Director of Public Prosecutions (WA) v Dal
[2015] WASC 210
•11 JUNE 2015
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- DAL [2015] WASC 210
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 210 | |
| Case No: | DSO:2/2015 | 28 MAY 2015 | |
| Coram: | MITCHELL J | 11/06/15 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Continuing detention order made | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) DAL |
Catchwords: | Criminal law Dangerous Sexual Offenders Act 2006 (WA) Application for div 2 orders Whether a serious danger to the community Whether a continuing detention or supervision order should be made Turns on own facts |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17 |
Case References: | DAL v The State of Western Australia [2006] WASCA 246; (2006) 33 WAR 143 Director of Public Prosecutions (WA) v Decke [2009] WASC 312 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 Director of Public Prosecutions (WA) v W [2014] WASC 257 The State of Western Australia v Latimer [2006] WASC 235 The State of Western Australia v West [2013] WASC 14 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
DAL
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for div 2 orders - Whether a serious danger to the community - Whether a continuing detention or supervision order should be made - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17
Result:
Continuing detention order made
Category: B
Representation:
Counsel:
Applicant : Mr M T Trowell QC
Respondent : Mr D J McKenzie
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : David McKenzie Legal Pty Ltd
Case(s) referred to in judgment(s):
DAL v The State of Western Australia [2006] WASCA 246; (2006) 33 WAR 143
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v W [2014] WASC 257
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v West [2013] WASC 14
Table of contents
Table of contents 3
Summary 4
Evidence 4
Facts 5
- Childhood 5
Marriage and children 6
First offence: May 1975 6
Offending against wife's cousins: late 1970s 7
Offending against LML: 1979 - 1986 7
Conviction of offences against LML: March 1987 7
First period of imprisonment: 1986 - 1989 8
Offending against RJL: 1989 - 1991 8
Offending against RGH: July 1990 9
Conviction of offences against RGH: October 1991 9
Second period of imprisonment: 1990 - 1993 10
Further offending against RJL: 1993 - 2000 10
Conviction of offences against RJL: November 2003 11
Third period of imprisonment: June 2003 to present 12
Application under the DSO Act 14
Psychiatric reports and evidence 14
- Dr Brett 14
Dr Hall 15
Serious danger to the community 18
- Section 7(3)(a): psychiatrists' reports 19
Section 7(3)(b): other assessments 20
Section 7(3)(c): propensity 20
Section 7(3)(d): pattern of offending behaviour 20
Section 7(3)(e): efforts by the respondent to address causes 21
Section 7(3)(f): positive effects of rehabilitation programs 21
Section 7(3)(g): antecedents and criminal record 22
Section 7(3)(h): risk of further serious sexual offences 22
Section 7(3)(i): community protection 22
Section 7(3)(j): other matters 22
Conclusion as to serious risk 22
- Propensity to reoffend 23
Proposed accommodation 24
Proposed risk management measures 26
Conclusion 27
- MITCHELL J:
Summary
1 The respondent is a 65-year-old man currently serving a term of imprisonment for a large number of serious sexual offences committed against his nephew. His earliest date of release for that term, which began on 20 June 2003, is 19 June 2015. That is also the date on which his release is currently required.
2 On 13 January 2015, the Director of Public Prosecutions (Director) applied under s 8 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) for orders under s 14 and s 17(1) of the DSO Act. On 12 February 2015, McKechnie J ordered that the respondent be detained in custody until the conclusion of the hearing and judgment on the application for a div 2 order, pursuant to s 14(2)(b) of the DSO Act. Psychiatric reports were ordered.
3 I heard the application for a div 2 order under s 17(1) of the DSO Act on 28 May 2015.
4 Having considered the evidence, I find that the respondent is a serious danger to the community. I am of the view that the risk of the respondent committing serious sexual offences in the future can only be reduced to acceptable levels by detaining him in custody for an indefinite term for control, care and management. I will therefore make the continuing detention order sought by the Director.
