Director of Public Prosecutions (WA) v Corbett [No 3]
[2014] WASC 442
•25 NOVEMBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- CORBETT [No 3] [2014] WASC 442
CORAM: HALL J
HEARD: 25 NOVEMBER 2014
DELIVERED : 25 NOVEMBER 2014
FILE NO/S: DSO 3 of 2012
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
TYRONE KINGSLEY CORBETT
Respondent
Catchwords:
Criminal law - Dangerous sexual offender - Breach of supervision order - Whether suspension order should be amended or indefinite detention order made
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Supervision order rescinded
Indefinite detention order imposed
Category: B
Representation:
Counsel:
Applicant: Mr A L Troy
Respondent: Ms M R Barone
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Corbett [2012] WASC 438
Director of Public Prosecutions (WA) v Corbett [No 2] [2013] WASC 474
TJD v The State of Western Australia [2014] WASCA 10
HALL J: This is an application pursuant to s 23 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). The applicant seeks findings that the respondent has contravened the conditions of an amended supervision order made on 24 March 2014 and that in consequence an order be made that he be detained in custody for an indefinite term for control, care or treatment. In the alternative the applicant seeks that the supervision order be amended in such terms as the court thinks fit.
This is not the first time an application to revoke or amend a supervision order has been made in respect of the respondent. As I will detail, the respondent has previously contravened the conditions of a supervision order and was released on an amended order.
Background
On 16 November 2012 McKechnie J determined that the respondent was a serious danger to the community and that he should be released on supervision with strict conditions: Director of Public Prosecutions (WA) v Corbett [2012] WASC 438. The respondent was not immediately released as appropriate accommodation only became available on 18 February 2013.
The respondent was subsequently charged with 11 offences of contravening the conditions of the supervision order, contrary to s 40A of the DSO Act. He pleaded guilty to seven of the charges and not guilty to the remaining charges. He was found guilty of two of the charges to which he had pleaded not guilty and was acquitted of the remaining two charges: Director of Public Prosecutions (WA) v Corbett [No 2] [2013] WASC 474. The offences of which the respondent was found guilty included breaching a curfew condition on multiple occasions, permitting other people to remain at his residence contrary to the directions of a corrections officer, failing to attend a scheduled psychologist counselling session and failing to attend a scheduled meeting with a community corrections officer. On 24 March 2014 the respondent was sentenced for these offences to a total effective sentence of 7 months' imprisonment which was backdated.
In light of the proven contraventions, it was open to revoke the supervision order and order that the respondent be detained in custody for an indefinite term or, alternatively, make an order amending the conditions of the supervision order: s 23 DSO Act. The Director of Public Prosecutions did not seek a revocation of the supervision order at that time. The available evidence was that the respondent had reflected on the need to comply with the conditions, had engaged well with his treating psychologist and was motivated to comply with the supervision order if released. A significant factor contributing to the earlier breaches was a relationship with a female partner. It would appear that that partner and her family had placed pressure on the respondent to allow others, including intoxicated females, to stay at his home.
In these circumstances, Corboy J amended the original supervision order. The respondent was released on an amended order dated 24 March 2014. One of the amendments was to a condition requiring the respondent not to be in the presence of females who were consuming alcohol. Corboy J amended this condition in order to make it more readily understandable by the respondent.
On 16 April 2014 the respondent again breached the conditions of the amended supervision order. He was charged with three offences contrary to s 40A(1) of the DSO Act. In addition, an application was made by the DPP for an order under s 23. In these circumstances the s 40A charges could be dealt with in this court: see s 40B(2) of the DSO Act.
On 15 May 2014 the respondent pleaded guilty to each of the three charges. I will refer to the facts of the offences later in these reasons. On 27 June 2014 I imposed a sentence of 8 months' imprisonment on each of the three offences, those sentences to be served concurrently. The sentences were backdated to commence on 17 April 2014 when the respondent first went into custody. The application under s 23 was not dealt with at that time as the respondent sought that it be adjourned to a later date to allow him to engage with a psychologist whilst serving his sentence. It was hoped that this might improve his prospects of being again released on a supervision order.
