Director of Public Prosecutions (WA) v Comeagain [No 5]
[2014] WASC 214
•24 JUNE 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- COMEAGAIN [No 5] [2014] WASC 214
CORAM: SIMMONDS J
HEARD: 8, 9 & 17 APRIL 2014
DELIVERED : 24 JUNE 2014
FILE NO/S: MCS 15 of 2008
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
PATRICK ALFRED DENNIS COMEAGAIN
Respondent
Catchwords:
Criminal law - Dangerous sexual offender subject to continuing detention order - Exceptional circumstances review - Remains serious danger to the community - Supervision order would provide adequate degree of protection for the community - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 3, s 7 , s 17, s 29, s 30, s 31, s 32, s 33, s 37, s 42, s 44
Result:
Supervision order provided for
Category: B
Representation:
Counsel:
Applicant: Mr M T Trowell QC
Respondent: Ms M R Barone
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Attorney‑General for Queensland v Francis [2006] QCA 324; [2007] 1 Qd R 396
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
Director of Public Prosecutions (WA) v Comeagain [No 4] [2013] WASC 297
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Lyddieth [No 2] [2013] WASC 344
Director of Public Prosecutions (WA) v Misko [2012] WASC 259
Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions (WA) v Yates [2014] WASC 136
Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v West [2013] WASC 14
SIMMONDS J:
Introduction
Mr Comeagain is a person subject to a continuing detention order (the continuing detention order) made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) and confirmed at four annual reviews after it was made.
Mr Comeagain has applied for his detention under the order to be reviewed (the application) having received leave to do so under DSO Act s 30. That provision is for such leave for such an application to be made at any time provided that the court is satisfied that there are 'exceptional circumstances that relate to the person' (s 30(2)).
By agreement between counsel for Mr Comeagain and counsel for the Director of Public Prosecutions (WA) (the DPP), the DPP was treated as applicant in the hearing so as to permit counsel for Mr Comeagain to cross‑examine witnesses called by the DPP.
The provisions for the review of Mr Comeagain's detention made in DSO Act s 33 (the present review) are as follows:
33.The review
(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.
Pursuant to directions for the hearing of the application and the carrying out of it under DSO Act s 31 (the directions) that hearing was held over three days (the hearing).
These are my reasons for determination of the application.
I first provide the background to the application followed by the procedural context to the application.
I will then briefly describe those matters the DSO Act requires me to address in the present review.
I will then describe the personal history, history of offending and treatment of Mr Comeagain.
I will then describe the evidence at the hearing before me.
I will then address, in detail, the matters the DSO Act requires me to address. I begin with the first matter, or whether I do not find Mr Comeagain to remain a 'serious danger to the community' (see s 33(1)).
As I find that Mr Comeagain remains a serious danger to the community, a matter on which there was no dispute between the parties, I then address the second matter the DSO Act requires me to address, namely, whether to expressly decline to rescind the continuing detention order (see s 33(2)(a)) or to rescind the continuing detention order and make an order that Mr Comeagain be released into the community on conditions that the court considers appropriate (see s 33(2)(b)).
In making the choice between the two, the paramount consideration is the need to ensure adequate protection of the community (see s 33(3)).
For the reasons that follow I consider the appropriate order to be that in DSO Act s 33(2)(b), that is to say, I would rescind the continuing detention order and make an order that Mr Comeagain be released into the community on conditions that the court considers appropriate.
Background to Mr Comeagain's continuing detention
The continuing detention order was made by McKechnie J under DSO Act s 17(1)(a). McKechnie J's reasons are Director of Public Prosecutions (WA) v Comeagain [2008] WASC 235. The order was made on 22 October 2008.
The DPP must apply for annual reviews of a person's detention under a continuing detention order as provided for in DSO Act s 29. The provision I have previously set out for the present review, s 33, is the same provision for annual reviews.
On 17 December 2009, on the first annual review, Murray J expressly declined to rescind the continuing detention order (DPP v Comeagain, first annual review). See Murray J's reasons in transcript 17 December 2009, ts 308 ‑ 310.
On 25 January 2011, on the second annual review, Blaxell J expressly declined to rescind the continuing detention order. Blaxell J's reasons are Director of Public Prosecutions (WA) v Comeagain [No 2] [2011] WASC 16.
On 6 July 2012, on the third annual review, Commissioner Sleight expressly declined to rescind the continuing detention order. Commissioner Sleight's reasons are Director of Public Prosecutions (WA) v Comeagain [No 3] [2012] WASC 245.
On 23 July 2013, on the fourth annual review, Jenkins J expressly declined to rescind the continuing detention order. Jenkins J's reasons are Director of Public Prosecutions (WA) v Comeagain [No 4] [2013] WASC 297.
Procedural context for the present review
The directions provided, among other things, for the examination of and report upon Mr Comeagain by a named psychiatrist as well as another psychiatrist to be appointed by the court. See also DSO Act s 32.
The specifications for those reports are in DSO Act s 37. Specifically s 37(2) provides as follows:
(2)The report has to indicate -
(a)the psychiatrist's assessment of the level of risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and
(b)the reasons for the psychiatrist's assessment.
At the hearing I admitted into evidence as exhibit 1 a book of materials tendered by the DPP for the purpose of the review and entitled 'Book of Material for the Purpose of the Exceptional Circumstances Review of Detention'. Included in exhibit 1 were reports by the two psychiatrists provided for in the directions, one by Dr Brian Tanney, Consultant Forensic Psychiatrist, dated 25 March 2014, being exhibit 1.11 (Dr Tanney's report of March 2014); and the other by Dr Peter Wynn Owen, Consultant Forensic Psychiatrist, dated 31 March 2014, being exhibit 1.12 (Dr Wynn Owen's report of March 2014). I will refer to the complete contents of exhibit 1 in due course.
The matters the DSO Act requires me to address
A useful summary which I adopt, a summary referring to Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 and to Attorney‑General for Queensland v Francis [2006] QCA 324; [2007] 1 Qd R 396, is in DPP v Comeagain [No 2] [20] ‑ [21] (Blaxell J):
Section 33 of the [DSO Act] provides to the following effect:
(1)I must rescind the continuing detention order if I do not find that Mr Comeagain remains a serious danger to the community.
(2)If I do find that he remains a serious danger I can either expressly decline to rescind the order, or rescind the order. If I rescind the order I must make a supervision order for a specified period and on appropriate conditions.
(3)In making a decision under (2) above, 'the paramount consideration is to be the need to ensure adequate protection of the community'.
Consistent with the authority of … Williams … [79] if making a decision under s 33(2) I should adopt the least restrictive alternative compatible with the protection of the public. In that regard, and in the absence of evidence to the contrary, I should assume that in the event that a supervision order is made, resources will be made available to provide adequate supervision (Williams [81]; … Francis … [36]).
See also the adoption of DPP v Comeagain [No 2] [20] ‑ [21] in Director of Public Prosecutions (WA) v Lyddieth [No 2] [2013] WASC 344 [20] ‑ [22] (EM Heenan J); and the reference to DPP v Comeagain [No 2] [20] ‑ [21] in Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95 [51] (Corboy J).
I now elaborate briefly on the two parts of DPP v Comeagain [No 2] [20], namely:
(1)whether the offender remains a serious danger to the community; and
(2) & (3)if he is so found, the choice between the two options in DSO Act s 33(2)(a) and (b).
DSO Act s 7 read with s 3(1) gives the meaning of 'serious danger to the community' as follows:
7.Serious danger to the community
(1)Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
(2)The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied -
(a)by acceptable and cogent evidence; and
(b)to a high degree of probability.
(3)In deciding whether to find that a person is a serious danger to the community, the court must have regard to -
(a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b)any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d)whether or not there is any pattern of offending behaviour on the part of the person; and
(e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program; and
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and
(g)the person's antecedents and criminal record; and
(h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
I consider that the relevant principles, established by prior decisions, as to the proper construction and effect of DSO Act s 7 are to be conveniently found in The State of Western Australia v West [2013] WASC 14 [52] (part) (Corboy J). In The State of Western Australia v West Corboy J said as follows:
(a)Section 7(1) of the DSO Act provides that before the court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The expression 'serious sexual offence' has the meaning given to that term in s 106A of the Evidence Act 1906 (WA) (s 3 of the DSO Act).
(b)The DPP carries the onus of satisfying the court about that matter and the court must be satisfied by acceptable and cogent evidence and to a high degree of probability. The expression 'high degree of probability' is incapable of further definition. Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof: Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307 [28] (Steytler P and Buss JA; and see at [34] for a further elaboration on what the expression means in its application).
(c)In deciding whether to find a person is a serious danger to the community the court must have regard to each of the matters specified in s 7(3) of the DSO Act.
(d)It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence: DPP v GTR [21].
(e)The term 'unacceptable risk' is not defined in the DSO Act. However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made: Italiano v The State of Western Australia [2009] WASCA 116 [4] and [46] (Buss JA).
(f)In a passage that was expressly approved in DPP v GTR, Wheeler JA stated in Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; 35 WAR 297 [63] ‑ [64]:
'In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.'
(g)The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced: DPP v GTR [97] (Murray AJA).
(h)The court must identify what, if anything, constitutes the risk and factor or factors makes that risk unacceptable and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence: DPP v GTR [34].
See also the adoption of the full list (see the remainder of it below) from The State of Western Australia v West [52] in Director of Public Prosecutions (WA) v Yates [2014] WASC 136 [5] (Martin CJ).
As to the matter of the choice between the options in DSO Act s 33(2), I note from The State of Western Australia v West [52] the following, which completes the lettered list appearing there:
(i)The court must make a continuing detention order or a supervision order once it is found that the respondent is a serious danger to the community: Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; 38 WAR 217. The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a pre‑disposition to making a continuing detention order. As Hall J observed in Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312, '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order' [14].
(j)The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 and Decke.
The State of Western Australia v West in that respect concerned the relevant principles for the choice between the options in DSO Act s 17(2), which are expressed in similar but not identical terms to those in s 33(2). However, notwithstanding the differences, I consider that the similarities are such as to make the just quoted passage applicable here. See also DPP v Pindan [No 3] [49].
There is a further matter of law that is potentially relevant. It concerns the option to be chosen from DSO Act s 33(2) in the event that a court is in the position described in DPP v Williams [86] (Wheeler JA, Le Miere AJA agreeing), referring to s 17(2) (see s 33(3)), as follows:
Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2), it would have been necessary for him to have made a continuing detention order.
There are also two matters of difficulty in the statements of the relevant principles that I have quoted thus far. However, it was not put to me that either had a role to play in this case; and I am unable to see that they have any such role.
One matter concerns the extent to which the court should proceed on the assumption that the executive government will provide the resources for the management and treatment of offenders falling under the DSO Act. See DPP v Yates [7].
