Director of Public Prosecutions (WA) v D
[2010] WASC 49
•9 MARCH 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- D [2010] WASC 49
CORAM: HASLUCK J
HEARD: 9 MARCH 2010
DELIVERED : 9 MARCH 2010
FILE NO/S: MCS 93 of 2009
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
D
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA)
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 8, s 14, s 17(1)
Result:
Finding that respondent is an unacceptable risk unless subject to a supervision order
Category: B
Representation:
Counsel:
Applicant: Ms J D Whitbread
Respondent: Mr D J McKenzie
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: David John McKenzie
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 176 A Crim R 110
Italiano v State of Western Australia [2009] WASCA 116
HASLUCK J:
The application
By an application dated 8 December 2009 the Director of Public Prosecutions for Western Australia applied for orders under s 14 and s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) in relation to the respondent, D, pursuant to s 8 of the Act.
The statutory provisions in question establish that if the court is satisfied at a preliminary hearing that there are reasonable grounds for believing that the court might find that the offender is a serious danger to the community, the court must fix a date for hearing of the application for a Div 2 order. If so satisfied, the court must order that the offender undergo examinations by two psychiatrists named by the court for the purposes of preparing the reports required under s 37 of the Act that are to be used on the hearing of the application.
The application was made at a time when the respondent was in custody as a result of the convictions I will describe in more detail shortly.
The application for preliminary orders was brought on for hearing before Justice Murray on 17 December 2009, prior to expiry of the respondent's current sentence. On that date Murray J made orders as follows:
1.The application for a Division 2 order pursuant to section 17(1) of the Dangerous Sexual Offenders Act 2006 to be heard on 9 & 10 March 2010 at 10.00 am.
2.[D] undergo examinations by 2 psychiatrists namely Dr Gosia Wojnarowska and Dr Bryan Tanney, for the purposes of preparing the reports as required by section 37 of the Dangerous Sexual Offenders Act 2006 that are to be used on the hearing of the Application for the Division 2 order.
3.The reports of the 2 psychiatrists be provided to the Court on or before 23 February 2010.
4.The two psychiatrists named in Order 2. (above) liaise with the Department of Corrective Services as to a management plan (if appropriate) for [D] to be supervised in the community.
5.Pursuant to s 122 of the Criminal Investigation Act 2006, the two psychiatrists may be supplied with and may view any audiovisual recordings of interviews with [D], or transcripts of the same, for the purpose of preparing their reports.
6.[D]'s current anticipated release date being 13 February 2010, [D] to be detained in custody until the application for a Division 2 Order is heard and determined.
7.There be liberty to the parties to apply generally.
The psychiatrists named in the preliminary orders provided the required reports, being (in chronological order) the report of Dr Gosia Wojnarowska dated 20 February 2010 and the report of Dr Bryan Tanney dated 22 February 2010.
Against this background the matter was listed for hearing on Tuesday, 9 March 2010. The reports just mentioned were included within a book of materials containing documents relevant to the matters in issue which were received in evidence including sentencing remarks bearing upon the respondent's court history. Importantly, the book of materials included also a Sex Offender Treatment Options Report dated 25 February 2010 signed by Dr Tarmala Caple ('the Caple report') and a Community Supervision Assessment Report dated 26 February 2010 prepared for the Chief Executive Officer of the Department of Corrective Services. I will call this latter document the 'assessment report'.
Before turning to the evidence and the matters raised at the hearing it will be useful to look at the statutory provisions and legal principles bearing upon an application of this kind.
Legal principles
Section 17(1) of the Act provides that if the court hearing an application finds that the offender is a serious danger to the community the court may order that the offender be detained in custody for an indefinite term for control, care, or treatment; or order that at all times during the period stated in the order, when the offender is not in custody, he be subject to conditions that the court considers appropriate and states in the order.
Section 7(1) of the Act requires that before finding that a person is a serious danger to the community the court must be satisfied that there is an unacceptable risk that, if not subject to a continuing detention order or supervision order, he would commit a serious sexual offence. The term 'serious sexual offence' has the same meaning as in the Evidence Act 1906 (WA) and encompasses offences of that description which carry a maximum penalty of 7 years' imprisonment or more.
In Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 176 A Crim R 110 Wheeler JA observed at [63] that 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.