The contraventions
The facts of the contraventions are that as at 16 April 2014 the respondent was subject to the amended supervision order. That order included the following relevant conditions:
15.For three months from today's date (24 March 2014) be subject to a daily curfew between the hours of 6.00 pm and 6.00 am unless exemption from the curfew for individual nights is approved in advance by a CCO.
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33.Not possess, consume or use alcohol.
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35.To take all reasonable steps to remove himself from the presence of females who possess or have under their control alcohol or prohibited drugs or who are consuming alcohol or using prohibited drugs or he knows, or ought reasonably to have known, have consumed alcohol or used prohibited drugs other than an adult female with whom he has an ongoing sexual relationship and to whom full disclosure has been made pursuant to the following condition.
36.Make full disclosure regarding his past offending and the current order to anyone with whom he commences a domestic, romantic, sexual or otherwise intimate relationship which disclosure can be confirmed by the CCO or a police officer.
At 6.26 pm on 16 April 2014 the Department of Community Corrections electronic monitoring officers became aware that the respondent was not at his residence after the curfew had commenced. The respondent was contacted by monitoring officers and he told them that he was on a bus travelling from Mirrabooka to his home residence.
At 10.35 pm the same day police attended at the respondent's residence. Inside his residence they located an intoxicated adult female. She was found in a cupboard where she had been told to hide by the respondent. The respondent stated that he was aware that the female had been drinking alcohol. Police also located a wine bladder containing alcohol. The respondent smelt strongly of alcohol and provided a preliminary breath test which indicated positive. The respondent was then conveyed to the Perth Police Station where he underwent an evidential breath analysis which gave a reading of 0.155 grams of alcohol per 100 ml of blood calculated to 0.140 at the time of police attendance. The respondent admitted to the police officers that he had drunk alcohol. He participated in a recorded interview in which he made partial admissions.
In the sentencing proceedings, it was submitted on the respondent's behalf that the woman found at his residence had consented to sexual intercourse with him. However, it was accepted that she was intoxicated, was not a person with whom he had formed an established sexual relationship and, in any event, had not been informed that he was the subject of the supervision order. It was suggested that an attempt by the respondent to engage in a consensual sexual relationship with an adult female was a positive sign, but it was accepted that the particular circumstances involved a risk of further sexual offending.
Section 23 application
The application under s 23 of the DSO Act was adjourned to 24 November 2014. On that day the applicant tendered two books of materials. The first book included evidence regarding the contraventions, a treatment progress report from Ms Chantelle Place, a forensic psychologist and a psychiatric report from Dr Sam Febbo. The supplementary book included an updated psychiatric report from Dr Febbo, an updated treatment progress report by Ms Chantelle Place and a community supervision assessment report by Ms Jane Henshall.
Dr Sam Febbo
Dr Febbo has interviewed the respondent on a number of previous occasions. In respect of these proceedings he interviewed the respondent on 19 May 2014 and 16 June 2014 and produced a report dated 23 June 2014. At that time the respondent expressed distress, anger and frustration in relation to the supervision requirements. He appeared to Dr Febbo to have become fixated on the Sex Offender Management Squad (SOMS) officers. He was experiencing depressive symptoms and it appeared that he preferred being in custody to being released on a supervision order. This was a concern as, in Dr Febbo's view, it escalated the risk of reoffending if the respondent was released. At that point Dr Febbo's conclusion was that the respondent was unlikely to comply with the supervision order if released again.