The other matter concerns the breadth of the tasks of the court in making the finding provided for in DSO Act s 33; and in making the choice between the options also there provided for.
The second matter is raised in DPP v Pindan [No 3] [52] ‑ [55] as follows:
Simmonds J observed in Director of Public Prosecutions (WA) v Misko [No 2] [2013] WASC 300 that:
'I should note that I consider my task under DSO Act, s 33, is to determine the matters referred to in that section, by reference principally to the evidence of material facts or circumstances, if any, arising since the making of the continuing detention order, that is, while the relevant offender was on detention under the order. I also believe that I should pay particular attention to any matter that, while not so arising, has become known since then [12].'
Broadly, that approach is supported by the wording of the section: 'if [the court] does not find that the person … remains a serious danger to the community' (s 33(1)) and 'if [the court] finds that the person … remains a serious danger to the community' (s 33(2)). Accordingly, the point of departure for a review is a previous finding that a person was a serious danger to the community. That is reflected in the observations made by Hall J in Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 about the object of the requirement for an annual review:
'The clear intention of the annual review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community then the continuing need for detention must be considered.
It is a significant thing to deprive a person of their liberty, not for something they have done but for something they might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability: s 7(2) DSO Act. Such a finding requires satisfaction that there is an unacceptable risk that the person would commit a serious sexual offence if not placed under a supervision order or detained.
The risk of reoffending may change over time. It may be affected by age, health and the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust [14] - [18].'
There may, however, be an issue about whether the effect of s 33 of the DSO Act is that the court reviewing a continuing detention order is bound by the findings of the court that first determined that the offender was a serious danger to the community or of a court conducting an earlier review. Is the review court required to undertake its own, independent assessment of the risk of serious sexual offending and the unacceptability of that risk according to the matters specified in s 7(3) of the DSO Act by reference to all of the available evidence, including the material that was considered by the court that made the continuing detention order? That approach would leave open the possibility that the review court could reach a different conclusion to a court that had previously made a continuing detention order about matters such as the risk of re-offending, the unacceptability of that risk or the protection likely to be afforded to the community by a supervision order even though there had been no material change in the matters specified in s 7(3).
Alternatively, is the task of the review court more confined; does it merely look to see if there has been a change in the factors identified by the court that found that the offender was a serious danger to the community (and note in this context the observations of Steytler P and Buss JA in GTR at [21] to which reference was earlier made) and evaluate the impact of any change on the risk of re-offending and the acceptability of that risk? That approach would be consistent with the observations of Simmonds J in Misko and Hall J in Unwin [No 3]. (original emphasis)
Corboy J did not find it to be necessary to make a determination as between the two kinds of task in DPP v Pindan [No 3]: see [56] ‑ [58].
Counsel for Mr Comeagain put to me that, while the more confined task might be appropriate for the purposes of determining whether the court 'finds the person subject to the order remains a serious danger to the community' (s 33(2), opening words), by virtue of the use of the word 'remains' (see DPP v Pindan [No 3] [53]), it was not appropriate for the purpose of the choice between the two options s 33(2)(a) and (b). The less confined task described in DPP v Pindan [No 3] [54] was that which the court was required to undertake for the latter purpose.
On the respondent's submission, that less confined task meant that a judicial officer in my position ought to take account of any evidence, whether in exhibit or testimonial form, in previous proceedings, at least to the extent it had been drawn to that officer's attention in evidence in the present proceedings or in submissions.
I consider that the difference between the two tasks is reduced considerably when account is taken of the need to understand the evidence in prior proceedings in order properly to evaluate evidence of facts or circumstances that have arisen or become known since the last annual review.
Thus, there was attention directed by counsel for Mr Comeagain before me, in relation to evidence of Mr Comeagain's resistance, variously described, to engagement with psychological treatment since the fourth annual review, to evidence in the third annual review of the questioning by a psychologist, Ms Cinzia Zuin, apparently reporting to Ms Wendy Wager, Senior Forensic Consultant, Clinical Governance Unit, Offender Services, of the link between Mr Comeagain's sexual offending as an adult and the matter of what was suggested to be Mr Comeagain's anger around his victimisation (see 9 April 2014, cross‑examination of Dr Wynn Owen, ts 1089).
Also, there was attention directed by that counsel to the pattern of the virtual absence of positive test results for Mr Comeagain for substances in exhibit 1.6 (the period 6 July 2013 to 26 March 2014), set against the evidence in the fourth annual review of the complete absence of positive test results from 30 October 2012 to 29 June 2013 (see 9 April 2014, cross‑examination of Dr Wynn Owen, ts 1065 ‑ 1067).
However, this might be less clear in other circumstances. This might be seen in this case, where counsel for Mr Comeagain directed my attention to the testimony of Ms Wager in the third annual review. That was for the purpose of her submissions that that testimony was a better and firsthand account of what Ms Wager made of his engagement with the treatment she was providing him and why that engagement ceased compared with the description in the evidence of Dr Bannister in exhibit 1.13 (exhibit 1 page 85). Before me Dr Bannister's attention was not drawn to Ms Wager's testimony.
Counsel for the DPP for his part put to me that it was not necessary for me to resolve the matter. Counsel made no objection to my taking account of any of the materials from previous proceedings to which counsel for Mr Comeagain drew my attention.
I consider that it is not necessary to resolve the matter, given the position of counsel for the DPP and the nature of the materials referred to.
I turn now to provide detail about findings and conclusions in the previous annual reviews for Mr Comeagain. I do this because those findings and conclusions provide details of Mr Comeagain's personal history, offending and treatment which I consider to be of importance to approaching the matters the DSO Act requires me to address on the evidence before me. I draw these from DPP v Comeagain [No 2], DPP v Comeagain [No 3] and DPP v Comeagain [No 4]. None of those details appear to me to be in contest, with an exception I will note.
Findings and conclusions in the previous annual reviews
In DPP v Comeagain [No 2] Blaxell J at [3] ‑ [11]; [17] ‑ [18] (reviewing evidence before his Honour of Dr Tanney); and [22] ‑ [28] said this:
Mr Comeagain was born on 3 June 1973 and is now 37 years of age. He is an Australian Aboriginal man who was raised predominantly in the Mullewa/Geraldton region. He has a history of five episodes of serious sexual offending commencing in 1987 when he was 15 years old. The victims of those offences were generally adult women, but a group of five offences in 1994 were committed against a 9-year-old girl.
Mr Comeagain has also committed offences of a non-sexual nature, and he has spent the bulk of his adult life in prison. There have been very few occasions following any release from prison when he has not re-offended again shortly thereafter.
Mr Comeagain's most recent episode of serious sexual offending was in January 2000 when (in separate incidents) he deprived two victims of their liberty in their own homes and subjected them to aggravated sexual penetration. This occurred only five weeks after he had been released on parole in respect of previous sexual offending, and following completion of a sex offender's treatment programme. At that time he was participating in a maintenance treatment programme.
Following Mr Comeagain's conviction for those offences he was sentenced to 12 years' imprisonment without parole. During that 12 years he did not participate in any further sexual offender's treatment programme. In that regard there was little incentive for him to do so prior to the passing of the Act given that he was not eligible for parole and was bound to be released upon the expiration of his sentence.
However, during 2007 and 2008 Mr Comeagain did make some efforts to address his offending behaviour. He engaged the services of a clinical psychologist (Mr Annand Kamalesh) who conducted a series of 15 individual counselling sessions. The counselling schedule was incomplete but still ongoing at the time of the continuing detention order.
In about 2002 there was a significant change in Mr Comeagain's circumstances as a result of him coming into contact with an older woman (Ms Winter) working within the prison system on an Aboriginal suicide prevention project. Over the following years they gradually developed a friendship and they ultimately became engaged. For the purposes of the proceedings under the Act, it always has been proposed that in the event of any release into the community Mr Comeagain would reside with Ms Winter.
When reviewing the evidence on the original application McKechnie J gained the 'overwhelming impression' that without a formal order it was inevitable that Mr Comeagain would soon offend in a violent sexual way. Notwithstanding that Mrs Winter's involvement with Mr Comeagain favoured a supervision order, his Honour found that a release into the community would be 'completely unacceptable at this stage'. In determining that a continuing detention order was the only safe course, his Honour also observed that:
'His situation will have to be reviewed in a year and it may be that during that time significant progress will be made with Mr Kamalesh [86].'
However, for reasons that are not clear from the evidence, the counselling by Mr Kamalesh did not continue after 2008. In July 2009 Mr Comeagain commenced an intensive sexual offender's treatment programme which he was scheduled to complete in February 2010, but his participation was discontinued on 18 November 2009 because of cannabis use. The treatment non-completion report provided the following negative assessment:
'[H]is current motivation to complete the program is evidently largely been aimed at gaining parole as opposed to specifically being aimed at addressing his offending behaviour. Such a stance is not uncommon prior to offenders entering treatment though often shifts once they engage in the process. In Mr Comeagain's case he remained quite ambivalent and over the course of his involvement and his vacillated between appearing reasonably motivated to adopting a more oppositional and hostile stance. The latter position was frequently followed by comments to the effect that he viewed himself as 'too far gone' in reference to the complexity and seeming intractability of issues related to his offending. There was evidence of hopelessness to his outlook at such times. He also vacillates between appearing to be aware of what role he plays in various negative outcomes in his life to a position of feeling aggrieved and unfairly treated. Available documentation indicates that he has cycled through such positions on previous occasions over the course of his lengthy incarceration. He has numerous methods for eliciting sympathy to his plight and there is also evidence to suggest that he seeks to influence decision makers to his way of thinking by his way of his own brand of reasoning, the upshot being that he is sometimes unrealistically optimistic about his prospects of meeting requirements to progress towards release.
Despite the comments and observations about his difficult or laboured progress in treatment to date Mr Comeagain nevertheless impresses as having the capacity to effectively engage in and complete an intensive sex offender treatment program. Beyond the day to day issues regarding his motivation and presentation in group, his continued use of cannabis is clearly also an issue of central concern and has ongoing relevance in respect to his capacity to manage his behaviour in the future. His capacity to adversely impact on fellow participants should be taken into account in considering his placement in a future group based program.'
The first annual review of Mr Comeagain's detention occurred on 17 December 2009, and Murray J expressly declined to rescind the order previously made. This decision was based upon the lack of any significant change in Mr Comeagain's circumstances over the previous year, and the consequent conclusion that he remained a serious danger to the community. As to the failure to complete the sexual offender's treatment programme, his Honour commented as follows:
'I say this to Mr Comeagain: he needs to understand that although the process may at times appear tedious, may at times appear as a process which is not making a lot of progress, in the end these are programs devised by experts who understand what they are doing and he ought to suspend judgment about these programs and wholeheartedly get into it because in the end therein, it seems to me, lies his best prospects of achieving his release from detention in a situation where he can re-establish and then go about an ordinary way of life in the community (ts 309).'
