Director of Public Prosecutions (WA) v Cummins
[2008] WASC 272
•10 NOVEMBER 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- C [2008] WASC 272
CORAM: McKECHNIE J
HEARD: 10 NOVEMBER 2008
DELIVERED : 10 NOVEMBER 2008
FILE NO/S: MCS 12 of 2008
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
C
Respondent
Catchwords:
Dangerous sexual offender - Whether detention or supervision - Antilibidinal medication - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Supervision order
Category: B
Representation:
Counsel:
Applicant: Mr D Dempster
Respondent: Mr P G Laskaris
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Legal Aid (WA)
Case(s) referred to in judgment(s):
Nil
McKECHNIE J: The Director of Public Prosecutions (WA) (DPP) applies for an order that the respondent is a serious danger to the community and that he be subject to a continuing detention order or a supervision order. The first issue is whether the respondent is a serious danger to the community under the Dangerous Sexual Offenders Act 2006 (WA) s 7. The respondent, through counsel, did not contend otherwise but I must be satisfied by acceptable and cogent evidence to a high degree of probability. I am so satisfied.
Both Drs Brett and Wojnarowska are each of the opinion, for reasons they have set out, that the respondent is a serious danger to the community and they have amplified that in their evidence today. The diagnosis of paedophilia reflects a pervasive pattern of inappropriate behaviour to pre‑pubescent children. Other reports compiled in connection with sentencing for previous offences support the general danger.
Outwardly the respondent has complied with a number of rehabilitation programmes and displayed an intellectual understanding of his condition and the triggers to it. But based on my reading of recent material, especially to evidence which displays interaction with women in Thailand who have young children, I agree with Dr Wojnarowska that there is an incongruity between the respondent's intellectual and emotional responses.
The respondent's offending history, including the self‑reporting of offences, indicates a propensity to commit serious sexual offences against children, contrary to the Criminal Code (WA), s 320. Offences under that section carry a maximum penalty above that specified in the Evidence Act 1906 (WA) sch 7, which is referred to in the Evidence Act s 106, which in turn is used as the definition in the Dangerous Sexual Offenders Act. Offences of possessing child pornography do not fall within the category and I make clear that I have considered the offending history only in relation to offences against s 320. I conclude there is a high risk in relation to those offences.
The respondent has a continued unhealthy interest in children, instanced by the Starnet phone calls to a convicted paedophile in prison, his grooming of Thai women for possible exploitation of children, his TV and DVD watching habits. Most of the DVDs seized from his house would be innocuous in other hands. In his hands they are likely to be triggers to inappropriate sexual behaviour.
As I have said, the respondent has apparently completed rehabilitation satisfactorily. However, appearances can be deceptive. The reasons given to Dr Brett about travelling to Thailand to pursue an interest in Buddhism are at odds with the grooming to which I have referred. The respondent's stated avoidance of risk by engaging with children is at odds with his description of 'shopping' within the intercepted Starnet calls. His stated avoidance of triggers is at odds with his possession of the DVDs featuring children, albeit in innocuous or innocent settings. In my judgment, unless some form of order is made, there is a high probability that the offender will commit a serious sexual offence.
Supervision or detention
I turn then to the type of order. The respondent's condition of paedophilia is chronic. Having regard to the therapeutic intervention over the years, it is unlikely to change significantly ever.
Triggers may be reduced, opportunities for interaction may be lessened, anti‑libidinal medication may have an effect, but nothing except decrepitude (and perhaps not even that) is likely to alter the entrenched paedophilia displayed by the respondent. That is not to make a moral judgment. It is a finding of fact. There is an immediate issue then in relation to detention for control, care or treatment. While the respondent would be controlled, care and treatment are unlikely to see an improvement. Unless the respondent is to be condemned to imprisonment forever on the basis of risk, not punishment, another way must be found provided it can be found consistent with the safety of the community.
In very responsible submissions this afternoon Mr Dempster has conceded that while, as is undoubtedly the case, a detention order is open on the evidence, having regard to the conflict in the psychiatric evidence and the other matter, a supervision order, properly crafted, will meet the needs of the community to be protected. What I propose will allow the parties some opportunity to craft a supervision order with conditions, and if there is argument about any of them we will have a brief hearing to resolve them.
The orders, however, should in general (and I speak only in general terms) contain a requirement that the respondent undergo anti‑libidinal treatment. I should make it very clear I do not consider the court has power, and if it has power, I do not consider that a court ought, to order a person to undergo treatment. The ingestion of any form of chemical into the human body is a matter for each person, subject to the risks, benefits, that are outlined, and I do not believe that the court should order a person take anti‑libidinal medicine.
However, consistently with my duty under the Dangerous Sexual Offenders Act for the protection of the community, I will only make a supervision order if there is a regime in place that the respondent take anti‑libidinal medicine because otherwise I would not feel satisfied that the safety of the community could be protected. The point may be subtle but it is nevertheless a very real issue of difference. I have mentioned the need for treatment simply because Mr Laskaris, who has very capably put the position of the respondent, has indicated that the respondent is prepared to undergo treatment or at least to investigate that medical option. The order should contain some form of condition that will enable treatment, if necessary, of anti‑libidinal drugs to occur and it should contain a fair degree of supervision as outlined, but I leave open the actual requirements until I hear the parties. I am drawn to the conditions generally as suggested by Ms Kerry Hodge, Senior Community Corrections Officer, bearing in mind of course that a person in the position of the respondent also has supervision and requirements under ANCOR and there need not necessarily be a duplication.
As to the interesting question of television viewing, and the like, that is a matter counsel can work out and I will rule if there is a dispute. I should say that in the end I have to be satisfied that the community is adequately protected. I cannot entirely protect the community and I should not make orders that are more prescriptive on the respondent's liberty than I actually consider are necessary. However, I will leave any final decision until I see the orders.
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