Dr Febbo most recently interviewed the respondent on 7 November 2014. The respondent commenced the interview by making a general comment that he had to 'stop and listen' and 'take advice' from the SOMS. He told Dr Febbo that this would be difficult but that he had had 'a good think about it'. He told Dr Febbo that previous suspicions that he had regarding the police were wrong and he had come to this realisation after talking to Ms Place. He was asked about the contraventions and accepted that the conditions were important because they were put in place to stop him offending. He said that it was necessary for him to 'keep away from people that are drinking'.
The respondent told Dr Febbo that when he was in the community he was frustrated and that he felt that he was 'lost between worlds'. He felt comfortable in the 'prison world' and 'freedom' but when released on a supervision order he was 'in between'. He said that he found the order confusing because he was between two worlds. This led to frustration and resentment towards the order. The respondent reported some distress related to the fact that he felt significant pressure from other people who wished to live with him. He said that he had attempted to deal with this by 'walking away'.
Dr Febbo is of the view that the respondent's mental state is stable and that he has not reported any further depressive symptoms. The respondent reported feeling calm and that he was sleeping and eating well. He was not irritable when interviewed and had no manifestations of anxiety.
When asked about release the respondent appeared to Dr Febbo to be somewhat ambivalent. He took time to respond to a question as to whether he needed another 12 months in custody. He initially said that he could not say and that this was up to the courts, however he eventually said that he believed he was ready for release and that he would be able to function with the requirements of an order.
Dr Febbo queried with the respondent whether the answers given to him were consistent with those given to Ms Place. In particular, to Ms Place the respondent had appeared to minimise his breaches and to claim that he was treated unfairly and harshly. He had expressed negative views towards the police. The respondent made dismissive comments about the history he provided to Ms Place and suggested that he was joking. He maintained that the history he provided to Dr Febbo was correct and that this showed that the work he had done with Ms Place had been successful. Dr Febbo noted that in discussion with Ms Place she said that she believed the respondent was well aware as to what history he needed to provide in order to be released. She expressed concern about his capacity to translate information into practice.
Dr Febbo concluded that the respondent remains at high risk of further sexual offending if he is not the subject of a detention or supervision order. However, he was impressed with the history the respondent provided. Dr Febbo said:
He demonstrated considerable acceptance as to the need for a community order and the many requirements within such an order. He demonstrated an awareness to the reasons behind these requirements in addition to an awareness as to possible reasons why, in the past, Mr Corbett has demonstrated considerable resentment and anger in relation to, for example, his interaction with SOMS.
This history, however, is difficult to reconcile with the information that Mr Corbett provided to Ms Place over the course of six psychotherapeutic sessions. It appears that Mr Corbett is very much aware of the history and attitude he needs to express in the context of an assessment in order to proceed towards release but, following release, the concerns about breaching various requirements of the order remain.
The question now is whether it would be of benefit for Mr Corbett to remain in custody for a further 12 months and continue with psychotherapeutic input with Ms Place and whether this will effectively decrease his level of risk. In my opinion, it would be more appropriate for there to be further efforts at securing accommodation during which time Ms Place can continue working with Mr Corbett and then there to be reconsideration in relation to release at this point. A further 12 months in detention may well be counterproductive to Mr Corbett's release when he is next reviewed at the end of the 12 months.
Ms Chantelle Place
Ms Chantelle Place is a forensic psychologist with the forensic psychological services team of the Department of Corrective Services. Following the respondent's sentencing on 27 June 2014, he engaged in fortnightly therapeutic sessions with Ms Place. He attended eight psychological appointments in that time. Ms Place reports that he has presented as somewhat flat and frustrated in sessions, especially when discussing his recent breaches. The therapy sessions focused on addressing the breaches, alcohol use, negative attitudes towards the police and future risk management strategies.