…
Dr Tanney considers that Mr Comeagain has four areas of treatment needs which must be addressed if the risk of his future re-offending is to be reduced. Two of these areas are sexual offending, and substance abuse. A third area is 'victimisation', and in this regard:
'The objective is to achieve some integration within himself of the experiences of childhood abuse/trauma in order that these not continue to influence his current psychological, emotional, interpersonal and social functioning. There has been almost no identifiable treatment work offered or undertaken in respect of this issue.'
A fourth area of treatment required for Mr Comeagain is social skills functioning. In this regard:
'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. Life skills programming or a structured transition towards community living has not been made available.'
…
There has been no significant change in Mr Comeagain's circumstances since the date of the last review, and I make the finding that he remains a serious danger to the community.
I accept Dr Tanney's evidence that there are four areas of treatment needs that require to be addressed before there can be any reduction in the risk of Mr Comeagain re-offending. I also accept Dr Tanney's opinion that there is no clinical reason why two of these areas of treatment (sexual offending and substance abuse) cannot be treated concurrently. Nevertheless, if Mr Comeagain was to become abstinent from cannabis he is far more likely to benefit from a sex offender's treatment programme. I also find that there are good and substantial reasons (as set out on pages 85 and 86 of the book of materials) for the Department of Corrective Services policy requiring abstinence from drug use prior to inclusion in a programme.
It is because of Mr Comeagain's refusal to abstain from cannabis that he has not yet participated in further substance abuse and sex offender treatment programmes. However, he is not in any way responsible for the Department's failure to address his remaining treatment needs in respect of victimisation and social skills functioning.
My decision under s 33(2) requires consideration of a number of significant factors. Mr Comeagain's substance abuse contributed to his past offending and progress towards abstinence is critical to a reduction in the risk of him re-offending. However, he is unwilling to address his substance abuse problem, and will almost certainly maintain this attitude if released into the community. Furthermore, his other treatment needs remain unaddressed.
If released into the community Mr Comeagain will live with Ms Winter and be subject to her beneficial influence. Even so, Dr Tanney assesses that he would be at high risk of committing further sexual offences involving physical violence. This risk would be heightened in the likely circumstances of substance intoxication, and his offending would be opportunistic and unpredictable in its timing.
I accept Dr Tanney's assessment of the level of risk. In light of all of the relevant factors I find that no matter how a supervision order might be structured, there would still be a very significant danger that Mr Comeagain would sexually re-offend in a violent way. For these reasons I expressly decline to rescind the continuing detention order.
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 programmes. It is also necessary that the Department activate appropriate counselling and/or programmes to address his needs in respect of victimisation and social skills functioning.
In DPP v Comeagain [No 3] [72] ‑ [79] there is an account by Commissioner Sleight that is largely focussed on matters since the date of the second annual review up to the date of the third annual review. Commissioner Sleight said as follows:
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.
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.
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.
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.
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.
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 skills 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.
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.
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.
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.
In DPP v Comeagain [No 4] [4] ‑ [15] Jenkins J said this as to matters since the date of the third annual review up to the date of the fourth annual review:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
I should note that counsel for Mr Comeagain put to me that the statement by Jenkins J in DPP v Comeagain [No 4] [12] that other judges had 'made clear' to him it was 'important for him to engage in counselling whilst in prison' was not supported by what appeared in the decisions on the previous annual reviews. However, I note the reference in DPP v Comeagain [No 2] [28] (Blaxell J) to the necessity for the Department of Corrective Services (the Department) to activate appropriate counselling as well as or alternatively to programmes as well as what appears in the quoted passages from the previous decisions which highlight psychological counselling Mr Comeagain underwent or the lack of it. I consider from that material that there is support from those decisions for the statement by Jenkins J.
On 24 October 2013 Mr Comeagain completed the Intensive Sex Offender Treatment Programme (ISOTP) referred to in DPP v Comeagain [No 4] [14]. There is a Program Completion Report dated 20 November 2013 by two senior programs officers of the Department that is part of exhibit 1, as exhibit 1.3.
I turn now to the whole of the evidence put before me.
Evidence before me
DSO Act s 42(2) ‑ (4) provides for evidence in an application for an annual review under s 30. Those subsections do so as follows:
(2)Before the court makes a decision or order on the hearing of an application it must, if the evidence is admissible -
(a)hear evidence called by the DPP; and
(b)hear evidence given or called by the offender or person subject to the order, if that person elects to give or call evidence.
(3)Except as modified by subsection (4), ordinary rules of evidence apply to evidence given or called under subsection (2).
(4)In making its decision, the court may receive in evidence -
(a)any document relevant to a person's antecedents or criminal record;
(b)anything relevant contained in the official transcript of any proceeding against a person for a serious sexual offence, or contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind.
I have previously referred to exhibit 1, which I read prior to the hearing. No part of exhibit 1 was objected to as inadmissible.
Exhibit 1, which is relatively short, contains matter concerning Mr Comeagain that has arisen since the making of the continuing detention order; but it also contains other matter which is also in evidence before me.
Exhibit 1 contains the following:
1.1WA Criminal Record of [Mr Comeagain] dated 15 July 2013 (date printed);
1.2Transcript of proceedings before Hamilton SM in the Bunbury Magistrates Court dated 24 August 2012 and 30 August 2012;
1.3Program Completion Report dated 20 November 2013 (date printed);
1.4Charge History - Prisoner for date range 06/07 2013 to 17/01/2014 dated 17 January 2014 (date printed);
1.5Incident History - Prisoner for date range 22/09/13 to 26/03/14 (update from 2013 item 1), dated 26 March 2014 (date printed);
1.6Substance Use Test Results - Prisoner for date range 06/07/13 to 26/03/14 (update from 2013 item 2) dated 26 March 2014 (date printed);
1.7Incident Description Report, Incident Report Minutes and Charge against offender relating to incident I1262831 (urinalysis) at Casuarina Prison on 22/11/13 various dates;
1.8Urinalysis results from sample provided by [Mr Comeagain] on 22 November 2013 (Pathwest Laboratory Report ref P13‑5727969M - results for methylamphetamine (positive) dated 30 November 2013;
1.9Department of Corrective Services Individual Management Plan (Approved) (update from 2013 item 7) dated 17 October 2013 (date approved);
1.10Health Services Review of [Mr Comeagain's] health notes by Dr Fitzclarence, Deputy Director Prison Health, Offender Services Division, Department of Corrective Services dated 5 February 2014;
1.11Dr Tanney's report of March 2014;
1.12Dr Wynn Owen's report of March 2014;
1.13Dangerous Sex Offender Treatment Progress Report of Dr Ben Bannister, Forensic Psychologist dated 17 March 2014 (Dr Bannister's report of March 2014); and
1.14Community Supervision Assessment Report of Ms Julie Dabala, Senior Community Corrections Officer dated 25 March 2014 (Ms Dabala's report of March 2014).
At the hearing a set of analyst's certificates for samples of blood taken from Mr Comeagain on 22 November 2013 were admitted into evidence by consent as exhibit 2. It should be noted that part of exhibit 2 was a better copy of and replaced exhibit 1.8.
Also at the hearing the following documents were also admitted into evidence by consent: a letter dated 28 March 2014 from Ms Winton's employer to her indicating that her employment would cease on 9 April 2014 on the basis that continued employment would be 'untenable' from the date of release of Mr Comeagain (exhibit 3); and draft orders prepared by the DPP, being an order for declining to rescind the continuing detention order (exhibit 4.1) and a supervision order (exhibit 4.2).
At the hearing reference was also made to some exhibits and transcripts from prior proceedings under the DSO Act involving Mr Comeagain. None of these were made exhibits. However, I understood that reference to them was without objection by the other party.
Prior to the hearing I was notified that Dr Tanney, Dr Wynn Owen, Dr Bannister and Ms Dabala had been summonsed and would, subject to any discussions between counsel, be called at the hearing. Those four persons were called and testified. The DPP did not seek to call any other evidence.
Mr Comeagain appeared at the hearing before me, as was his entitlement: see DSO Act s 44(2). He was represented by counsel. Mr Comeagain did not seek to give or adduce any evidence.
Thus, the evidence before me was that contained in exhibits 1 ‑ 4, the evidence from previous proceedings under the DSO Act I have referred to and the testimony of the four persons named.
I turn now to the matters the DSO Act requires me to address.
Whether I do not find Mr Comeagain remains a 'serious danger to the community'
I believe I must address this in some detail, notwithstanding that it is not in dispute before me. I so believe, both because I must make that determination, and because a number of matters I must address in that regard also go, in my view, to the choice I must make between the options in DSO Act s 33(2)(a) and (b).
I adopt the structure used by McKechnie J in Director of Public Prosecutions (WA) v Misko [2012] WASC 259. That structure follows DSO Act s 7(3).
(a) the psychiatric reports
In this section of my reasons I review not only the two psychiatric reports, of Dr Tanney and of Dr Wynn Owen, but also their related testimony.
Dr Tanney's report of March 2014 indicates that he is a consultant forensic psychiatrist and former professor of psychiatry at the University of Calgary. That report further indicates he has been an expert witness in this court from 2001.
Dr Wyn Owen's report of March 2014 indicates that he is a consultant forensic psychiatrist who has worked in a broad range of mental health settings as a medical practitioner and subsequently as a consultant psychiatrist in the United Kingdom, New Zealand and Australia. It further indicates he has completed specific training in the comprehensive assessment of sexual offenders with particular reference to the Western Australian dangerous sexual offender legislation.
No objection was taken to Dr Tanney's or Dr Wynn Owen's qualifications as experts to express, in their reports and in their testimony, the opinions I now describe. I consider both witnesses to be so qualified.
Both Dr Tanney and Dr Wynn Owen interviewed Mr Comeagain on two occasions each and also drew on other matter as I will indicate. I will return to their interviews below.
In Dr Tanney's case the other matter was Dr Bannister's report of March 2014; contact with Community Corrections staff who would be responsible for the community management of Mr Comeagain should a supervision order be made for him; and (not further specified) information provided by the DPP and the Department. Dr Tanney's report of March 2014 also refers to his having refreshed his recall of the reports he had provided to the court for the div 2, second annual review and third annual review hearings.
In Dr Wynne Owen's case that other matter was a telephone discussion with Ms Dabala; a meeting with Department psychologist Dr Ewers; materials collated for the div 2, Contravention (2009), first annual review, second annual review, third annual review and fourth annual review hearings and materials included subsequently in exhibit 1, including the 2013 ISOTP Report and Dr Bannister's report of March 2014.
I note that no issue was taken by the parties with the extent to which Mr Comeagain cooperated with either psychiatrist.