In a later case Italiano v State of Western Australia [2009] WASCA 116 Pullin JA observed at [4] that a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact. In the same case, Buss JA observed at [46] that the word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard to, amongst other things, the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and 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), on the other, if an order is made.
It therefore appears that I must undertake a balancing exercise which has regard to the gravity of the risk and the serious consequences for the offender if an order is made.
Section 7(2) provides that the applicant has the onus of satisfying the court of all matters referred to in s 7(1) by acceptable and cogent evidence, and to a high degree of probability. It has been said that these words are incapable of further definition and import more than a finding on the balance of probabilities, but less than a finding of proof beyond reasonable doubt. The constituents of the risk and the factors that make the risk unacceptable must be identified. Consideration must then be given to whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence.
It is apparent from the statutory provisions that in deciding whether the respondent is a serious danger to the community the particular matters listed in s 7(3) must be considered. Those matters include the reports prepared by the court appointed psychiatrists which contain the assessments of risk required by s 37(2).
It appears from the reasoning in Williams that if the court does find that the respondent is a serious danger to the community, there is no discretion to refuse to make an order. In determining which of a continuing detention order or a supervision order is appropriate, the court should adopt the least restrictive alternative which is compatible with protection of the public.
As indicated in earlier discussion, the effect of s 17(2) of the Act is that in determining whether to make a continuing detention order or a supervision order the paramount consideration is the need to ensure the adequate protection of the community.
Let me now turn to the details of the respondent's sexual offending. These details are evidenced essentially by the various records and related documents forming part of the Exhibit 1 book of materials.
The respondent's court history
The respondent was born in 1948 and in his adult life was employed primarily as a plumber. He was convicted of some comparatively minor offences in the 1960s prior to the commencement of his sexual offending. The book of materials contains a copy of an indictment dated 3 February 1992 setting out charges relating to various sexual offences allegedly committed by the respondent.
On 28 February 1992 in the Supreme Court of Western Australia, in response to his guilty plea, the respondent was sentenced to a total of 10 years' imprisonment having been convicted of four offences of indecent assault, seven offences of aggravated indecent assault, ten offences of aggravated sexual assault, two offences of procuring a child to indecently deal and an offence of rape. These offences were said to have been committed between March 1985 and December 1990 against the respondent's biological daughters and step‑daughters.
I note in passing that some of these offences were apparently committed whilst the respondent was participating in a community based sex offender treatment programme between 1990 and September 1991. The acts giving rise to the charges included fellatio, digital penetration, cunnilingus, rubbing and dealing with a child's private parts and procuring a child to handle his penis. On 12 May 1996 the respondent was released to parole and departmental records indicate that he complied well with the relevant conditions, having attended supervision as directed and having actively engaged in treatment programmes to address his offending behaviour. He successfully completed parole on 11 May 1998.
A few years later the respondent was sentenced in the District Court on 23 October 2002 in respect of four convictions of indecent dealing of a child under 16, two convictions of sexual penetration of a child under 16 and a conviction for sexual relationship with a child under 16. These seven offences were committed against two female children aged 9 and 14 years. According to the sentencing remarks both victims were known to the respondent. He had befriended their parents with the result that the children had been permitted to be in his care on a regular basis.
The respondent was sentenced to a total of 14 years' imprisonment and was made eligible for parole. He appealed against this sentence and on 6 February 2003 the Court of Appeal reduced his sentence to 11 years.
On 13 February 2008, in response to the respondent's application for parole, the Prisoner's Review Board denied his release due to, first, high risk of offending, second, risk to the personal safety of the community due to history of sexual offending against children which is reflected in current offending, third, the serious and sexual nature of current offences and fourth, the Board considered that the risk of re‑offending was unacceptably high and could not be managed in the community in a way that would ensure community safety in respect of female children.
The materials before me establish that the respondent had three marriages and as at 2002 was in a form of de facto relationship. However, it appears that these various relationships were not sufficient to satisfy his sexual needs. The objects of his sexual offending behaviour has consistently been young, prepubescent and pubescent females known to him as family members or as the daughters of friends in emotionally close and familiar situations. The materials indicate that any further sexual re‑offending is likely to concern female persons with similar characteristics. The sexual offending behaviours have not incorporated actual physical violence. However, there were repeated, similar scenario events, involving low level grooming activity.