The respondent's response to the psychotherapy sessions was not overwhelmingly positive. Ms Place reports that the respondent attempted to minimise the seriousness of his behaviour by claiming that as he had not sexually reoffended he should not have been breached. He also said that he should not have had so many conditions on his order because his sexual offending was not as serious as that of other individuals on similar orders. He also said that when breached on the earlier occasion there had been numerous breaches before he was arrested and he believed it was unfair that he had been arrested so quickly this time. He accepted, however, that he had knowingly breached the conditions and put himself in high risk situations. The respondent tended to externalise blame for the breaches and claimed that others had placed too much pressure on him to abide by the conditions. When challenged, however, he was able to take some responsibility for his own behaviour and admitted that he should have thought about the consequences before he acted.
The respondent told Ms Place that the main barrier to complying with his conditions was his negative attitude towards the police. This attitude appears to come from his antisocial personality as well as past negative experiences. Despite several sessions being dedicated to challenging these views, the respondent continued to express frustration about his interactions with the police, their lack of flexibility regarding the order conditions and the restrictions that the order placed him under. When asked how he planned to change his negative attitude in the future, the respondent said that he would simply 'act dumb' by not telling the police any information.
In regard to alcohol use, the respondent told Ms Place that whilst he had no desire to use alcohol, he found it difficult to walk away from social situations which involved people drinking alcohol. He also admitted to having thought about purchasing cannabis in order to help him relax. Ms Place notes that this self‑report indicates that the respondent continues to lack appropriate coping skills to deal with stress. The respondent said that he did not want to attend any group‑based substance abuse programme and preferred to address his treatment needs in individual counselling. He initially reported an intention to attend Alcoholics Anonymous meetings, which are held on a weekly basis in Casuarina Prison. However, despite encouragement to do so, he did not attend any such meetings.
Future risk management strategies were discussed with Ms Place. In her view, the respondent reported only concrete behavioural strategies which were somewhat unrealistic. For example, when asked how he would avoid associating with people who were drinking alcohol he stated that he would 'walk away' or 'stay home' all the time. He remained pessimistic about his ability to abide by the conditions of his order and stated that he would only be able to do so if he lived outside of Perth. Ms Place said that this demonstrated his tendency to adopt avoidant coping strategies rather than problem‑focused strategies.
In conclusion, Ms Place said:
In summary therapy sessions have focused on addressing Mr Corbett's recent breaches, alcohol use, negative attitude towards SOMS and future risk management strategies. Mr Corbett tended to minimise the seriousness of his recent breaches and externalised blame onto others rather than accepting responsibility for his own behaviour. He presented as resentful of his order conditions and interactions with SOMS which he perceives to be unfair and unwarranted. Mr Corbett was unable to generate risk management strategies beyond concrete behavioural strategies which were somewhat unrealistic. He also continued to demonstrate avoidant coping strategies by suggesting that he would only be able to abide by his order conditions if he lived outside of Perth. Mr Corbett's attitude remains pessimistic regarding his ability to abide by the conditions of his order.
Ms Jane Henshall
Ms Jane Henshall, a senior community corrections officer in the public protection unit of the Department of Corrective Services, provided a community supervision assessment. This assessment canvassed the availability of programmes, support services and accommodation in the community. The most problematic of these is accommodation. At the time of the report no suitable accommodation was available and there appears to be no realistic prospect of this changing in the short‑term. The accommodation that the respondent was residing in prior to his breach is no longer available and the agency which provided that accommodation has no suitable accommodation available at this time. No other agency, either government or non‑government, has any accommodation that would be available for use by the respondent.
Possible accommodation with either family or friends was canvassed with the respondent but he could not identify or provide details of any individual with whom he could reside. When questioned about a possible return to the Pilbara, the region from which the respondent originates, he advised that he was unable to return to reside in several towns in the region due to his past offending and potential contact with victims. Previous community supervision assessments of 27 July 2012 and 2 August 2012 indicate that placements at numerous remote communities in the region have been explored in the past but the respondent was denied residency.
In her oral evidence Ms Henshall said that arrangements whereby the Department of Housing was to provide a number of houses to two non‑governmental organisations for the purpose of housing persons released into the community on supervision orders had been 'put on hold'. The reasons for this and whether and when accommodation would again be available under this arrangement could not be provided. The apparent failure of this scheme has the practical effect of severely limiting accommodation options for the respondent and others like him.