Dr Tanney's conclusion, as expressed in his report (exhibit 1 page 70) and confirmed in his testimony, was as follows:
There remains a significant risk of sexual reoffending. It has further reduced since the 2012 Review. The themes identified at the previous reviews remain active contributors to this risk.
Notable progress has been made in addressing substance abuse, sexual offending and interpersonal relatedness/coping. These positive steps need to be strongly reinforced. Mr Comeagain presents himself as prepared to address community re-entry within the requirements of community supervision needed to manage his risk of sexual reoffending. The availability of his long-term partner is critical to the reduction in management of reoffending risk
Ongoing detention serves no rehabilitative function. With sufficient resource allocation, a long-term, highly structured, closely monitored and intensively supported Community Supervision Order is appropriate. His risk of sexual reoffending can be managed in the open community.
In his testimony Dr Tanney elaborated on a number of aspects of this conclusion as follows (8 April 2014, cross‑examination, ts 896):
That's your opinion? That's my opinion.
And that differs to opinions you've given on previous occasions; is that correct? Yes, it does.
In fact, it's a modification of your previous opinions? It's a modification. Yes, it is.
Yes. And it's reflective of the positive changes you've spoken of in the report? Yes, over the course of years. I certainly, in 2012 I took much the same position as I have today, but not in the two previous ones. So certainly, as you point out, there's been change.
Yes. I mean, how many times, in fact, have you done a report in relation to Mr Comeagain? My understanding is it's four.
Yes. You've been engaged at every annual review where there's been psychiatric assessments? Where there's been psychiatric opinion, yes.
That's correct. In fact, you were engaged as one of the experts in the original application; is that correct? Yes.
It wasn't until the last annual review. Sorry, if we call it the third annual review, with Commissioner Sleight, that your opinion had changed to say that you would support community supervision? Yes.
Is it fair to say that you're more comfortable in that opinion today than you were in 2012? Yes.
Yes. And that's because of the change? Yes.
Changes that you've seen. So if anything, we could say that your - if I posited this as your conclusion, that community supervision is more appropriate than it was in 2012? Yes.
You would accept that? I would accept that.
And that would adequately reflect your opinion today? Yes.
In his report of March 2014 he referred to the reduction of risk he had observed since completing his report of 2012 as follows (exhibit 1 page 65):
I reiterate my 2012 conclusion respecting risk.
'These outcomes are indicative of continuing, incremental progress in addressing issues that are known to relate to the likelihood reoffending. It remains important to note that his supportive relationship with Ms Winter accounted directly to most of this progress (in 2010). At this review, there is some indication of change in areas that are more his responsibility. However, there remain a considerable number of issues suggesting that reoffending is a realistic expectation.'
At this assessment, risk is further mediated, but still remains an active concern. By this I mean that likelihood has decreased, but there is no indication that the pattern of severe sexual violence has been altered, should he relapse to sexual offending.
In the same part of his report Dr Tanney went on to note (exhibit 1 page 65):
I remain of the opinion that Mr Comeagain continues to represent a significant danger of serious sexual reoffending in the open community. This is not readily quantified, but all available measures continue to support numerous areas and concerns requiring active risk management, whether in custody or the community.
In his testimony, Dr Tanney explained aspects of this part of his report as follows (8 April 2014 examination‑in‑chief ts 856):
Were the changes significant when you made this assessment this year? At this assessment? I said most of the changes between 2010 and 2012 on the RSVP related to the fact that he had supports in the community. So some of the measures that we looked at were intimacy and plans for employment and what he said about how he would be willing to be supervised and managed. Most of those related to the fact that he said, well, I will have a person to support me in that. And that's what led to most of the changes between 2010 and 2012. Between 2012 and this assessment, based on the interviews and the report from the ISOTP program, I felt that there had also been changes, as I indicated here, that the areas that were his responsibility, he had stepped up to the plate a bit more. And we can speak specifically to substance abuse, we can speak specifically to his completion of the program, and I think we can speak to some issues around his efforts towards addressing his own internal psychological difficulties and his issues in terms of social relatedness. And these were the four issues that had been identified for many years. Not for many - actually, for many years, but at least in all of the assessments and reviews and were identified again in the completion - the treatment completion report as issues that he continued to need to work on.
This assessment of overall level of risk with reduction in the likelihood of risk and the aspects of that assessment in terms of substance abuse, programme completion, address of internal psychological difficulties and issues in terms of social relatedness may be compared and contrasted with the assessment in the March 2014 report of Dr Wynn Owen (exhibit 1.12 page 82) as follows:
Mr Comeagain currently presents a high risk of serious sexual offending if not subject to detention or supervision under the WA DSO Act 2006. I am of the opinion that his reoffending risk has not changed significantly since the Annual Review undertaken in 2012.
This opinion is informed by:
•a score indicating a High Risk on Static 99 suggesting a 4 in 10 likelihood of re-offence within 5 years of release (and possibly higher due to poor predictive validity of Static 99 identified in a recent UWA report);
•the presence of psychopathic personality disorder (PCL‑R score >30)
•review of history of and current attitudes towards Substance Abuse
•review of reoffending, therapeutic and monitoring risks through a Structured Professional Judgement approach using RSVP including review of a range of materials prepared for prior DSO Act hearings, interviews with Mr Comeagain and discussions with selected Corrective Services personnel.
Mr Comeagain, in my opinion, is able to self-manage to a greater extent than previously considered overtly in materials available; this is evidenced by his recent completion of an ISOTP and his significant reduction in substance use, through what appears to be goal directed choice, the goal being release rather than to avoid reoffending. This is, however, not a positive. Rather it reflects a psychopathic personality disorder and highlights the failure of therapeutic interventions to date (and the unlikelihood of any change resulting from future such intervention); the outcomes being potentially unrelated to these interventions.
I note that both Dr Tanney and Dr Wynn Owen used similar tools to assist them in assessing risk, being the STATIC 99 or STATIC 99 R, the Risk for Sexual Violence Protocol (RSVP), the PCLR‑R. Dr Tanney also used the 3 factor model. There were points of similarity and difference between them in what they drew from those tools.
However, I consider both Dr Tanney and Dr Wynn Owen concluded that there was a serious risk that if Mr Comeagain were not subject to a continuing detention order or a supervision order he would commit a serious sexual offence. The difference between them lay in the level of that risk each assessed.
In my view that level was assessed higher by Dr Wynn Owen than by Dr Tanney.
The reasons for the difference in the assessment, in my view, lie in those aspects referred to from Dr Tanney's testimony and to which Dr Wynn Owen's testimony also speaks. Those aspects are the four issues to which Dr Tanney's testimony refers. Those issues' importance to me lie not only in their relevance to that difference but also to the matter of the choice between the options in DSO Act s 33(2)(a) and (b), as will appear.
I deal now with those four issues.
Substance use
Both Dr Tanney and Dr Wynn Owen identified the relevance of substance use to the risk of Mr Comeagain committing a serious sexual offence in the same way. That was both as marker of stress, which was itself a risk factor for offending, given his difficulties in coping with stress; and as a risk factor in itself, at least as to some substances, most notably alcohol, and in combination with other matters. See also DPP v Comeagain [No 3] [78].
As at the time of the third annual review there had been five occasions since the completion of the Pathways Programme on which samples obtained from Mr Comeagain yielded positive results to which Mr Comeagain had pleaded guilty, as well as a further six occasions in respect of which charges of such results had been made which were then outstanding: DPP v Comeagain [No 3] [18] ‑ [19].
However, as at the time of the fourth annual review Mr Comeagain had last tested positive, for cannabis, on 14 September 2012. That was the only positive result over the period 6 July 2012 to 22 June 2013, when he had been tested on 13 occasions. See DPP v Comeagain [No 4] [11].
Further, the only positive test result over the period 6 July 2013 to 26 March 2014, when he had been tested on 22 occasions, was on 22 November 2013, the sample taken then testing positive for amphetamines. As will be seen Mr Comeagain contested that result.
Both Dr Tanney and Dr Wynn Owen noted that significantly improved test result history. However, they viewed that improvement differently.
Both noted that he was on a programme of taking methadone which could help him deal with stress. Dr Tanney testified that in particular methadone would help him manage the stress in his transition to the community were he to be released on a supervision order, which was part of why Dr Tanney considered it was appropriate to manage him in the community notwithstanding that he did not have fully developed internal mechanisms to cope with stress. However, Dr Wynn Owen testified that methadone would tend to block him from making the changes to enable him from his own resources to deal with stress.
Both noted as to the sample from 22 November 2013 that Mr Comeagain had claimed the positive test result was caused by others. Dr Tanney considered the credibility of that claim derived some support from Mr Comeagain having pleaded guilty in respect of previous positive test results. However, Dr Wynn Owen considered the explanation proffered by Mr Comeagain was unlikely in view of Mr Comeagain's psychopathy, below, and his 'previous behaviours' (9 April 2014, cross‑examination, ts 1059), apparently a reference to his previous test result history considered as a whole.
In any event, both Dr Tanney and Dr Wynn Owen saw the positive test result as one which might be explained by reference to Mr Comeagain's substance use condition being a relapsing and a remitting one.
Overall, both Dr Tanney and Dr Wynn Owen saw the improvement in test results as indicating an improvement in Mr Comeagain's ability to self‑manage. However, both saw that improvement differently.
Dr Tanney saw the improvement as a 'tremendous' achievement, and indicating that he could manage himself in the community (8 April 2014, cross‑examination, ts 921). He saw the risk of reoffending by Mr Comeagain from substance use as having diminished and that Mr Comeagain had recognised the intrinsic value in reducing the risk factors appropriate to him, including substance use and difficulties with relationships. Dr Tanney saw that recognition having been further evidenced by Mr Comeagain having 'spontaneously' offered to Dr Tanney that he wanted assistance to address those two factors, as to substance use in the form of substance abuse counselling (9 April 2014, cross‑examination, ts 959, read with 8 April 2014 examination‑in‑chief, ts 911 ‑ 912).
Dr Tanney acknowledged what Dr Wynn Owen reported Mr Comeagain had said to the latter that Mr Comeagain did not see any issues in relation to substance abuse. However, Dr Tanney indicated that did not accord with anything Mr Comeagain had said to him.
At the same time Dr Tanney acknowledged Mr Comeagain had continuing difficulty dealing with his substance abuse.
For his part, Dr Wynn Owen in his report of March 2014 stated he saw Mr Comeagain as having an ability to self‑manage to a greater extent than had previously been described in other reviews. That greater ability was evidenced by Mr Comeagain's recent completion of the ISOTP and by his significant reduction in drug use. However, that reduction appeared to Dr Wynn Owen to be goal directed, that goal being release rather than to avoid reoffending. The reduction was not a positive but rather a reflection of Mr Comeagain's psychopathic personality disorder, to which I return below, which highlighted the failure of therapeutic interventions to date and the unlikelihood of any change resulting from any future interventions. The reduction was indeed potentially unrelated to those interventions.