5 What follows are my reasons for those conclusions.
Evidence
6 The evidence in this case comprised three volumes of documents comprising material related to the respondent's past offending and antecedents, as well as copies of reports and management plans prepared for the purposes of this hearing. Two psychiatrists, Dr Brett and Dr Hall, supplemented their reports with oral evidence. I also heard oral evidence from two officers of the Department of Corrective Services, Ms Ballantyne and Ms Henshall, supplementing proposed management plans which they had prepared. I also received as an exhibit the past parole and work orders to which the respondent has been subject.
7 The respondent did not adduce or call any evidence.
8 There was little disagreement between the witnesses as to any matters of fact or expert opinion, and the primary facts did not appear to be in dispute. I make the following findings of fact based on that evidence. Where it is convenient to note a particular reference to a document appearing in the bundle of materials, which is exhibit 1 in the application, I have referred to relevant page numbers of exhibit 1 in brackets in these reasons.
Facts
Childhood
9 The respondent was born on 17 October 1949, the second of four children to his parents. The respondent's father deserted the family on 15 August 1949, at a time when the respondent's mother was pregnant with the respondent (809 - 810). The respondent's parents reconciled in February 1951 (845), but the family (then four children) was deserted again in January 1954 when the respondent was just over 4 years old.
10 In January 1954, the respondent was placed in the Government Receiving Home (863, 865). On 10 February 1954, he was placed in St Vincent's Foundling Home, operated by the Catholic Church in Subiaco (869, 883). By September 1957, when the respondent was 7 years old, he was living at Castledare Children's Home, also operated by the Catholic Church. It was noted that the church was not receiving payments for the respondent's accommodation from either parent, and that his mother did not visit (917).
11 On 7 March 1958, the respondent, then aged 8 years, was committed to the care of the Child Welfare Department until 18 years of age by order of the Children's Court, on the ground that he was a destitute child (928).
12 At about this time, the respondent's mother entered into a relationship with a de facto partner, with whom she had a number of children. There are a number of reports of her entering psychiatric institutions and living in difficult circumstances. She does not appear to have had any substantial contact with the respondent.
13 In January 1962, the respondent was placed in foster care with a Mrs H in Kalgoorlie (1017). By January 1963, the relationship between the respondent and his foster family had broken down, and Mrs H indicated that she could no longer care for him (1008). A psychologist's report at this time described the respondent's intelligence as 'borderline defective' and noted that '[e]motional deprivation and poor early environment have affected his intellectual development'. It was also noted that the respondent was an 'unhappy, isolated boy, who feels very insecure. He has intense longings for dependence and affection, but little real hope of realising them' (1007).
14 The respondent was placed in the Receiving Home at Perth on 8 January 1963, but was discharged back to the care of Mrs H on 30 January 1963 (1000 - 1001). By May 1963, Mrs H was again saying that the respondent was too much for her to manage (995). He was returned to the Receiving Home on 3 July 1963 (990).
15 In around August 1963, when the respondent was aged 13 years, he was fostered to a Mrs F in East Perth (980 - 982). At about that time, it was recommended that he be placed in a high school special class, which occurred. His intelligence, reading and arithmetic were noted to be well below average (979). He was still in that care in 1965, aged 15 years and working for Atlas Furniture (938 - 939, 1040).
16 In March 1966, when the respondent was aged 16 years, difficulties were reported in the relationship between the respondent and Mrs F (1055, 1059). In June 1966, the respondent was placed with a Mrs P in East Perth (1058, 1059). By September 1966, the respondent was still living at that location, and was working at a furniture firm in Maylands (1066). This appears to have been the situation when the respondent's wardship ended on 17 October 1967 (1072, 1078).
17 The respondent has consistently reported that, from the time when he was placed in institutions operated by the Christian Brothers, he was subjected to serious sustained sexual abuse, including by persons who were supposed to be caring for him. Sexual abuse is also reported to have occurred while the respondent was in foster care.
Marriage and children
18 The respondent married his wife on 20 November 1971, at age 22 years (26). The couple's first child, a girl to whom I shall refer as LML, was born in Perth in March 1973 (28). The couple also had two younger children, a boy and girl, in succeeding years. The respondent worked as a welder, having obtained a trade certificate through the Metropolitan Water Board (26).
