final interview with Ms Davies in July 2000 Mr Comeagain disclosed that he had sexually offended against 41 victims including two males that he had not been convicted for.
(c) History of drug use
16 Mr Comeagain has an entrenched drug use problem whilst in prison. It also should be noted that, on the last three occasions Mr Comeagain committed serious sexual offences for which he has been convicted, he was under the influence of cannabis at the time of the offences.
17 In June 2011, Mr Comeagain completed a Pathways Programme. A Pathways programme is a 100 hour structured programme, which provides treatment to individuals who have a history of offending behaviour and substance use problems. In a completion report dated 4 August 2011 the authors of the report stated:
Mr Comeagain presented as having reached the contemplation stage of change in regards to his cannabis use, identifying it as problematic in that he was aware he would not be released to the community unless he was prepared to cease. Across the course of the program, Mr Comeagain reiterated his intention to cease cannabis use, reporting this as his choice, on a number of occasions (page 3). (emphasis added)
18 During the Pathways Programme, over a period of approximately four months between 3 March 2011and 21 June 2011, Mr Comeagain remained drug free. However, since the completion of the programme,
(Page 6)
- Mr Comeagain has recommenced to use drugs whilst in prison. Mr Comeagain has pleaded guilty to the following occasions of drug use:
• 15 July 2011 - cannabis
• 5 January 2012 - buprenorphine
• 11 January 2012 - buprenorphine
• 4 March 2012 - cannabis and buprenorphine
• 13 April 2012 - cannabis and buprenorphine
19 There are outstanding charges relating to alleged positive drug tests on 21 October 2011, 4 November 2011, 12 November 2011, 18 November 2011 and 14 December 2011. A positive drug test result was obtained for 11 May 2012.
20 This continuing drug use by Mr Comeagain has occurred notwithstanding that Mr Comeagain understands that his continuing drug use reduces his chances of release on a supervision order. On the second annual review, Blaxell J in his decision in Director of Public Prosecutions (WA) v Comeagain [No 2] stated:
I add that the quickest path towards Mr Comeagain's future release into the community is for him to abstain from cannabis and thus qualify for the substance abuse and sex offender's treatment programs [28].
21 Mr Comeagain's participation in the Pathways programme is not the only attempt by Mr Comeagain to address his drug dependency. In November 2009, Mr Comeagain voluntarily attended a Prison Addiction Services Team (PAST) for 10 sessions. In 2010, on the recommendation of PAST, Mr Comeagain tried antidepressants, but stopped using the medication due to side effects. On 19 January 2012 Mr Comeagain commenced participation in a methadone programme but withdrew from this on 25 January 2012.
(d) Past sexual offender treatment
22 Mr Comeagain completed an Intensive Sex Offender Treatment Programme in 1999. On completion of the programme it was reported that Mr Comeagain 'had made considerable gains from treatment and his risk of reoffending (both sexually generally) has been reduced to medium'. On being released into the community and two days after attending his first community therapy session, Mr Comeagain reoffended
(Page 7)
- by committing the offence of 16 December 1999 described earlier in this decision.
23 As a result of Mr Comeagain's convictions for the offences committed in 2000, Mr Comeagain received a sentence of 12 years imprisonment without parole. During the 12 years of his sentence, Mr Comeagain did not participate in any further sex offender treatment programmes. Mr Comeagain declined to participate in an Intensive Sex Offenders Treatment Programme in February 2002, October 2007 and December 2008. However, Mr Comeagain engaged the services of a clinical psychologist (Mr Annand Kamalesh) in 2007 and 2008 who conducted a series of 15 individual counselling sessions.
24 In February 2009 Mr Comeagain said he was willing to engage in an Intensive Sex Offenders Treatment Programme. However after commencement of the programme, Mr Comeagain was removed from the programme due to the use of illicit substances.
25 Mr Comeagain underwent additional counselling with Ms Wendy Wager, psychologists, from 28 February 2011 to 16 August 2011. There were eight separate sessions of counselling generally occurring at three-weekly intervals. The counselling was meant to be directed to Mr Comeagain's victimisation as a result of his traumatic childhood. The counselling was generally viewed as unsuccessful. In the report dated 12 January 2012 Ms Wager stated:
While Mr Comeagain demonstrated willingness to recount acts of abuse perpetrated upon him, he seemed reluctant to discuss their emotional impact on himself. His motivation for avoiding such discussion seemed related to a disinclination to allow himself to feel emotionally vulnerable in a custodial setting (page 1).