In his testimony Dr Wynn Owen elaborated on those matters with respect to substance use as follows (9 April 2014, examination‑in‑chief, ts 1053):
He has managed - albeit with methadone maintenance, he has managed to avoid illicit substance misuse in prison, except for a minor one occasion. When we look at the record prior to the last use, not the November '13 use but the 2012 use, his findings of positive urinalysis were very frequent. That again is a change. Does it significantly play a risk? I'm not sure. I personally don't think it does, because when asked, Mr Comeagain says if I could have a smoke now, I would. I've just chosen not to. I've done the program, it was easy. Why was it easy? Because I just needed to do it.
Rather than engage properly within it? I didn't get a sense of engagement from him. No.
I conclude from this body of evidence that Mr Comeagain has shown a greater capacity for self‑management than had been evident in previous proceedings in respect of his detention under the DSO Act. It proceeds more from an appreciation of what is required of him than from an appreciation of what he needs to do to avoid committing serious sexual offences. However, I consider there are now indications, from his exchanges with Dr Tanney to which I have referred, that he has some such appreciation. I reach some further such indications under the next heading.
Programme completion
The programme completed since 2012 was the ISOTP which Mr Comeagain undertook between 18 March and 24 October 2013 (the 2013 ISOTP). The Program Completion Report for the 2013 ISOTP was exhibit 1.3 (pages 26 ‑ 37) (the 2013 ISOTP Report). Before I review the evidence from Dr Tanney and Dr Wynn Owen under the present heading I should set out the following overall summary from the 2013 ISOTP Report (exhibit 1.3 page 36):
Mr Comeagain completed the Intensive Sex Offender Treatment Program at Bunbury Regional Prison on 24th October 2013. In summary, he met most program objectives, made some treatment gains; was observed to have gained greater understanding of the factors underlying his offending; demonstrated a greater acceptance of responsibility for his behaviour.
Dr Tanney testified that the 2013 ISOTP Report was one of the 'more positive' he had read (8 April 2014, cross‑examination, ts 938). In that regard he referred to the indications in the 2013 ISOTP Report as to Mr Comeagain's functioning in group settings and being helpful to other offenders in the programme, with which, Dr Tanney testified, Mr Comeagain reported to him he associated his greater maturity.
Dr Tanney further testified that there had been significant gains, in the sense of moderation of risk, in respect of certain matters referred to without further comment in the 2013 ISOTP Report. Those matters were Mr Comeagain's own reports of a self‑assessment kind to those responsible for the programme. Those reports were of his being more open and honest with his partner and having a greater understanding of why he had offended as he had; his looking forward to ongoing therapeutic intervention upon his release from custody; his taking responsibility for his offences; his having empathy for his victims; his being aware he had used manipulation of others throughout his life (or, as he indicated to Dr Tanney, what he called his calculatedness); and his being aware of his own victimisation from his childhood and other aspects of his personality, such as low self‑esteem, that he saw as having contributed to his offending, including certain aspects Dr Tanney associated with his psychopathic personality.
For his part, Dr Wynn Owen testified that, while the 2013 ISOTP Report showed 'some learning', that learning had not 'necessarily' translated into responses by Mr Comeagain to Dr Wynn Owen '[t]hat suggested a commitment to put that learning into practice' (9 April 2014, examination‑in‑chief, ts 1038). Dr Wynn Owen noted that, in his view, based on materials available to him, his interviews with Mr Comeagain and Mr Comeagain's psychopathy, the issue for Mr Comeagain was not self‑awareness but rather his making goal‑directed choices being ones related to the goal of achieving release more than the goal of not reoffending. That perhaps to an extent reduced the value of any motivation not to reoffend.
Dr Wynn Owen also testified that the report associated with the previously completed ISOTP from 1999 had been very positive, describing some treatment gains and referring to Mr Comeagain having made full disclosure and taken full responsibility. Yet Mr Comeagain had within months of completing that ISOTP, and while on parole, committed a serious sexual offence against a 9‑year‑old female. Dr Wynn Owen had noted Dr Tanney's references to what he was told by Mr Comeagain about his feeling more mature and that because he was now older and mature he would not reoffend. However, Dr Wynn Owen did not find other evidence of greater maturity.
For his part Dr Tanney testified, as to Mr Comeagain having offended not long after the completion of the 1999 ISOTP, that it was a much shorter programme than its 2013 counterpart.
Dr Tanney acknowledged the possibility, to which he noted attention was drawn in Dr Bannister's report of March 2014, that Mr Comeagain's engagement with the ISOTP was not sincere but rather a form of deception. Dr Tanney further acknowledged that possibility would be consistent with Mr Comeagain's psychopathy. However, he added such deception would be difficult to maintain with all who had observed Mr Comeagain in the 2013 ISOTP programme and elsewhere.
Dr Tanney also noted, in connection with psychological counselling, that Mr Comeagain had acknowledged he would say what he had to say to get out of prison. At the same time Dr Tanney added that Mr Comeagain had said to him he would do, with helpers such as counsellors, that which would enable him to function better in the community.
Dr Wynn Owen noted echoes of the report of the 1999 ISOTP in the 2013 ISOTP Report which led him to the view that the possibility of deception by Mr Comeagain had to be considered together with the greater opportunity in a longer ISOTP programme, particularly for a very adept psychopath, to manage and manipulate the people responsible for the programme's administration. At the same time, Dr Wynn Owen also indicated he had not arrived at a positive finding that Mr Comeagain had pulled the wool over the eyes of those people. He also acknowledged that the authors of the 2013 ISOTP Report were aware of Mr Comeagain's history and of his psychopathy, yet had not mentioned any concerns about the possibility of him having been disingenuous.
A further matter Dr Tanney referred to in connection with his assessment of the positive character of the 2013 ISOTP Report was the reference in it to a 'detailed' (exhibit 1.3 page 33) self‑management plan Mr Comeagain had developed. Dr Tanney laid emphasis on the word 'detailed' and testified it was in its detail a plan for graduated release, beginning outside the metropolitan area, and not a plan he would describe as superficial, or as he understood Dr Wynn Owen to describe the plan, as 'very superficial'.
I also note in this connection Dr Tanney's evidence, as I understood it, that it was a positive for Mr Comeagain that for the first time, or the first time to this extent, he had shown a concern not only to do what he had to in order to leave prison but also that he had plans for what he wanted to do on his release. I understood those plans to include the self‑management plan or aspects of it.
For his part Dr Wynn Owen testified that his characterisation of the self‑management plan as 'very superficial' (exhibit 1 pages 81 ‑ 82) was based on Mr Comeagain having said to him in respect of the plan that there was no risk, and having given him no details as to the plan.
I conclude from this body of evidence that Mr Comeagain has not only provided further indications of a greater capacity for self‑management than had been evident in previous proceedings, in respect of his detention under the DSO Act, but also provided further indications of appreciation of what he needs to do to avoid committing serious sexual offences.
Internal psychological difficulties
As Dr Tanney and Dr Wynn Owen described these covered at least matters of Mr Comeagain's psychopathy; victimisation he had suffered as a result of childhood trauma; issues he had dealing with conflict and stress; and issues he had with trust. Related to these were issues he had had or experienced in relation to his entry into and ongoing psychological counselling that was addressed to one or more of these matters.
I deal with those matters in that order.
As to Mr Comeagain's psychopathy, I have already referred to the evidence of Dr Tanney and Dr Wynn Owen in respect of its relationship to deception and manipulation. Both Dr Tanney and Dr Wynn Owen indicated their view that psychopathy was a strong risk factor, Dr Wynn Owen adding at least where there was a prior history of sexual violence.
Dr Tanney testified that psychopathy created immense difficulties for supervision and management in the community, including not wanting to deal with, and learn from, past offending such as that involving the 9‑year‑old female. Psychopathy was also a risk element for violent sexual offending. He accepted that psychopathy was the most robust predictor of violent sexual offending when deviance was also present. He further testified that, notwithstanding the offence against the 9‑year‑old, he had not arrived at the opinion Mr Comeagain had sexual deviance towards young children.
Dr Tanney testified psychopathy could be described as the most intractable of syndromes and had been established in Mr Comeagain's childhood as part of the victimisation Mr Comeagain indicated to Dr Tanney he wished to do something about. That victimisation derived from physical and sexual abuse.
However, Dr Tanney also testified he saw evidence of possible changes in Mr Comeagain's psychopathy in indicators, if glimmers, supporting such changes. Given the intractability of the condition any such indications were significant. The indicators were of maturity leading him out of aspects of his psychopathy that was evidenced by his ability to form an intimate relationship with another person. In addition, it was a substantial shift for Mr Comeagain that, for first time, in his most recent interviews with Dr Tanney he had not expressed concerns about being too far gone to change, but had shown himself to be forward looking, expressing optimism about making changes in his life. Further, Mr Comeagain had acknowledged his need for assistance rather than the possibility of having it imposed from outside. However, Dr Tanney also testified he was not certain whether this came from Ms Winter, which would raise the possibility that he was using her as a means to get out of custody. At the same time Dr Tanney did not exclude the possibility the acknowledgement was self‑driven.
Dr Tanney further acknowledged the possibility that Mr Comeagain had tricked him through seeking to outguess him, although Dr Tanney had sought to deal with that possibility through the approach he had taken to his interviews with Mr Comeagain.
For his part, Dr Wynn Owen testified that not a lot was to be gained, at least in the short term, from counselling a psychopath. In his report of March 2014 he observed that in his opinion the goal directed conduct he saw in Mr Comeagain's performance in the 2013 ISOTP and the apparent significant reduction of his substance use was a reflection of his psychopathic personality disorder, as I have indicated. Dr Wynn Owen saw the glimmers Dr Tanney referred to as representing limited evidence of any significant change. Dr Wynn Owen testified that there was the potential with psychopaths for them to say different things to different people, with the lack of consistency in what Mr Comeagain said to different people playing 'a little bit' to Dr Wynn Owen's understanding of psychopathy (9 April 2014, cross‑examination, ts 1093). For Dr Wynn Owen this meant there was need to be on guard for the possibility of deception that Dr Tanney referred to in his dealings with Mr Comeagain. However, Dr Wynn Owen accepted it was not the case that just because a person was a psychopath that they lied.
As to Mr Comeagain's victimisation he had suffered as childhood trauma, Dr Tanney identified treatment in that area as a priority for the reduction of his risk of sexual reoffending and that currently it represented an unaddressed treatment issue. For his part, Dr Wynn Owen in both his report and his testimony appeared in the first respect to agree that such treatment was a matter of reduction of risk; but he put such treatment lower down in the intervention needs that would mitigate risk. In his testimony Dr Wynn Owen clearly agreed in the second respect, that victimisation represented an unaddressed treatment need.