First offence: May 1975
19 On 15 July 1975, the respondent was convicted by the Perth Children's Court of unlawful carnal knowledge of a girl under 13 years of age. The circumstances of the offence were that between 9.00 am and 10.00 am on 24 May 1975, the respondent, who was then aged 25 years, had sexual intercourse with his 12 year old sister-in-law at his home in Bassendean, while his wife was out. The offence report noted that the respondent had attempted to have sexual intercourse with the girl over the previous 18 months 'but had not pursued his attempts'.
20 The respondent was fined $200 for this offence.
Offending against wife's cousins: late 1970s
21 In his interview with Dr Hall for the purposes of assessment in 2015, the respondent admitted sexual abuse of two sisters, aged 11 years and 12 years at the time, who were cousins of his wife. The offending occurred while they were all visiting his wife's grandmother's home, which was a focal point for the extended family. The respondent has never been charged with those offences (762 - 763).
Offending against LML: 1979 - 1986
22 The respondent began sexually offending against his daughter, LML, when she was 6 years old (28, 37). At this time, the respondent would have been around 30 years of age. The offending began with the respondent touching LML's breasts and vagina, and had progressed to penile penetration by 1984 when LML was 10 years old (28 - 29). The respondent accepted in a police interview that he had 'fondled' his daughter many times over the years, but said that there was a break of about 12 months after LML informed his wife in August or September 1984 (42). He also admitted sexual penetration, or attempts to sexually penetrate, his daughter.
23 LML made a further disclosure of the respondent's offending to her mother in November 1986, by which time LML was 13 years of age and the respondent was 37 years old (32).
Conviction of offences against LML: March 1987
24 On 4 March 1987, the respondent was convicted on his plea of guilty of sexually penetrating LML between 1 June 1986 and 30 July 1986 (45 - 46). On 16 April 1987, the respondent was convicted on his plea of guilty of one count of incest between 1 January 1984 and 21 March 1984, and one count of attempted incest between 1 August 1984 and 30 September 1984 (60 - 61). On 16 April 1987, the respondent was sentenced by a judge of this court to a total effective sentence of 6 years' imprisonment in respect of these offences. He was directed to serve a minimum period of 2½ years before becoming eligible for parole (64). An appeal against this sentence was dismissed on 23 July 1987 (65 - 68).
First period of imprisonment: 1986 - 1989
25 The respondent was placed in custody as a remand prisoner on 20 November 1986, following the disclosure of the offences against his daughter. He was released on a work release order on 25 April 1989, and was granted parole from 17 July 1989 (14).
26 While in prison, the respondent was divorced by his wife.
27 In November 1988, a clinical psychologist, who had contact with the respondent since his placement on remand, wrote a report supporting the respondent's application for home leave. In the course of that report the psychologist observed (70 - 71):
In contrast with many sexual offenders who deny involvement and thereby never come to terms with their psychological problems, [the respondent] has been open and forthright with myself, despite strong feelings of shame and guilt. I consider him to be an exceptional individual with a good capacity to rehabilitate himself and also help others.
During the current sentence [the respondent] has coped with separation and divorce in a fairly positive manner, indicating some growth in independence. I believe that the risk of his re-offending whilst on leave of absence is non-existent, and should not be a barrier to his participating in the programme. In fact home leave can play a useful role in this man's rehabilitation, particularly if he is encouraged to re-establish community supports, as these will lessen his dependence on his children for his emotional well-being.
28 The psychologist's assessment of the respondent's 'non-existent' risk of reoffending was repeated in a report of 5 April 1989 supporting the respondent's community based work release (72).
29 The respondent's parole was subject to a number of conditions, including that the respondent was permitted visiting contact with children if desired by them, but only in the presence of a responsible adult approved by the children's mother and a community corrections officer.
Offending against RJL: 1989 - 1991
30 The psychologist's assessment that the risk of the respondent reoffending was 'non-existent' proved to be tragically inaccurate. The respondent was collected from prison by his brother at around this time and, because there was not enough room in the car, the respondent's nephew had to sit on the respondent's lap. At this time the nephew, to whom I will refer as RJL, was 7 years old, having been born in 1981 (169). The respondent rested his hand on RJL's groin under a jacket RJL had on his lap and began twitching his fingers (185 - 186).