Conclusions
The proper interpretation of s 23 of the DSO Act has been recently considered by the Court of Appeal in TJD v The State of Western Australia [2014] WASCA 10. It is unnecessary to repeat the conclusions of that decision, other than to note that the power in s 23 is based on an existing, standing, positive finding that a person is a serious danger to the community. Both s 23(1)(a) and s 23(1)(b) require satisfaction on the balance of probabilities that the person has contravened, is contravening or is likely to contravene a supervision order. Section 23(1)(b) has an additional condition; that there is an unacceptable risk that if an indefinite detention order was not made the person would commit a serious sexual offence. See TJD [47] ‑ [60] per McLure P (with whom Buss and Mazza JJA agreed).
It is not contested, and I am satisfied to the requisite standard, that the respondent has contravened the conditions of the amended supervision order. It is also clear that unless the respondent is placed in indefinite detention or on a supervision order, there is an unacceptable risk that he would commit a serious sexual offence. In determining whether the appropriate order is to amend the supervision order and again release the respondent or to order that he be indefinitely detained the paramount consideration is the need to ensure adequate protection of the community: s 23(2) of the DSO Act.
I note Dr Febbo's comment that detention of the respondent in prison for a further 12 months may be counterproductive. I understand this to mean that the respondent may be less suitable for release on a supervision order in 12 months than he is now. That may be so, but it cannot justify release on a supervision order unless that course would provide adequate protection to the community from the risk of further serious sexual offending.
The risk of further sexual offending can only be adequately obviated if there is a reasonable assurance that the respondent will comply with the terms of a supervision order. I cannot be satisfied that the respondent will be compliant. In my view, there is a significant possibility that if released he will again breach the conditions of a supervision order and that such breaches will involve behaviour that poses a significant risk of further serious sexual offending. I have come to that conclusion for the following reasons:
(1)the conditions that were breached were of an essential nature. The requirement to not consume alcohol and to avoid the presence of intoxicated females and to comply with the curfew were designed to limit the risk of further sexual offending. The respondent's past sexual offending involved these risk factors;
(2)if the respondent was to reoffend in a manner similar to his past offences an offence could involve use of threats and violence in order to commit acts of sexual penetration on women related to, or known to him. The nature of the risk is, therefore, serious;
(3)the respondent's failure to comply with the conditions was not an aberration. He has failed to comply with similar conditions in the past and his expressed intention to modify his behaviour has not proven to be reliable;
(4)the respondent's attitude to the previous supervision order and the police who enforce the terms of it is negative. Despite what he told Dr Febbo, his responses to Ms Place indicate frustration and resentment. This leads me to conclude that he is very unlikely to be well disposed to comply with orders.
In the circumstances there is a significant risk that if released on a supervision order with appropriate conditions the respondent would not be compliant and would breach the order, as he has done on previous occasions. If that occurred there would be a real risk of serious sexual reoffending. I am not satisfied that the community would be adequately protected if he was released on a supervision order. I am satisfied that there is an unacceptable risk the respondent would commit a serious sexual offence if an order for his indefinite detention is not made. Accordingly, I will order that the respondent be indefinitely detained in custody for control, care and treatment pursuant to s 23(1)(b) of the DSO Act.
In coming to that conclusion I have also had regard to the fact that there is no suitable accommodation available to the respondent in the community. Suitable accommodation is not simply about a place to reside; the location and nature of accommodation is relevant to the risk of reoffending.
An application was made at the hearing to adjourn the proceedings to allow further efforts to be made to find accommodation. I refused that application for two reasons. First, all reasonable options have been explored and there is no realistic possibility of accommodation becoming available in the foreseeable future. Second, the unavailability of accommodation is not critical to the conclusion that an indefinite detention order should now be made.
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