Dr Tanney noted that Mr Comeagain had indicated to him he would not want to do treatment for his victimisation with the Department, but would not refuse such treatment were it to be mandated. Rather, he wished to engage his own private counsellor in respect of this area. In any event he had indicated to Dr Tanney that he wished to do something about this treatment need. Consistently over all the time Dr Tanney had known Mr Comeagain he had acknowledged a need to do something about what amounted to his victimisation. However, Dr Tanney testified that it was only recently Mr Comeagain had expressed that need in terms of victimisation.
Dr Tanney indicated that he disagreed with the statement in Dr Wynn Owen's report (exhibit 1.12 page 82) that Mr Comeagain had declined to engage individual counselling to address victimisation as a child. However, Dr Wynn Owen explained his reference as Mr Comeagain saying to him he did not wish to engage in such counselling with the Department.
Dr Tanney acknowledged that it was relevant in connection with what Mr Comeagain had said to him to consider the possibility of manipulation by Mr Comeagain arising out of his psychopathy, although he had not reached the conclusion Mr Comeagain was lying.
Dr Tanney also testified that conditions in custody, having to do with lack of privacy during counselling, were not conducive to Mr Comeagain being open about some of the issues in his victimisation. Further, the Department had, Dr Tanney testified, taken a view different from Dr Tanney's when they had indicated that victimisation was not one of the critical contributors to sexual offending.
As to Mr Comeagain's issues dealing with conflict and stress, Dr Tanney identified treatment in that area as a priority for the reduction of his risk of sexual offending. For his part, Dr Wynn Owen's evidence was that that area was one of risks that could contribute to reoffending.
Dr Tanney noted Mr Comeagain did not have fully developed internal mechanisms to deal with stress, as I have previously noted. Dr Tanney further noted that Mr Comeagain had accepted the need to do something about conflict resolution, in the sense of managing the stressors in the community he would encounter, and was willing to accept Departmental counselling in the area. However, Dr Tanney was uncertain whether this acceptance or impetus came from Ms Winter or arose internally. Dr Tanney also testified that Mr Comeagain had had opportunities in the past to work in counselling with those issues but had not done so.
As to Mr Comeagain's issues with trust, Dr Tanney testified that he had not been trusting in all of the programmes he had been part of and that this represented a challenge for him in undergoing programmes in the future. For his part Dr Wynn Owen's evidence was to the same effect.
As to issues Mr Comeagain had had or experienced in entry into and continuing psychological counselling, Dr Tanney acknowledged the history of the psychological counselling Mr Comeagain had experienced founded strong reservations about the commitment Mr Comeagain had recently expressed to him about submitting to monitoring and treatment under a supervision order, as well as about Mr Comeagain's capacity to fulfil that commitment. At the same time, Dr Tanney testified that supportive of that commitment were the deterrence deriving from Mr Comeagain's lengthy period in custody, and Mr Comeagain's own self‑belief that he had matured beyond coping by maladapted behaviours.
However, Dr Tanney testified that in his interviews with Mr Comeagain, Mr Comeagain had rejected almost all treatment possibilities, offering explanations in some cases. Further, Dr Tanney testified that Mr Comeagain had a history with counsellors from the Department and a counsellor he had secured privately which was not encouraging, in the sense he had been involved with about six different counsellors over the period 2007 to 2012, being the date of the third annual review, listed as he acknowledged in Dr Bannister's report of March 2014. In none of those cases were Mr Comeagain and the counsellor able to manage an engagement, with a partial qualification it seems for one Departmental psychologist, Ms Ballantyne, to whom at one point he self‑referred and with whom he engaged for a length of time, although there had finally been a disengagement. This list, Dr Tanney testified, would not be encouraging towards the likelihood that Mr Comeagain would engage with someone else in the future. For his part, Dr Wynn Owen appeared to testify as to that list for 2007 to 2012 to a similar effect.
Although it would not seem that either Dr Tanney or Dr Wynn Owen specifically reported or testified on the history since the third annual review that is contained in Dr Bannister's report of March 2014 (see exhibit 1.13 pages 85 ‑ 87), that history would clearly seem to be of a similar sort.
However, Dr Tanney testified that Mr Comeagain had indicated to him a willingness to accept programmes from the Department in relationship management, conflict resolution, substance abuse treatment and in the form of a sex offender maintenance programme. Dr Tanney testified Mr Comeagain had particularly emphasised relationship management, because of the importance he attributed to his relationship with Ms Winter.
At the same time Dr Tanney testified that Mr Comeagain had indicated to him he might not like doing those programmes but would do them if that were what was needed for him to stay out of custody.
As I have previously noted Dr Tanney testified that Mr Comeagain would not want to do a programme with the Department on victimisation, although he would not refuse if he were ordered to do one.
I accept, in respect of issues Mr Comeagain had had or experienced in entry into and remaining in psychological counselling with Ms Wager, her evidence at the third annual review, to which as I have indicated my attention was particularly drawn (see 27 June 2012 ts 664 ‑ 665), indicated her difficulty in her dealings with Mr Comeagain stemmed at least in significant part from the conditions, in custody, in which those dealings occurred. Further, Dr Tanney noted the difficulty for Mr Comeagain in establishing a rapport with psychologists he had dealt with when there had been changes in them over time.
However, I should add that I do not consider this affects the conclusion I have arrived at on this body of evidence namely that I do not have evidence of any significant benefits from one‑to‑one psychological counselling thus far.
I should note that Dr Tanney testified that the fact Mr Comeagain might not have engaged with treatment in the past did not in his view render Mr Comeagain inappropriate for release into the community on a supervision order. At the same time Dr Tanney noted it would be better for the protection of others that Mr Comeagain underwent treatment because he wanted to do so and not simply because he had to do so. However, Dr Tanney did not accept the view in Dr Bannister's report of March 2014 (exhibit 1.13 page 92) that any direction that Mr Comeagain engage in individual psychological treatment as part of a supervision order would be 'fruitless'. For this purpose, Dr Tanney distinguished, as he noted Dr Bannister had done at that point in his report, between psychological treatment and psychological monitoring: the latter would be of value. I understood Dr Bannister to testify to a similar effect when he said that that view of his was targeted at risk management, not risk reduction.
Dr Tanney testified that the view in Ms Dabala's report of March 2014 (exhibit 1.14 page 104) that Mr Comeagain had expressed to her that he did not need counselling to deal with personal, re‑integration and risk of reoffending issues, as he knew how to deal with them by ignoring them and not talking about them, was 'certainly' not his experience of his conversations with Mr Comeagain (9 April 2014, cross‑examination, ts 992).
I conclude from this body of evidence that Mr Comeagain has shown relatively little indication of changes in his internal psychological condition in the respects of concern for the risk of serious sexual reoffending. This is particularly in respect of his psychopathy. However, this is not to say there are no indications of possible change. And in my view the other changes I have described under previous headings provide reason to believe that risk is more manageable than it was previously.
Social relatedness
In this context social relatedness goes to matters of Mr Comeagain's relationship with Ms Winter, particularly in terms of his capacity to maintain it in the face of stress; and his relationship with other persons, both intimates (his family) and members of the wider community.
As to social relatedness generally Dr Tanney noted that Mr Comeagain's offending had been associated with a minimum of social interaction before the sexual assault. This represented a matter to be concerned about in terms of risk of reoffending. Dr Wynn Owen noted that problems with forming stable age appropriate romantic and/or sexual relationships as a factor associated with an increased risk of violence and general criminality. He also noted that the failure to form and maintain a social support network through lack of desire, capability or opportunity was a factor associated with recidivism in sex offenders.
As to Mr Comeagain's relationship with Ms Winter, I have already noted Dr Tanney's evidence as to Mr Comeagain having particularly emphasised relationship management, because of the importance he recognised of his relationship with Ms Winter and the fact he had 'spontaneously' offered to Dr Tanney that he wanted assistance to address relationships.
Dr Tanney's evidence was also was that Ms Winter was the 'lynchpin' in the sense of being Mr Comeagain's sole source of social support at present (8 April 2014, examination‑in‑chief, ts 881) and being a conscience for him, without whom there was every expectation that patterns and behaviours of Mr Comeagain's psychopathic personality style would predominate. Dr Tanney's evidence was also that Mr Comeagain had not had any prior experience of a successful relationship in community. However, Dr Tanney noted the relationship with Ms Winter had endured while Mr Comeagain was in custody, concededly a different environment to being in the community, but one for Mr Comeagain that had included not just prison visits but also daily telephone calls and development by the two of problem solving strategies.
At the same time Dr Tanney accepted that, based on Mr Comeagain's history, it was likely the relationship with Ms Winter was a parasitic one typical for a psychopath, and such parasitic relationships were unlikely to endure; however, the possibility it had or would become a symbiotic relationship that could endure could not be excluded, given the relationship's longevity to date. At the same time, Dr Tanney testified that the chances the relationship would fall apart were 'extremely high' (8 April 2014, examination‑in chief, ts 892). In that circumstance Mr Comeagain would need help and support to get over that falling apart.
In addition, Dr Tanney recognised there was some concern arising from the prospect of Ms Winter returning to work after a period as short as three months after Mr Comeagain's release. For his part, Dr Wynn Owen expressed a similar concern.
I note in respect of the matter of stress on the relationship and the prospect of Ms Winter returning to work the evidence from exhibit 3 of the likely loss of her employment. Exhibit 3 was not available to Dr Tanney or Dr Wynn Owen when they gave their evidence.
Dr Wynn Owen's evidence was also that relationships like that with Ms Winter were potentially protective; however, there was a concern in the literature about the relevance of relationships commencing in prison, namely that they were commenced to achieve a goal or an end.
Dr Wynn Owen noted the value of Ms Winter's preparedness to act as carer for Mr Comeagain on his release. Dr Wynn Owen also noted as a potentially positive factor the longevity of the relationship with Ms Winter and the frequency of the contacts between her and Mr Comeagain. Dr Wynn Owen further noted as a positive Ms Winter's good relationship with the Department.
However, Dr Wynn Owen noted the stress for Mr Comeagain arising out of the degree of reliance on Ms Winter and the tensions and expectations associated with that reliance on her on his release into the community.
As to Mr Comeagain's relationship with intimates and non‑intimates, Dr Tanney noted Mr Comeagain's desire to re‑connect with family members while noting that the closer and more meaningful to him people were, the greater the stress for him from relating to them.
I have concluded from this body of evidence that, while there is no indication of change in Mr Comeagain's capacity for social relatedness generally, and that his relationship with Ms Winter remains a highly vulnerable one, there continues to be reason to see the value to him in the community of his relationship with her, not least in his own appreciation of its importance to him.