26 In oral evidence, Ms Wager stated that only two sessions of the counselling was directed towards victimisation. The reason for this was that other issues arose with Mr Comeagain which caused the counselling to be directed to other issues.
27 Mr Comeagain also was seen by Ms Cinzia Zuin (Psychologist) on two occasions (2 September 2011 and 3 October 2011). In a report dated 18 October 2011, Ms Zuin stated that sexual victimisation was only one of 28 relevant risk factors and may not be a primary or singular factor in understanding Mr Comeagain's pathway to sexual offending as an adolescent. Ms Zuin expressed the opinion that there were more pressing issues in terms of Mr Comeagain's treatment focus than victimisation.
(Page 8)
28 Mr Comeagain commenced a further Intensive Sex Offender Treatment Programme on 12 December 2011 but was expelled from the programme on 24 January 2012 for illicit drug use. The circumstances of this non-completion require some elaboration. In 2011 Mr Comeagain was classified as a maximum security prisoner and held at Casuarina Prison. In 2011 the Intensive Sex Offender Treatment Programme was conducted at the Bunbury Regional Prison. To enable Mr Comeagain to participate in the programme he was transferred from the Casuarina Prison to the Bunbury Regional Prison. The Bunbury Regional Prison is a medium security prison, but has a maximum security facility. Mr Comeagain was escorted daily from the maximum security facility to the medium security section of the prison to participate in the programme. At the end of each day he was escorted back to the maximum security facility.
29 The Department of Corrective Services has a condition attached to participation in the Intensive Sex Offender Treatment Programme that the participants do not use illicit drugs. On 5 January 2012 Mr Comeagain gave a positive test for buprenorphine. As a result of this he was issued with a warning notice and required to sign a revised contract setting out conditions for his participation in the Intensive Sex Offender Treatment Programme. The new contract, which he signed on 10 January 2012, contained tighter controls concerning access to drugs and included a provision that if there was any further indication of drug use, Mr Comeagain would be dismissed from the programme. On 11 January 2012 a positive result for the use of buprenorphine was obtained but it was not clear as to how far back this positive test indicated the use of the drug. Also on 21 January 2012, Mr Comeagain gave a positive result for cannabis use. Mr Comeagain disputed that he had used cannabis and it has subsequently been ascertained that the test result is unreliable. However, on the basis of the indication of a positive result for cannabis on 21 January 2012, Mr Comeagain was expelled from Intensive Sex Offender Treatment Programme and relocated back to Casuarina Prison. The notification of Mr Comeagain being expelled from the programme coincides with Mr Comeagain's decision to cease participation in the methadone programme.
30 At the time of expulsion from the Intensive Sex Offender Treatment Programme Mr Comeagain had completed 42 hours of the planned 321 hours of the programme. The early termination of Mr Comeagain's participation in the programme meant that Mr Comeagain did not have the opportunity to demonstrate any significant treatment gains. A 'Program Non-Completion Report' states that Mr Comeagain whilst on the
(Page 9)
- programme had completed all assignments and written work asked of him and had been a valuable group member who was observed to support other group members. The report concluded Mr Comeagain would benefit from another opportunity to engage in the programme should he be able to refrain from drug use.
31 After Mr Comeagain was returned to Casuarina Prison he was offered individual counselling sessions with a male psychologists, Mr Dylan Galloghly. The counselling was intended to address the issues underpinning Mr Comeagain's ongoing substance use and related self-defeating behaviour. Mr Comeagain advised that he did not wish to work with a male psychologist, however at that time there were no female psychologists available. Eventually Mr Comeagain agreed to be seen by Mr Galloghly on three occasions but after these three occasions Mr Comeagain did not wish to continue further individual counselling with Mr Galloghly.
Community Supervision Assessment report
32 Ms Tanya Elliott (Senior Community Corrections Officer) gave evidence relating to a Community Supervision Assessment report dated 11 May 2012 dealing with what arrangements are proposed if Mr Comeagain is released on a supervision order.
33 Mr Comeagain's proposal is that he will reside with Ms Dianne Winter. Ms Winter formed a relationship with Mr Comeagain approximately 11 years ago when Ms Winter was employed with the Aboriginal Legal Service. She has been employed for almost two years with RUAH which is a community support service assisting disadvantaged members of the community.
34 Ms Winter is reported as stating she is committed to supporting Mr Comeagain and will transport him to and from all required appointments, despite her full-time employment obligations. Ms Winter currently resides in a semi-rural setting but proposes to change her address. Ms Winter has kept the Department of Corrective Services fully informed of the proposed changes.