Dr Wojnarowska's report
Dr Wojnarowska's report contains a summary of the respondent's family history and forensic history and describes the cycle of offending. It was said that he currently presents as a mildly overweight man who looked his biological age and was polite and appropriate in his manner. The content of his speech reflected his above average cognitive abilities and good knowledge in relation to prevention strategies. His insight into his offending behaviour was good and he could quote all the important risk factors. He struggled somewhat with understanding why he became a child sex offender. His overall demeanour appeared to be sincere and he was able to accept both the diagnosis of sexual deviancy and the fact that his risk of re‑offending is perceived as high if not managed appropriately.
The author of the report summarised his future plans in this way. The respondent plans to live with his younger sister and her husband in their home. He plans to continue his long term relationship with his current female partner but has no plans for the couple to live together. His work plans include working as a plumber on a construction site where he would not have access to any families or children. He also expressed his willingness to adhere to any recommendations that would be made should he receive a community supervision order.
Dr Wojnarowska noted in her report that the risk of re‑offending was in the high category if he was not subject to a community supervision order. The respondent agreed to further treatment and had demonstrated that he benefited from a recently completed sex offender treatment programme. Various recommendations were made including that he attend the Pathways Programme which offers 50 sessions (100 hours) of CBT treatment for clients with a history of criminal conduct and alcohol and other drug use problems. The programme has three broad goals being, to prevent recidivism into criminal thinking and conduct, to prevent relapse into substance use and abuse and to live a meaningful and responsible life.
It was said that the respondent requires supervision in the community and that should include, apart from all the other precautions typically implemented for people with paedophilic interests, no access to female children whether supervised or unsupervised. His sister and her husband will require support and possibly further education on how to best detect the early signs of relapse and how to best assist the respondent.
Dr Tanney's report
Dr Tanney's report described the methodology used by the author of the report and described the instruments used to measure the risk of re‑offending. It was said at page 13 of the report that the results from three different structured enquiries to measure the likelihood of re‑offending risk were broadly complimentary. The STATIC‑99R actuarially predicts 'low moderate' likelihood of re‑offending. The RSVP suggests serious and lifelong personality and inter‑personal coping deficits (Cluster B) that have contributed to his offending but otherwise largely intact social and personal functioning with some grounds for optimism about his rehabilitation potential.
It was said further that the risk scenarios can be clearly identified. The respondent's sexual offending can be framed as a disorder of quality and that there is a consistently deviant choice of sexual object. The issue does not appear as one of 'too much libido'. There is little evidence for a general lack of social skills that would impede his reintegration into the community. He has enduring social roles, a supportive family, a close, supportive heterosexual relationship and realistic discharge plans to address his instrumental needs. This provides a strong base on which to practice new social and inter‑personal skills.
Dr Tanney's conclusions are set out at page 23 of the report. It is said that the respondent is a possible (3/5) or moderate risk of serious sexual re‑offending against young females, within the next five years or sooner should no further intervention have taken place. An idiosyncratic analysis of his offending pathway using general behavioural principles also concluded that there is some risk of serious sexual re‑offending. The pattern of risk factors merits guarded optimism about the effective management of dynamic risk factors.
It is said further that the respondent's self‑management plan is practical, feasible and realistic. Family and social supports will need to be aware of and willing to undertake monitoring responsibilities. The respondent has committed to the monitoring requirements and to the DCS programmes that will provide ongoing re‑enforcement of his individual plans and efforts to reduce the likelihood of further sexual offending. Risk management in the community will require monitoring and enforcement for a minimum of five years.
Other reports
The Caple or Treatment Options Report noted that the respondent had completed three sex offender treatment programmes being the Sexual Assault in Families (SAIF) Programme during 1990 and 1991, the Pre‑release Sex Offender Treatment Programme in 1995 and more recently, the Intensive Sex Offender Treatment Programme (ISOTP) in 2007. It is evident in reviewing the respondent's self‑management plan that he has a sound intellectual understanding of the factors that contribute to his sexual offending and what is required to manage these factors. The report notes that if the respondent was released under a supervision order he would be eligible to attend the Sex Offender Maintenance Programme. This operates in Perth once per fortnight. The rationale of the programme is to assist medium to high risk offenders who have completed a treatment programme to maintain treatment gains in the community.