Differences between the extent of the time spent by the two psychiatrists with Mr Comeagain
I should note that Dr Tanney had provided psychiatric reports in respect of Mr Comeagain for the purposes of DPP v Comeagain, the decision on the application under DSO Act pt 2 div 2 (see [13]): five interview sessions of nearly 11 hours in all); and the decisions in DPP v Comeagain [No 2], the second annual review (see [13] ‑ [19]) and DPP v Comeagain [No 3], the third annual review (see [41]). For each of those last two annual reviews his evidence was on each occasion that he spent at least three hours in all with Mr Comeagain. For the purposes of the prevent review, he interviewed Mr Comeagain twice, for 3.1 hours.
The total period of time Dr Tanney spent with Mr Comeagain in respect of proceedings under the DSO Act significantly exceeded the corresponding period spent with him by Dr Wynn Owen. Dr Wynn Owen was not involved in any of the proceedings prior to the present ones. For the purposes of the present proceedings Dr Wynn Owen conducted two interviews with Mr Comeagain which he testified represented a total of four hours with him.
Dr Tanney testified that his having had the four occasions over the period 2008 to the present review on which he had reviewed Mr Comeagain, including but not limited to the interviews with him on all of those occasions, had made him more confident of his assessment of risk in respect of him, particularly for the purposes of identifying strategies for the management of that risk. Dr Tanney further testified that simply because he had spent more time with Mr Comeagain meant he had better insight into assessing Mr Comeagain's responses to questions. Further, in relation to the possibility that Mr Comeagain had deceived, both the facilitator who had the opportunity to observe Mr Comeagain over the length of the 2013 ISOTP, and those assessing the 2013 ISOTP Report, Dr Tanney testified that the length of that programme, at over 300 hours, meant he 'would hope' the facilitator would have seen some indication of that possibility (8 April 2014, cross‑examination, ts 937).
Dr Tanney also acknowledged the possibility that Mr Comeagain had learned in the past two years more things he had to do to convince him, which was a possibility of a kind it was always important to acknowledge when one was working with people who had a psychopathic personality. However, it was not clear this was a reference to the possibility of Mr Comeagain learning from previous interviews Dr Tanney had conducted, as opposed to other experiences of Mr Comeagain's.
Dr Wynn Owen testified that greater time with Mr Comeagain could be seen in two ways, one as greater opportunity to come to know him and one as greater opportunity for an adept psychopath to manipulate the interviewer. Dr Wynn Owen also testified that the interview was only a part of a process of systematic review.
I should note that Dr Tanney was not asked and did not testify as to whether or not the greater time he had spent with Mr Comeagain in interviewing him over the four occasions meant Mr Comeagain had had a greater opportunity to manipulate him.
I should further note that Dr Tanney had testified in cross‑examination that, in the conduct of his interviews with Mr Comeagain, apparently referring to all of them over the four occasions, he had responded to the possibility Mr Comeagain would outguess him by making the interview as open‑ended as possible. Dr Tanney also testified in cross‑examination that he had neither a therapeutic nor a clinical relationship with Mr Comeagain. Dr Tanney was not asked in re‑examination to go into his testimony in either respect.
It was put to me by senior counsel for the DPP that the view might be taken that on occasion Dr Tanney saw Mr Comeagain more as a patient on whose welfare Dr Tanney was focussed and that his history of contact with Mr Comeagain might have caused Dr Tanney to be emotionally involved in the proceedings. I should indicate that I do not hold the view described, principally because of the matter in the previous paragraph, as well as the manner in which Dr Tanney gave his evidence. I should further indicate that the possibility of the investment described was never put to Dr Tanney; and, in any event, I cannot find support for it in his evidence or his manner of giving it.
I conclude that in weighing the evidence of Dr Tanney and Dr Wynn Owen, particularly in cases where their evidence is that Mr Comeagain has stated things to Dr Tanney which he has not stated to Dr Wynn Owen, I should take account of the fact that the total interview time Mr Comeagain has spent with Dr Tanney is greater than that which he has spent with Dr Wynn Owen. This is of significance in my view because of what Mr Comeagain indicated to Dr Tanney as to his appreciation of the need to change factors relevant to his risk of reoffending.
(b) any other medical, psychiatric, psychological or other assessments relating to Mr Comeagain
There was one such assessment in this case, that of Dr Bannister (exhibit 1.13).
I have previously made reference to Dr Bannister's report of March 2014 in a number of respects while referring to the evidence of Dr Tanney and Dr Wynn Owen. I note here a number of further such respects as well as certain other aspects of Dr Bannister's evidence.
Dr Bannister interviewed Mr Comeagain once, for approximately 130 minutes and drew on other matter. That other matter was a consultation with Dr Ewers; perusal of file information, counselling case notes, Total Offender Management Solution (TOMS) and prior professional assessments as well as the transcripts of prior reviews of him under the DSO Act, the bulk of which he read before preparing his report of March 2014, some of which he read afterwards.
Dr Bannister's evidence, in both his report of March 2014 and his testimony, was that Mr Comeagain had acknowledged to him that his engagement in prior treatment had not been genuine, although this acknowledgement did not extend to the 2013 ISOTP, for which Dr Bannister testified lack of genuineness was a possibility only, but a lack that was 'entirely possible' (17 April 2014, examination‑in‑chief, ts 1108). This evaluation of that possibility was based upon three matters.
The first matter was Mr Comeagain's indication to Dr Bannister that he did not need to engage with treatment, an indication Dr Bannister saw in Mr Comeagain's statement to him that once any supervision order ended he would enjoy having the choice to engage in substance use, which he said to Dr Bannister he did not believe was necessarily connected to his offending.
The second matter, as I understood Dr Bannister's evidence, was that of his history of reoffending within three months after the completion of the 1999 ISOTP and the 13 charges for drug use he had received after the completion of the Pathways Programme, where for both of those programmes he had received positive reports in a similar way he had received a positive 2013 ISOTP Report.
The third matter was Mr Comeagain's psychopathy.
Dr Bannister confirmed, however, that it was also 'entirely possible' Mr Comeagain had made treatment gains after the third annual review (17 April 2014, cross‑examination, ts 1126 ‑ 1127). Dr Bannister further confirmed, to much the same effect as Dr Tanney, that if the trained and experienced facilitators of the 2013 ISOTP Program had felt there was a possibility Mr Comeagain was being insincere they would have noted that in the 2013 ISOTP Report, with it being very difficult, if not impossible, in a programme of that duration, for an offender to maintain such a level of deception.
Dr Bannister's report of March 2014 stated that genuine engagement was important for two reasons: first, in its absence a change in behaviour and attitude was unlikely, and second, an assessment of the participation and performance by an offender during a treatment would not necessarily be a true indication that that any changes observed after completion might be retained in the long term. This evidence was not challenged.
Dr Bannister identified as particular treatment needs for Mr Comeagain - particular because they were 'particularly risk‑relevant' (17 April 2014, examination‑in‑chief, ts 1113) - and to a similar effect to Dr Tanney and Dr Wynn Owen, the following: conflict resolution, including relationship conflict, stress management and substance use.
Dr Bannister testified that Mr Comeagain had not articulated to him plans for risk‑management in high risk situations, apparently on the basis Mr Comeagain had explained how he had done what was asked of him and he would not have problems on his release. Dr Bannister added in cross‑examination that Mr Comeagain had indicated to him he had no internal plans regarding possible supervision or managing his risk in the community as he did not contemplate any high risk situations, he was 40 years old, he had been abstinent from substances and the court had not directed him in that regard.
I have previously referred to Dr Tanney's evidence as to these matters.
However, Dr Bannister confirmed in his testimony that, as I have previously indicated, while treatment could not be relied upon to reduce Mr Comeagain's risk of reoffending, monitoring by the Department's dangerous sex offender psychology team in which Mr Comeagain was directed to engage, with his alternative being a return to prison, would be more successful. Dr Bannister concluded that Mr Comeagain had demonstrated, given sufficient external motivation, that he could regulate his behaviour to some degree. Dr Bannister based that view upon the notable reduction since the third annual review in Mr Comeagain testing positive for drugs.
However, Dr Bannister also testified that, if while Mr Comeagain was in the community his only motivation not to use substances was to achieve the goal of not going back to prison that would be a concern, in the sense that it would be beneficial if such a motivation were linked with a genuine desire to change.
At the same time Dr Bannister testified that past behaviour was the best predictor of future behaviour, as both Dr Tanney and Dr Wynn Owen had confirmed in their testimony. However, he testified, past behaviour consisting in reoffending did not mean that it should be concluded that a risk would be unmanageable without considering the person's other circumstances.
(c) propensity
I take the view that the legislature has used the word 'propensity' in its ordinary meaning in the context of the criminal law, as described in DPP v Comeagain [36], quoting Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 (Murray AJA), as follows:
In GTR Murray AJA described 'propensity':
'In my view "propensity" in this context means what it ordinarily means in the context of the criminal law. It means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder. [178]'
On the evidence before me I consider that Mr Comeagain has a propensity to commit serious sexual offences in the future against adult female victims involving significant violence and a minimum of social interaction before the offending.
I so conclude because of his history of sexual offending over some years and notwithstanding his previous sentences as well as his previous completion of the 1999 ISOTP. I also recognise that the offending on that last occasion was against a 9‑year‑old female.
I also so conclude on the analysis of that offending in Dr Tanney's report of March 2014 as follows (exhibit 1.11 page 55):
It is notable that he has no history of significant violence beyond the sexual offendings. The victim was in all circumstances but one an adult female who was a stranger to him. The offending followed a scenario of some emotional disappointment or distress, influence of illicit substances, and a minimum of social interaction before the sexual assault. More recent offences in 1999 and 2000 have escalated to involve premeditation.
Dr Tanney confirmed in his testimony that the most likely risk scenario was not a juvenile female, but an adult female previously unknown to him. Dr Wynn Owen testified to a similar effect.
(d) pattern
On the evidence just reviewed, I consider that there is a pattern of offending behaviour on the part of Mr Comeagain of serious sexual offending with adult females who had been strangers to him involving significant violence and a minimum of social interaction before the offending.
(e) and (f) efforts to address the cause or causes of behaviour including participation in any rehabilitation programme and its effect
As to efforts to address the cause or causes of behaviour generally, I have referred to the principal risk factors for Mr Comeagain as identified in the evidence by Dr Tanney, Dr Wynn Owen and Dr Bannister; and I have referred to evidence from them as to Mr Comeagain's address of those factors.
As to participation in any rehabilitation programme and its effect in particular, I have already referred to matter in the evidence of Dr Tanney, Dr Wynn Owen and Dr Bannister in respect of the rehabilitation programme Mr Comeagain has completed since the DPP v Comeagain [No 4], being the 2013 ISOTP. That is the only such programme.