35 Ms Winter has stated that she would recognise any signs of Mr Comeagain relapsing into illicit drug use, alcohol or other changes in his behaviour; and would not hesitate to contact his supervising officer to provide assistance.
(Page 10)
36 Ms Elliott in her evidence stated that her dealings with Ms Winter led Ms Elliott to the conclusion that Ms Winter was a genuine person and was a positive factor in the arrangements for Mr Comeagain if he should be released into the community.
37 In her report on 11 May 2012, Ms Elliott stated that Mr Comeagain understands the importance of remaining absent from drugs in order to successfully complete the Intensive Sexual Offender Treatment Programme. The report stated as follows:
He added that not knowing when or if he is going to be released is distressing, to use his words 'prison life is brutal' and he contended that drugs enable him to cope. When discussing motivators for him to cease illicit drug use, he reiterated 'as I am unsure if I will be released, why should I stop using' (page 8).
38 Mr Comeagain stated that if he were to be released he had no intention to immediately obtain employment due to being unskilled as result of his lengthy periods of imprisonment. He proposes to seek pension benefits through Centrelink. He proposes to stay at home and paint and hopefully earn some income by selling his artwork.
Psychiatric evidence
(a) Dr Bryan Tanney
39 Dr Bryan Tanney was first requested in 2008 to see Mr Comeagain to prepare a psychiatric report pursuant to s 37 of the Act. On that occasion Dr Tanney interviewed Mr Comeagain on five occasions. Dr Tanney diagnosed Mr Comeagain as suffering from a psychopathic personality disorder. In a written report dated 15 August 2008, Dr Tanney concluded as follows:
From all measures, Mr Comeagain is at 'High' likelihood of serious sexual re-offending against adult women with accompanying violence within the next five years or sooner, should no further intervention have taken place. The reoffending is most likely to be opportunistic and unpredictable at the actual event, and no consistent risk scenario can be stated. Concerns about his manipulation of circumstances and relationships to further sexual offending have been noted and deserve serious consideration. The dynamic risk elements that are likely to exacerbate the likelihood of further serious sexual offending are substance abuse, unstable support relationship and an impaired ability to regulate his emotional state when he struggles with long unmet emotional needs for caring and attachment from women. The latter risk determinant will be resistant to change due to his psychopathic personality disorder but some early gain has been evidenced as a result of treatment program interventions already completed. In
(Page 11)
- general, these gains in understanding and in accepting help are not likely to be sufficient protection against a relapse without a considerable period of progress and consolidation. An idiosyncratic analysis of his offending pathway reached a similar conclusion that there is a significant risk of reoffending and was pessimistic about the reduction of dynamic risk factors (page 45). (emphasis added)
- Dr Tanney went on to define 'High' likelihood of serious sexual reoffending as meaning a reoffending risk rate of approximately 40% within five years.
40 Dr Tanney reviewed Mr Comeagain in 2010. In a report dated 6 December 2010. Dr Tanney identified four areas of treatment likely to contribute to lessening Mr Comeagain's risk of reoffending. These four areas of treatment were as follows:
1. Victimisation therapy treatment. (The objectives of this treatment is to achieve some integration within Mr Comeagain of the experiences of childhood abuse/trauma in order that this does not continue to influence his current psychological, emotional, interpersonal and social functioning.);
2. Substance abuse treatment;
3. Sex offender treatment; and
4. Social skills training. (Dr Tanney believed that because Mr Comeagain has spent most of his adult life in institutional custody and experienced a childhood that afforded little opportunity for appropriate development of social and interpersonal coping skills, he required life skills counselling and training.)
41 Dr Tanney reviewed Mr Comeagain and prepared a report for the purposes of this third annual review. In a report dated 8 May 2012 Dr Tanney commented on the progress that had been made in relation to the four areas of treatment previously identified by him.
42 In relation to victimisation therapy, Dr Tanney noted that Mr Comeagain had continued to seek opportunities to address this issue. However, from reports examined by him, Dr Tanney noted that treatment resources had not responded to this area. Psychologists Ms Wager and Ms Zuin had both concluded that victimisation therapy was in their opinion not a useful direction of efforts to reduce Mr Comeagain's likelihood of further sexual reoffending.