It is said in this report that if the respondent were placed on a supervision order it is recommended that his consumption and pattern of alcohol use be regularly monitored by supervisory staff. If any signs of problematic use are identified he can be referred to an appropriate programme or counselling service. The Pathways programme provides a facility in that regard.
According to this report, any community release to a supervision order will require that the respondent's treatment gains are generalised and maintained. This will necessitate ongoing vigilance on his behalf to implement pre‑identified strategies, a willingness from his supports to educate themselves on the protective strategies they can implement, and ongoing risk management monitoring from police and supervising community youth justice personnel. It is also recommended that the respondent have no contact with children.
It is said further that if the respondent were to receive a continuing detention order he would be unlikely to receive any further sex offender treatment programmes as he completed the Intensive Sex Offender Treatment Programme in 2007. As it has been a few years since this programme completion, he could be afforded individual sessions with a DSO psychologist to review his self‑management plan and address any other issues identified in the formulation of his treatment needs that is conducted by this psychologist.
The assessment report notes that the respondent cited his sister and her husband (Mr and Mrs Z) as his main source of support. He also provided the names of his extended support network including his stated de‑facto partner. This report takes account of the comprehensive outline of his treatment needs and how they could be managed effectively in the community as indicated in the specialists' reports prepared by Dr Wojnarowska, Dr Tanney and Dr Tarmala Caple.
The author of the report concludes by saying that the respondent is assessed as a marginal candidate for a DSO supervision order. A number of concerns are then described including a concern about a potential lack of ability in the proposed support network to challenge the respondent on inappropriate actions within the home and community settings. However, it is said that if the court imposes a supervision order monitoring services would be involved in addressing compliance with any conditions imposed by the court.
It is against this background that counsel for the applicant has formulated proposed supervision order conditions that address the various issues and matters of concern covered by the reports mentioned earlier. I will return to these conditions in due course, being conditions that will be attached as an annexure to these reasons for decision and the orders to be made.
Conclusion
As I draw the various materials together I must begin by noting that counsel for the respondent has conceded on behalf of his client D that if the respondent is not subject to a supervision order he is a serious danger to the community. I note also that counsel on both sides have given careful consideration to proposed supervision order conditions and have reached agreement as to suitable conditions. The conditions in question are in the document signed by me and dated 9 March 2010 which will form part of the orders to be made. I will call this the 'specified order'.
In reviewing the evidentiary materials I note that the various reports mentioned in earlier discussion establish that in this case there is an entrenched pattern of sexual offending. However, it follows a pattern that makes the risk factors predicable as indicated in Dr Tanney's report. It seems that the risk factors can be minimised and even removed by rigorous conditions of the kind proposed.
It is also important to keep in mind that there have been two discrete phases of sexual offending by the respondent but it seems that the respondent has had the capacity to address his requirements and is willing to comply with orders of the kind proposed.
In summary, then, I have given careful consideration to the contentions of the parties and the evidentiary materials before me. Having regard to the pattern of offending and the other criteria and considerations referred to in the statutory provisions and decided cases, I am satisfied that there is an unacceptable risk that if the respondent were not subject to a supervisory order of the kind described in earlier discussion, which includes the standard conditions and additional conditions, there is an unacceptable risk that the respondent would commit a serious sexual offence. Having regard to the matters set out in s 7(3) of the Act and related provisions, I find that the respondent is a serious danger to the community.
However, in all the circumstances, having regard to the matters referred to in the reports and the observations I have made, I am of the view, and so find, that a supervision order in the terms of the specified order should be made as a means of ensuring adequate protection of the community.
I have heard from counsel for the parties as to the exact terms of the specified order and as to any further orders or directions that may be required concerning the respondent's release from custody in accordance with the specified order. The order to be made in order to complete the hearing and determination of this matter will be as follows:
1.The respondent is found to be a serious danger to the community.
2.As from 9 March 2010 and for a period of 5 years thereafter, the defendant is to be subject to a supervision order pursuant to s 17(1)(b) of the Dangerous Sexual Offenders Act 2006 on the conditions dated 9 March 2010 forming part of this order.
