Director of Public Prosecutions (WA) v Comeagain [No 4]
[2013] WASC 297
•23 JULY 2013
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- COMEAGAIN [No 4] [2013] WASC 297
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 297 | |
| Case No: | MCS:15/2008 | 23 JULY 2013 | |
| Coram: | JENKINS J | 23/07/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Respondent remains a serious danger to the community Expressly decline to rescind the continuing detention order | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) PATRICK ALFRED DENNIS COMEAGAIN |
Catchwords: | Dangerous sex offenders Fourth annual review Serious danger to the community Continuing detention order |
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 Comeagain [No 3] [2012] WASC 245 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
PATRICK ALFRED DENNIS COMEAGAIN
Respondent
Catchwords:
Dangerous sex offenders - Fourth annual review - Serious danger to the community - Continuing detention order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17, s 33
Result:
Respondent remains a serious danger to the community
Expressly decline to rescind the continuing detention order
Category: B
Representation:
Counsel:
Applicant : Mr A G Elliott
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 Comeagain [No 3] [2012] WASC 245
- JENKINS J:
(These reasons were delivered orally and have been edited from the transcript.)
1 This is the fourth 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 the Act s 7, and made an order pursuant to the Act s 17 that Mr Comeagain be detained in custody for an indefinite term, that is, a continuing detention order: Director of Public Prosecutions (WA) v Comeagain [2008] WASC 235.
2 The Act pt 3 requires a continuing detention order to be reviewed annually. Pursuant to the Act s 33(1), 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 the Act s 33(2), the court may, if it finds the person is still a serious danger to the community, either decline to rescind the continuing detention order, or replace it with a release order subject to conditions which is known as a supervision order. Pursuant to the Act s 33(3), 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, Blaxell J on 25 January 2011 and Commissioner Sleight on 6 July 2012: Director of Public Prosecutions (WA) v Comeagain [No 2] [2011] WASC 16, and Director of Public Prosecutions (WA) v Comeagain [No 3] [2012] WASC 245.
4 The Director of Public Prosecutions submits that I should find that Mr Comeagain remains a serious danger to the community, and that I should expressly decline to rescind the continuing detention order. Mr Comeagain does not submit that I should rescind the continuing detention order at this time. He acknowledges that, given the evidence and that since the last review he has not completed the Intensive Sex Offender Treatment Programme (the ISOTP), it is appropriate that I should expressly decline to rescind the continuing detention order. That is not the same as saying that he admits that he is a serious danger to the community. It is simply an acknowledgement by him that presently there is not the evidence before the court to come to a different finding.
5 Mr Comeagain says that he is currently doing the ISOTP, and once it is finished he will have made treatment gains that will enable a different decision to be made. However, the proof of that proposition is in the future.
6 It is inconsistent with the requirement in the Act s 29 that a review be carried out as soon as practicable after the expiry of one year under an order, for me to adjourn this review until Mr Comeagain has completed the ISOTP, which is not expected to be until 16 October 2013. To do so would also have the effect of setting back the timing of any subsequent annual review. So it would be prejudicial to Mr Comeagain for me to do that.
7 In these circumstances the parties propose that this review be completed. The Director concedes that if Mr Comeagain completes the ISOTP he is currently participating in, he will not oppose an application under the Act s 30 for an exceptional circumstances review. This leaves open the possibility that Mr Comeagain can apply to the court for a review of his detention order, following his completion of the ISOTP, and prior to the next scheduled annual review. The DPP does not concede that he will then consent to the continuing detention order being rescinded.
8 McKechnie J made orders that the annual review be held today, that no psychiatric examination and report was to be prepared for the annual review, having regard to Mr Comeagain's current participation in the ISOTP, and that the Director was to file and serve a report from an officer of the Department of Corrective Services, detailing any matters of relevance with respect to Mr Comeagain's care, control or treatment that had arisen since 8 July 2012.
9 The report ordered by McKechnie J dated 4 July 2013, along with other documents which provide information about Mr Comeagain's background since the last review, are now in evidence. The report says that Mr Comeagain is currently participating in the ISOTP, and he appears to be engaging in it. In order for him to participate in it he has been transferred to Bunbury Regional Prison. He resides in the self-care unit, and there have not been any adverse incident reports or prison charges during his time there. There was a delay in Mr Comeagain commencing the ISOTP because he tested positive to illicit drugs since the last review of his detention order.
10 Mr Comeagain has completed 32 sessions for the ISOTP at the time the report had been completed. These sessions totalled 96 hours of the expected 315 hours of the programme. Although the facilitators were of the view that Mr Comeagain was keen to understand the causes of his offending and to develop a thorough treatment plan, they considered it was too early to say whether he had made treatment gains.
11 As to his use of illicit substances, Mr Comeagain last tested positive for cannabis on 14 September 2012. Other than this result, Mr Comeagain has been tested on 13 occasions between 6 July 2012 and 22 June 2013 and he has returned negative results. He remains on the methadone program.
12 However, Mr Comeagain has refused to engage with psychological counselling during the last 12 months despite department psychologists attending on him on six occasions. If Mr Comeagain wishes to be released, it is important for him to engage in counselling whilst in prison. This has been made clear to him by other judges.
13 In conclusion, for the reasons given by McKechnie J and for the reasons given by Murray J on 17 December 2009, by Blaxell J on 25 January 2011, and by Commissioner Sleight on 6 July 2012, I find that Mr Comeagain remains a serious danger to the community. Nothing of significance has occurred since the last review to change the correctness of that finding.
14 Whilst I am pleased to see that Mr Comeagain is making positive steps to address his behaviour by participating in the ISOTP, it is too early to determine whether he will make treatment gains as a consequence of his participation which will result in a lowering of his risk of committing further sexual offences if he is released into the community.
15 There is, as yet, insufficient evidence upon which I could decide that it is appropriate to rescind the continuing detention order under the Act, s 33(2)(b). Consequently, I find that Mr Comeagain remains a serious danger to the community and I expressly decline to rescind the continuing detention order.
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