(Page 12)
43 In relation to substance abuse treatment, Mr Comeagain had completed the Pathways Treatment Programme referred to earlier in this decision. Dr Tanney believed that Mr Comeagain had made significant change in this area notwithstanding relapses into use of illicit substances. He noted that a lengthy period of abstinence in early 2011 coincided with Mr Comeagain being prescribed antidepressant medication. This antidepressant medication prescription ceased and Dr Tanney believed this was a serious lapse in the treatment of Mr Comeagain.
44 In relation to developing social coping skills, Dr Tanney believed that Mr Comeagain had shown subtle change in his planning ability. Dr Tanney commented that these changes were small but important advances. However Dr Tanney stated such changes must be viewed with caution as Mr Comeagain is able to present what is needed to further his goal of leaving prison.
45 Dr Tanney stated in his report of 8 May 2012 that there has been little or no change in Mr Comeagain's internal psychological structures, where the characteristics of psychopathy continue to be evident. Dr Tanney stated in his report as follows:
4. There remains strong reservation about his diminished likelihood of reoffending because there has been limited progress or small opportunity to demonstrate such progress. Progress noted has been in the indirect or second-tier contributors to sexual offending. The primary contributors have not been addressed despite his willingness and stated motivation to engage in help in managing them. That said, there has been progress.
5. I remain of the opinion that Mr Comeagain continues to represent a very significant danger of reoffending sexually in the open community (page 16).
46 Dr Tanney concluded in his report as follows:
Programs and activities are available within the institutional environment that are specifically likely to lessen this risk, but Mr Comeagain's access to these programs has been limited. There are no indications that either Mr Comeagain or DCS seem able to accommodate the issues that limit access, although both parties have taken positive steps since the last review. Should this impasse continued, other valuable program activities can be encouraged if there is continuing detention. It is unlikely that simple passage of time in detention will suffice to lower his risk of sexual reoffending such that it could be managed in the open community.
With sufficient resource allocation, I am of the opinion that a long-term, highly structured, closely monitored and intensively supported Community
(Page 13)
- Supervision Order could be appropriately crafted, such that his risk of sexual reoffending can be managed in the open community. This course of action is less desirable than his engagement to a full array of institutional programs (pages 21 - 22).
47 In his oral evidence Dr Tanney stated that the best programme available for sex offenders such as Mr Comeagain is the Intensive Sexual Offenders Treatment Programme operated in Western Australian prisons. A community based sex offenders treatment programme would not have the same intensity as a residential based programme in prison (ts 485).
48 In cross-examination Dr Tanney admitted that the 'full array of institutional programmes' that he recommended may not be available to Mr Comeagain. In particular, in view of the attitude of treating therapists within the prison system to the victimisation component of treatment, this issue may be better dealt within the open community. However, Dr Tanney stressed that the victimisation counselling was a long process and the initial steps might be adequately dealt with in the Intensive Sexual Offender Treatment Programme so as to lower Mr Comeagain's risk of sexual offending (ts 526).
49 In relation to Mr Comeagain's continuing substance abuse difficulties Dr Tanney expressed the opinion that this continuation of drug use was due to Mr Comeagain's psychological dependence. In Dr Tanney's opinion Mr Comeagain was aware that he needed to stop using drugs but was unable to explain why he continued to use them (ts 539). Dr Tanney accepted that Mr Comeagain's drug dependency problem could be adequately treated in the community.
50 Dr Tanney 's evidence was that research literature was divided in opinion as to whether cannabis disinhibited sexual desire. Dr Tanney stated that latest research is tilting towards a conclusion that cannabis is not a factor. Dr Tanney was of the opinion that the continuing use of cannabis was not by itself a basis for preferring that Mr Comeagain be retained in custody as opposed to being released under a supervision order. Further, Dr Tanney expressed the view that the use of buprenorphine is not relevant to sexual urge issues (ts 547).
51 Dr Tanney expressed the opinion that the policy of the Department of Corrective Services to expel Mr Comeagain from the Intensive Sexual Offenders Treatment Programme as a result of positive drug result tests, was contrary to what Dr Tanney believed to be sound clinical treatment policies. Dr Tanney agreed that it was important to have a policy that there was to be no drug use during the period of the programme (ts 740).
(Page 14)
- However, he believed that it must be accepted with that people with psychological dependency for drugs are going to have relapses and remissions and these relapses and remissions must be dealt with as a part of the ongoing treatment programme. However, Dr Tanney acknowledged that the science in this area remains immensely controversial (ts 554). Also Dr Tanney acknowledged that there may be legitimate prison control factors in the Department's policy.