I have also noted, as I have indicated, evidence from all three as to the two other such programmes Mr Comeagain has done since DPP v Comeagain, namely, the 1999 ISOTP and the Pathways Programme.
(g) antecedents and criminal record
There have been no changes in respect of these since the first annual review.
I have previously set out the description of those antecedents and that record by reference to DPP v Comeagain [No 2] [22] ‑ [25]. I adopt that description for my purposes.
(h) the risk of a serious sexual offence occurring
As I have previously indicated it is not in dispute before me that Mr Comeagain is a serious danger to the community, in the sense that if he were not subject to a continuing detention order or a supervision order there is an unacceptable risk he would commit a serious sexual offence.
However, before undertaking the balancing exercise described in Italiano v The State of Western Australia [2009] WASCA 116 [4], [46] (Buss JA), referred to in The State of Western Australia v West [52](e), I must address the likelihood that Mr Comeagain would commit a serious sexual offence if he were not subject to a continuing detention order or a supervision order.
I note the opinions of Dr Tanney and Dr Wynn Owen in this respect.
Dr Tanney's report of March 2014 indicates that as at the time of his report for the purposes of the third annual review there was a 'very high risk of sexual reoffending should no further treatment or risk management be undertaken' (exhibit 1.11 page 60).
As I have already indicated, Dr Tanney's report of March 2014 indicates that since that time that risk has 'further reduced', but '[t]here remains a significant risk of sexual reoffending' (exhibit 1.11 page 70; see also page 65).
As I have also previously indicated, Dr Wynn Owen's report of March 2014 indicates that Mr Comeagain 'currently presents a high risk of serious sexual offending if not subject to detention or supervision' and that his 'reoffending risk has not changed significantly since [the third annual review]' (exhibit 1.12 page 82).
On the evidence of the two psychiatrists, I find the likelihood of Mr Comeagain committing a serious sexual offence is at least a significant one.
the need to protect the community from that risk
In the present respect I note again my findings as to propensity and pattern in relation to serious sexual offending by Mr Comeagain.
I consider there is a strong need to protect the community from the risk I have described in terms of that propensity and pattern.
(j) any other relevant matter
There were no such matters put to me.
Conclusion: whether I find Mr Comeagain remains a serious danger to the community
Both counsel accepted that the only appropriate finding on the evidence before me is that Mr Comeagain does remain a serious danger to the community.
However, in accordance with DPP v GTR [34] (Steytler P & Buss JA), I must identify what it is that constitutes the risk and makes that risk unacceptable, and I must consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence.
What constitutes the risk in this case and makes that risk unacceptable is the level of likelihood as assessed by Dr Tanney as 'significant' and by Dr Wynn Owen as 'high', of serious sexual offending of the kind I have identified as having been described in very similar terms by both Dr Tanney and Dr Wynn Owen, against the backdrop of the continuing treatment needs each described.
I consider that factor has been proved to a high degree of probability by acceptable and cogent evidence. I so consider by reference to my review of the matters to which DSO Act s 7 says I must have regard.
I turn now to the choice I must make on that determination.
The choice of order to make: the applicable law
As I previously indicated I drew from The State of Western Australia v West as quoted in DPP v Yates, I should choose the order that is least invasive or destructive of Mr Comeagain's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 [49] (Murray J), where a continuing detention order was made.
I should add from Latimer the following, which was accepted in Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 [15] (Hall J), where a supervision order was made:
The [DSO] Act prescribes no overall limit of time after which the prisoner must be released, and so it can be seen that a continuing detention order, when made, has the potential to last indefinitely, for a period well beyond the term of any sentence of imprisonment which might be imposed as punishment upon the commission of a serious sexual offence by the offender. It is having regard to that such matters that I express the opinion that the scheme of the Act requires the Court to do no more than is necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection for the community [24].
Of course, the paramount consideration is the need to ensure the protection of the community (DSO Act s 33(3)).
Thus, as I have previously indicated I drew from DPP v Williams [86] (Wheeler JA, Le Miere AJA agreeing), if I cannot be satisfied that the community is adequately protected by a supervision order then I must make a detention order. See also DPP v Comeagain [92] (McKechnie J).
Making the choice
I have noted the bases upon which the choices were made in the previous decisions of the court concerning Mr Comeagain under the DSO Act:
•See DPP v Comeagain [76] ‑ [93] (McKechnie J).
•See DPP v Comeagain, first annual review, ts 309 ‑ 310 (Murray J).
•See DPP v Comeagain [No 2] [24] ‑ [28] (Blaxell J).
•See DPP v Comeagain [No 3] [75] ‑ [79] (Sleight C).
•See DPP v Comeagain [No 4] [14] ‑ [15] (Jenkins J).
From what I can determine from those parts of those decisions, the proposed supervision order conditions for their purposes were the same or very similar to those before me.
Those before me are set out in Ms Dabala's report of March 2014 (exhibit 1.14 pages 109 ‑ 113). They are stringent and restrictive. They call for a team‑based approach involving the Department of Community Corrections, police and others.
Those conditions include:
(1)reporting and monitoring conditions, including electronic monitoring and the possibility of visits for monitoring purposes to the residence where he will be with Ms Winter that is located in a semi‑rural area and that is prescribed for Mr Comeagain;
(2)compliance with directed psychological monitoring/management arrangements and with the requirements of programmes designed to address his offending behaviour or risk of serious sexual offending as directed;
(3)the exchange of information between persons or agencies involved in the implementation supervision of the order, including confidential information;
(4)restrictions on contact with victims;
(5)curfew arrangements;
(6)compliance with medication directions;
(7)prevention of high risk situations, including not to possess, consume or use alcohol and subjection to urinalysis; and
(8)to have no contact with any child under the age of 16 years unless authorised or in compliance with certain restrictive conditions.
These conditions would derive considerable support from the role of Ms Winter who would, I am satisfied, bend her efforts to ensure compliance were Mr Comeagain to be released to the community under those conditions. I have already referred to that role and its vulnerability if Mr Comeagain were released into the community when I reviewed the evidence of Dr Tanney and Dr Wynn Owen. I consider that, in particular, there are stresses likely to come from the effect on her employment given what appears in the letter from her employer to Ms Winter (exhibit 3). I further consider that the likelihood Ms Winter would have to seek out new employment and commence it in accordance with its terms might impair what support she is able to provide to Mr Comeagain.
However, I have also noted the thought Mr Comeagain and Ms Winter have given to the matter of stress on their relationship. I have further noted the longevity of the relationship, while also noting Dr Tanney's and Dr Wynn Owen's evidence as to the low likelihood of the relationship enduring based on the experience of relationships like it.
In my view that thought and that longevity, even after allowing for the other matters I have referred to, goes to reduce significantly the concerns that those matters might nullify those efforts.
I note that, as Ms Dabala indicated in her evidence, a number of these conditions, most notably those for electronic monitoring through GPS technology, and attendance at the residence by police, would by virtue of the location of that residence be significantly more difficult than for a residence in the metropolitan area. However, I understood her evidence to be that those conditions would not be rendered nugatory by those difficulties.
Also, as Dr Tanney indicated in his evidence, it is not clear that all of these conditions would be workable, most notably those for exchange of confidential information as to treatment of Mr Comeagain in the case of treatment by a private counsellor who might well find such an exchange made his acceptance of Mr Comeagain as a client impossible. However, I am not satisfied appropriate protocols could not be arrived at to resolve that issue.
At the same time, overall it appears to have been common ground before me that, notwithstanding these conditions, there was still scope for serious sexual reoffending by Mr Comeagain.
The question for me is whether these conditions, subject to such modifications as might be appropriate, would provide adequate protection for the community, in view of the position in which Mr Comeagain now is.
That position includes most notably his successful completion of the 2013 ISOTP programme; his significantly improved record in relation to the use of substances, even allowing for the incident in November 2013; what is common ground between Dr Tanney and Dr Wynn Owen, that Mr Comeagain has shown greater capacity for self‑management than was evident previously; and my conclusions on the evidence of those two psychiatrists above.
I consider that Mr Comeagain's position in those respects distinguishes what is before me for the purposes of the choice I must make from what was before McKechnie J, Murray J, Blaxell J, Sleight C and Jenkins J for the purposes of their choices.
However, Mr Comeagain's position in those respects might be seen to be qualified to an extent, by what he indicated to Dr Wynn Owen, as I have previously described, as to him not posing a risk of reoffending; to Dr Bannister, as I have previously described, that he did not see any intrinsic value in addressing risk relevant factors as they related to him; and by what he indicated to Ms Dabala, as I have previously indicated, in my view to a similar effect, that he did not need counselling to deal with personal, reintegration and risk of reoffending issues as he knew how to deal with them by ignoring them and not talking about them.
Assessing the significance of those indications is not a straightforward task. That is for two reasons.
First, I note the position of Mr Comeagain in the respects I have identified, and what as I have previously indicated he said to Dr Tanney about the need to address a number of factors relevant to his risk of serious sexual reoffending which has no parallel in what he said to the others. On those two matters, I consider the indications to Dr Bannister and Ms Dabala are not a wholly reliable indicator of Mr Comeagain's attitudes in those respects, after allowance for the possibility of deception and manipulation by Mr Comeagain to which I referred when I reviewed Dr Tanney's evidence.
That is, on the position before me there is greater reason for (guarded) optimism in respect of change for the better for Mr Comeagain under a supervision order than in any previous proceeding under the DSO Act. This would especially be so having regard to the substantial duration of the supervision order of the magnitude (10 years) referred to by Dr Tanney in his evidence.
Second, it appears to me, as Dr Bannister's report of March 2014 states (exhibit 1.13 page 91 [40]), 'future successful management of his risk is not likely to be closely tied to his ability to make treatment gains'. I accept, as I have previously indicated, that there would be greater prospects for successful management of risk if Mr Comeagain participated in that management with a greater appreciation of how he might avoid serious sexual reoffending than I have concluded he has shown. However, as I have also previously indicated, I consider there are signs of such an appreciation.
Conclusion on choice and orders
I am satisfied that the community would be adequately protected by a supervision order with strict terms like those in Ms Dabala's report of March 2014 (exhibit 1.14 pages 109 ‑ 113) which are followed in exhibit 4.2. I so conclude in view of the position in which Mr Comeagain now is, after taking account in the manner I have described of the indications from Mr Comeagain to Dr Bannister and to Ms Dabala I have referred to. That position, in my view, makes it possible for me to be so satisfied because Mr Comeagain's risk can be adequately managed under such a supervision order.
I should add that the supervision order should be one of a substantial duration. I note the period of 10 years commended by Dr Tanney.
I should further add that the final terms of the supervision order, most particularly its duration, should be settled by the court with the assistance of the parties.
I will hear from the parties accordingly.
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