3.As to par 6 of the order made by Murray J on 17 December 2009 the hearing and determination of the application for a Div 2 order is deemed to take effect upon the respondent being returned to the place at which he is presently detained to the intent that he will within 24 hours be released from custody subject to the supervision order conditions referred to in par 2 above.
4.There is to be a suppression order as to the name of the respondent and the names of the complainants/victims in the subject offences to the intent that they will not be identified in any report of these proceedings.
SUPERVISION ORDER CONDITIONS
The respondent must:
Residence
1.Take up residence at [omitted] and reside continuously at that address or at a different address only if such different address is approved in advance by the Community Corrections Officer (CCO) assigned to him (which designated CCO may be changed by the Department of Corrective Services at any time);
2.Not leave or remain out of the State of Western Australia without the permission of the CCO and, if so permitted, abide by all conditions of such permission whilst absent from the state;
Reporting to the CCO and supervision by the CCO
3.Report to the CCO at [omitted], within 24 hours of release from custody under this order, and thereupon advise the CCO of his current name and address.
4.Be under the supervision of the CCO, and comply with the requirements of s 76 of the Sentence Administration Act 2003 as if he were an offender subject to that section;
5.Report to, and receive visits from, the CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of the Respondent;
6.Notify the CCO of any change of his name at least 2 days before the change is due to happen;
7.Not commence or change employment without the prior approval of the CCO;
Attendance at programs or treatment
8.Consult and engage with any Psychiatrist, Psychologist, mentor, support service and/or support person nominated by the CCO, as directed by the CCO;
9.Comply with the requirements of all programs designed to address his offending behaviour, as directed by the CCO;
10.Permit any psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to his level of risk of re‑offending and compliance with treatment to the Department of Corrective Services;
Reporting to WA Police
11.Report to the Officer‑in‑Charge of the Sex Offender Management Squad Headquarters at 250 Adelaide Terrace, Perth within 7 days upon release from custody, unless otherwise specified by the Court, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer‑in‑Charge of the Sex Offender Management Squad or his/her delegate;
12.Comply with all obligations imposed on him pursuant to the Community Protection (Offender Reporting) Act 2004;
13.If requested, permit Police Officers to enter and search his residence for the purpose of monitoring his compliance with his obligations under the Community Protection (Offender Reporting) Act 2004 and this order;
14.Advise police upon request of the names of all of his internet service providers, all mobile or landline telephone services used by him and all internet user names or identities used by him;
Disclosure/Exchange of Information
15.Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
16.Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including his offence history;
Restrictions on contact with Victims
17.Have no contact, directly or indirectly, with the following persons ('prohibited persons'):
(i)the victims of his sexual offending for which he was convicted in 1992;
(ii)[W];
(iii)[D];
(iv)the victims of his sexual offending for which he was convicted in 2002;
(v)immediate family members of the victims of his sexual offending for which he was convicted in 2002;
unless such contact is either conducted strictly in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Corrective Services, or conducted in a manner approved in advance by the CCO, such latter approval being not to be given except with the express consent of the prohibited person.
18.Unless contact is permitted pursuant to the previous condition, immediately physically withdraw from any situation or immediate location in which contact is made with a prohibited person (including being in the immediate presence of such a person, whether inadvertently or otherwise), without engaging with such victim in conversation or at all, whether by word or gesture, and must avert his gaze from such victim at all times;
19.Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;
Criminal conduct
20.Not commit any sexual offence, as defined in the Evidence Act 1906 s 36A;
21.Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;
22.Not to commit an offence under s 557K Criminal Code 1913 (WA);
23.Not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis;
24.Not to commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
Prevention of high‑risk situations
25.Not to associate with any person known by him to have committed a sexual offence, unless such association is authorised in advance by the CCO;
26.Have no contact with any child under the age of 17 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
(a)the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO; or
(b)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction and another adult is present.
27.Where any unsupervised contact with a child under the age of 17 years is initiated by the child, unless the contact is permitted under cl 26(b) above, withdraw immediately from the presence of the child;
28.Provide details of any contact with a child under the age of 17 years both to the CCO and to the Police on the next occasion you report to that person or agency;
29.Not form any domestic, romantic, sexual or otherwise intimate relationship with a person who has children under the age of 17 years in their care either full time or part time, unless approved by the CCO;
30.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 and police officer;
31.Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by the CCO or police officer.
0
2
1