52 Dr Tanney also stated that when Mr Comeagain participated for a period of time in the Intensive Sex Offender Treatment Programme at the Bunbury Regional Prison he was denied a significant component of the treatment by not being able to participate in the residential component. This was a result of Mr Comeagain being returned to maximum security facilities at the end of each day. Dr Tanney was of the view that the Intensive Sexual Offender Treatment Programme was still more valuable than one-on-one counselling even without the residential component albeit that the effectiveness of the Intensive Sexual Offender Treatment Programme was reduced (ts 736). Dr Tanney, in his report dated 8 May 2012, concluded as follows:
I conclude that there are meaningful arguments that a requirement for completion of an intensive ISOTP is [sic] remains strongly advised, but also that there are significant barriers to availability and effectiveness that it may no longer be held as a necessary requirement or pre-requisite to his management in the open community (page 19).
53 Dr Tanney stated that there were potential negative impacts if Mr Comeagain remained in custody. It may destroy motivation to participate in treatment programmes and it may place at risk Mr Comeagain's relationship with Ms Winter.
54 Dr Tanney's evidence was that Mr Comeagain's core issues which create a risk to the community have not shifted and have not been adequately addressed. Dr Tanney commented that the risk factors of Mr Comeagain were deeply rooted. For this reason Dr Tanney believed it was preferable that Mr Comeagain received further treatment, primarily in the form of an Intensive Sex Offender Treatment Programme in custody as this would protect the community most effectively. If such a treatment programme was not available then Dr Tanney acknowledged that a difficult decision had to be made as to whether the risk to the community could be adequately managed by Mr Comeagain being released subject to a supervision order (ts 573).
(Page 15)
(b) Dr Adam Brett
55 Dr Brett is a consultant psychiatrist who prepared a report for the court dated 27 April 2012. In his report, Dr Brett made the observation that since the age of 14, Mr Comeagain has spent only two years in the community.
56 Dr Brett assessed Mr Comeagain as fulfilling the criteria of having a psychopathic personality disorder. He described Mr Comeagain as manifesting callousness and lack of empathy, has poor anger control, which is worse when intoxicated, and is prone to impulsivity.
57 Dr Brett, in his report dated 27 April 2012, made the following comments concerning Mr Comeagain's risk factors:
Mr Comeagain has the following risk factors, which are significant in his ongoing management. He has a significant sexual violence history that is chronic, has escalated and has involved significant physical coercion. The nature of the offending has been at the higher level of severity and has occurred within a short time at risk. The victims have varied and there have been unconfirmed, unconvicted other incidents of sexual violence reported.
He has risk factors related to psychological adjustment. He has previously and continues to minimise his offending, particularly the violence involved. He has problems with self-awareness and problems with managing stress. He has attitudes that condone his behaviour. He has significant issues of victimisation resulting from child abuse.
He has ongoing risk factors related to mental disorder. He has a chronic and enduring personality style consistent with psychopathy. He has ongoing issues related to substance abuse. He has sexual deviance.
He has risk factors related to social adjustment. He has historically had an absence of intimate relationships in the community. He has been in a prolonged relationship whilst in custody and if this can be maintained in the community would be a protective factor. He has very few non-intimate relationships and would have a limited social support network in the community. He has not been regularly employed and has vague plans for the community. He has a previous history of non-sexual criminality (pages 12 - 13).
58 Mr Brett considered that controlling Mr Comeagain's drug use was one of the critical factors in managing Mr Comeagain's risk of reoffending. Dr Brett expressed the opinion that it was problematic as to whether Mr Comeagain had the motivation or ability to be drug free in light of Mr Comeagain's ongoing drug use in prison after completion of the Pathways Programme in 2011.
(Page 16)
59 Dr Brett noted that the reasons for Mr Comeagain's drug use had been explored by a number of clinicians. The reasons ranged from self-management of anxiety related to previous traumatic experience, to escapism and feelings of hopelessness. Dr Brett noted that Mr Comeagain had stated that he needed to use drugs to function in the prison environment.
60 In his report dated the 27 April 2012, Dr Brett concluded that Mr Comeagain continues to be a high risk of committing an offence of sexual violence and that Mr Comeagain's risk in the community would be difficult to manage and contain. Dr Brett expressed the opinion that Mr Comeagain 'should successfully complete an Intensive Sexual Offenders Treatment Programme and be abstinent from substances before his clinical risk can be deemed to have been reduced'. In his oral evidence Dr Brett stated that a supervision order would not reduce significantly the risks of Mr Comeagain reoffending. Dr Brett expressed the opinion that the only place that effective treatment could occur to deal with Mr Comeagain's risk factors was in prison through an Intensive Sexual Offenders Treatment Programme (ts 608).
61 In cross-examination Dr Brett acknowledged that the effectiveness of an Intensive Sexual Offender Treatment Programme was reduced if Mr Comeagain did not have access to the residential component of the programme. However, notwithstanding this, Mr Comeagain expressed the opinion that participation in Intensive Sexual Offender Treatment Programme was still preferable to one on one counselling in the community as the group dynamic of group therapy provided an important tool in therapy. Dr Brett believed that even if one on one counselling in the community could be comparable with an Intensive Sexual Offended Treatment Programme, there still remained a risk management problem of conducting the treatment in the community. Dr Brett stated that when a person is undergoing treatment there can be an increase in risk in the short term because the treatment can be very stressful. The benefit of the treatment being conducted in custody is that the offender is prevented from reoffending during the stressful times.
The prospects of future participation in an Intensive Sexual Offender Treatment Programme
62 A critical issue in this matter is the difficulty of Mr Comeagain completing an in Intensive Sexual Offender Treatment Programme whilst in prison prior to being released under supervision into the community. Ms Marley, the principal psychologist with the Department of Corrective
(Page 17)
- Services prepared a report dated 21 June 2012 (which was signed by Mr Steve Robins, the Deputy Commissioner of Offender Management and Professional Development Division). In the report Ms Marley stated that there are two potential Intensive Sexual Offender Treatment Programmes available to Mr Comeagain - one at the Bunbury Regional Prison and one at Casuarina Prison. The extent to which Mr Comeagain is able to participate in such programmes is limited by his current classification as a maximum security prisoner. It remains problematic as to whether this classification will change in the foreseeable future. If Mr Comeagain was permitted to participate in a programme at the Bunbury Regional Prison as a maximum security prisoner, then he would be unable to live in the residential unit with the other participants of the programme. Similar to the arrangements made in early 2012, Mr Comeagain would have to be escorted by prison officers daily from the maximum security unit. The effect of such arrangements when Mr Comeagain participated in the Intensive Sexual Offender Treatment Programme in early 2012 was described in Ms Marley's report as follows:
Thus, he was not able to benefit from the full therapeutic milieu considered necessary in the treatment of high risk offenders. Such an arrangement for Mr Comeagain is not supported on clinical grounds. Mr Comeagain's treatment needs and risks are such that he requires the most intensive treatment available to him. This should include the secondary benefits of the therapeutic milieu. Without living with other participants he is not considered likely to have received the full 'dosage' of treatment. Further, it is contradictory to the ethos and treatment targets of the ISOTP to have any (but particularly a single) participant living separately from all the other group members, where he would have felt 'different' to the other group members. This would have been ego dystonic - that is, it may likely have had a negative impact on his self esteem and emotion regulation skills, which are critical targets in the ISOTP. For Mr Comeagain to benefit from treatment, it is clinically indicated that he receive the full model of treatment intervention according to theoretical and clinical recommendations. This includes a residential component (page 8).
(Page 18)
64 Ms Marley's evidence was that there was no group therapy treatment programme available in the community for dangerous sexual offenders such as Mr Comeagain.
65 In relation to Mr Comeagain's continuing use of illicit substances and the problems this creates for his participation in Intensive Sexual Offender Treatment Programme, Ms Marley stated in her report:
[I]t must be noted that unless Mr Comeagain achieves a period of abstinence from drugs, he will not be able to participate in, or complete the programme. This is a result of the fundamental change process requiring a basic commitment from participants to work on factors that hinder change. For most offenders, continued illicit drug use not only impacts on the capacity to develop self regulation skills, it impacts on feelings and beliefs around self-esteem, identity and a sense of mastery. Cessation of drug use is further a clear sign of responsibility taking. Given Mr Comeagain's removal from an ISOTP for continued and unceasing drug use, it would be counter therapeutic to allow him to complete a further program without first reducing or stopping his drug using behaviour in the prison system (page 9).
66 Ms Marley in her report went on to state that a requirement that Mr Comeagain cease using illicit substances involved considerations of both security and group factors. It is felt that it would be counter therapeutic to the group process to enable a participant to continue to use drugs.
67 Ms Heather Harker, the Deputy Commissioner of the Department of Corrective Services gave evidence that Mr Comeagain's maximum security rating could be overridden so as to enable him to participate in the next Intensive Sexual Offender Treatment Programme which was due at Bunbury Regional Prison in October 2012. Also, although this programme is currently fully booked, it was possible for someone else to be removed from the programme to create a vacancy for Mr Comeagain.
68 Ms Harker acknowledged that although it was possible to override Mr Comeagain's maximum security rating in order for him to participate in the residential component of the Intensive Sexual Offender Treatment Programme, it would be exceptional to do so. However, if Mr Comeagain was able to demonstrate his commitment to the programme by remaining drug free then this would increase his chances of an override and placement within the programme.
69 Ms Harker's evidence was that it is possible for Mr Comeagain and the Department to enter into a 'contract' that if Mr Comeagain conforms
(Page 19)
- with various preconditions then he will be given a position in the next Intensive Sexual Offender Treatment Programme. Ms Harker expressed the view that this was the correct approach to be taken in this case.
Conclusions
70 The paramount consideration is the need to ensure adequate protection of the community. However, this is not the only consideration. Other factors need to be taken into account. It is a matter of judgment, taking into account all considerations, as to what is adequate to protect the community: see Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 [57] (Wheeler JA, with whom Le Miere AJA agreed). The court must balance the need to protect the community from the commission of serious sexual offences against the public interest in preserving individual liberties and freedom. This public interest in preserving individual liberties and freedom takes into account that a sentenced prisoner is normally entitled to release once he or she has completed a sentence imposed. Constraints on a prisoner who has completed a sentence should be imposed only to the extent necessary to ensure the adequate protection of the community: Director of Public Prosecutions (WA) v Williams [45] (Martin CJ). If I decided a supervision order should be made, then I should assume that sufficient resources will be made available to provide adequate supervision: Director of Public Prosecutions (WA) v Williams [79].
71 It is appropriate for me to take into account the full context in which this review takes place.
72 The starting point is to take into account Mr Comeagain's personal circumstances. Mr Comeagain had an appalling upbringing from an early age which deprived him of the opportunity of developing in his childhood appropriate social coping skills and community standards. On top of this deprived upbringing, Mr Comeagain has spent, as I have mentioned earlier in this decision, all of his life since the age of 14 in prison except for a period of approximately two years. When Mr Comeagain was sentenced in August 2000 for his last set of serious sexual offences he was given a total sentence of 12 years' imprisonment without parole. As a result of this lengthy sentence, Mr Comeagain faced a very long period in prison without any incentives to address his sexual offending propensities and other related issues. I am satisfied that instead Mr Comeagain concentrated on surviving the prison sentence, which included developing a pattern of self-medication by using cannabis and other illicit drugs to the extent these could be accessed in the prison environment.
(Page 20)
73 Since the expiry of his sentence, Mr Comeagain's entrenched patterns of behaviour in prison, together with the policies of the Department of Corrective Services as to the availability of sexual offender treatment programmes, have made it very difficult to reduce to a manageable level the risk of Mr Comeagain reoffending if released into the community.
74 The contention of counsel for Mr Comeagain is that Mr Comeagain should be released into the community subject to a supervision order and that such an order will adequately protect the community. The contention of Mr Comeagain's counsel is based upon the following submissions:
1. There is no guarantee that Mr Comeagain will be able to participate in an Intensive Sexual Offender Treatment Programme in the immediate future, given Mr Comeagain's ongoing drug dependency issues and the Department of Corrective Services' strict requirement that Mr Comeagain will need to be drug free during the programme (and possibly for a period before the programme). Even if Mr Comeagain was able to comply with the requirement of being drug free, the fact that he remains classified as a maximum security prisoner, means that the residential component of the programme is unlikely to be available to Mr Comeagain. This will significantly reduce the effectiveness of the programme. Although accepting that group therapy programmes are not available in the community, it is submitted that one-on-one counselling which can be guaranteed under conditions attached to a supervision order, may produce the same benefits in terms of reducing Mr Comeagain's risk of reoffending. It cannot be excluded unless the one-on-one counselling is tried.
2. There are significant advantages in Mr Comeagain receiving counselling in the community as opposed to counselling in prison. This is particularly so in relation to the victimisation issue which is likely to be an ongoing lengthy process. The evidence of Ms Wager was that the counselling sessions are held in a section of Casuarina Prison where there is no privacy. It was acknowledged by Ms Wager that the lack of privacy makes it very difficult to explore such issues as the impact upon Mr Comeagain of his traumatic past. Further, it is submitted that the uncertainty of whether Mr Comeagain will be released and the brutality of the prison environment generally, was not conducive to psychological counselling and therapy.
(Page 21)
- 3. The risk to the community by Mr Comeagain being released is substantially reduced by the protective factor of the support that will be provided by Ms Winter. The relationship with Ms Winter will provide Mr Comeagain with emotional support and a mechanism of early detection of stress or use of drugs.
75 All of these submissions have merit. However, against them is the harsh reality that Mr Comeagain is a psychopathic serial sex offender of a most serious kind. He has not received any significant treatment to address the risk factors identified by Dr Tanney and Dr Brett. Any treatment received by Mr Comeagain and any progress made, has been marginal.
76 There are obvious potential dangers to the community if Mr Comeagain is released under a supervision order. I have been provided with a draft set of conditions which include electronic monitoring, counselling requirements, reporting requirements and abstinence from drugs and alcohol. However, Mr Comeagain will still have opportunities to offend. Ms Winter is fully employed and when Mr Comeagain is not attending counselling or other requirements of the order, he will be at home alone. He will not be confined to the house. In my opinion, Mr Comeagain is likely to find the transition from the lengthy term of imprisonment to life in the community difficult and stressful. He has few coping stills as a result of his past history. His relationship with Ms Winter may also produce additional difficulties. Their relationship is untested in the community. Mr Comeagain has no past history of being involved in such an interpersonal relationship. It may produce stresses and strains as most relationships do. Mr Comeagain's lack of skills in coping with such stresses and strains is likely to increase the risk of his reoffending.
77 As acknowledged by Dr Tanney, the primary contributors to the risk of Mr Comeagain reoffending have not been addressed. In the absence of such issues being addressed by treatment, it is clear that both Dr Tanney and Dr Brett are concerned that releasing Mr Comeagain into the community carries with it significant risks of reoffending. Counsel for Mr Comeagain submitted that the possible benefits of one-on-one counselling in the community had not been tested and therefore it could not be excluded that the risk of reoffending might be adequately dealt with in the community under supervision. However, the flaw in this proposition is that this 'give it a try' approach potentially exposes the community to a heightened risk of Mr Comeagain reoffending if the treatment fails.
(Page 22)
78 There remains also the continuing drug use problem of Mr Comeagain. Although he completed the Pathways Programme, this programme clearly has not stopped Mr Comeagain continuing to use drugs in prison. In prison, it appears that Mr Comeagain mainly uses cannabis and buprenorphine. I am unable to conclude that either of these two drugs has a direct correlation to increased sexual urges. However, there remains a link between cannabis use and Mr Comeagain's past offending. Whether the cannabis acts as a disinhibitor or whether it is simply a manifestation that Mr Comeagain is under stress, there remains an objective link with his past offending. Mr Comeagain's continued use of drugs in prison despite its prohibition and Mr Comeagain's understanding that his use of drugs is destructive of his chances of an early release, is a matter of concern. It also raises questions about his ability to comply with the onerous conditions that will exist under a supervision order. These conditions will include a prohibition against using any illicit drugs.
79 Having weighed up all factors, I reach the conclusion that the risk to the community is too great to release Mr Comeagain at this point of time under a supervision order. In my view, there needs to be demonstrated more significant treatment advances before the risk to the community is reduced to a level which is adequate. Accordingly, I expressly decline to rescind the existing continuing detention order. In doing so, I am conscious that my order has the potential to heighten despair for Mr Comeagain which may jeopardise his motivation to address his problems. However, notwithstanding this, I conclude that the risk to the community is too great for Mr Comeagain to be released at this stage under a supervision order.
80 I recommend that the Department of Corrective Services do whatever is reasonably possible to arrange a placement for Mr Comeagain in the Intensive Sexual Offenders Treatment Programme to be conducted in October 2012 at the Bunbury Regional Prison. It is preferable that the full regime of the programme be made available to Mr Comeagain including a residential component.
81 I recommend that the Department also consider entering into 'a contract' with Mr Comeagain to provide him with certainty. This contract should give him a guaranteed placement providing he complies with whatever conditions the Department sets as prerequisites. It is anticipated that consistent with the Department's current policies, that Mr Comeagain will have to demonstrate for a period before the programme and during the programme, that he is drug free. Notwithstanding the psychological
(Page 23)
- hurdles that Mr Comeagain will face in complying with such requirements, he needs to understand that in order to gain entry to the programme and to maximise his chances of release from prison, he will need to remain drug free.
4
3
1