31 After his release from prison, the respondent visited his brother regularly. Within a few weeks of his release he began rubbing RJL's penis under a doona cover, while other family members were in the room. The sexual abuse quickly progressed to masturbation, digital anal penetration and fellatio, and continued until the respondent's return to prison in October 1991.
Offending against RGH: July 1990
32 In mid-1990, the respondent was living by himself in Nollamara and coaching a local children's football team. He became friendly with the younger brother of one of the team members, RGH, who was 11 years old at the time. One week in the July school holidays, RGH stayed with the respondent at his house. On the last night of the stay, RGH fell asleep while watching television on the couch. He woke up to find the respondent touching his penis. RGH went back to sleep and woke again to find the respondent sucking his penis. The respondent took RGH to his bed, but RGH returned to the couch and started crying. The respondent told RGH not to tell anybody what had happened because he would go to gaol, and said that he had not done that to anyone before (76 - 80).
33 This offence was reported, and police interviewed the respondent on 3 December 1990, at which time he was working at an engineering company (96). The respondent was interviewed and admitted knowing RGH but denied the offence (97 - 102).
34 The respondent was charged and returned to custody as a remand prisoner, but was released on bail on 9 December 1990 (14).
Conviction of offences against RGH: October 1991
35 The respondent was convicted after trial of two counts of unlawfully and indecently dealing with a child under the age of 13 years on 30 October 1991 (74, 130). He was sentenced to a total effective sentence of 3 years' imprisonment by the District Court on 20 November 1991. The sentence was to be served cumulatively on any other term of imprisonment (as the offence occurred while the respondent was on parole for the sentence in respect of his daughter, he became liable to serve the balance of that sentence). The respondent was not declared to be eligible for parole (139).
36 The respondent's pre-sentence report at the time of this sentencing indicates that the respondent 'now states he accepts total responsibility for the offences. He claims he previously pleaded not guilty due to shame' (140). Counsel for the respondent referred to this passage without demur at the sentencing hearing (136). I note that the respondent has subsequently denied committing the offences against RGH (311).
37 The pre-sentence report also indicates that the offence against RGH was committed while the respondent was on parole subject to a condition that he not have unsupervised contact with children (141).
38 A psychological assessment attached to the pre-sentence report noted that the respondent manifested 'no serious levels of psychopathology' but was 'sexually fixated on both male and female children' and 'in need of extensive sex offender treatment'. The psychologist regarded the respondent to be at high risk of reoffending at that time (147 - 148).
Second period of imprisonment: 1990 - 1993
39 The respondent was returned to custody on his conviction of the offences against RGH on 30 October 1991. He remained in prison until released on a work release order on 22 June 1993. The respondent was granted parole from 19 November 1993 (14 - 15). The parole was subject to a number of conditions, including that he have no direct or indirect contact with victims.
40 The respondent undertook a sex offender treatment program while in custody in June 1992. He clearly made a favourable impression on those conducting the program. The coordinator of the program took the unusual step of providing the respondent with a very positive reference (151 - 152). Reports from those involved in the program in March and June 1993 supported work release, and indicated that the respondent was at low risk of reoffending (154 - 155). The respondent completed the program at Casuarina Prison in February/March 1993 (156).
Further offending against RJL: 1993 - 2000
41 Shortly after his release from prison on 22 June 1993, the respondent stayed with his brother for about six to eight weeks, sleeping in the games room. RJL was 11 years old at this time. Within weeks of arriving, the respondent arranged for RJL to come to the games room while the rest of the family was asleep, where they engaged in mutual masturbation and fellatio. Over following nights this progressed to anal sex. The sexual abuse continued regularly until January 2000 (194 - 215).
Conviction of offences against RJL: November 2003
42 RJL disclosed the various offences which the respondent had committed against him in December 2002 (216).
43 The respondent was returned to custody as a remand prisoner in respect of the offences against RJL on 20 June 2003 (15).
44 On 14 November 2003, the respondent was convicted, on his plea of guilty, of:
(a) five counts of unlawful and indecent dealing with a child under the age of 14 years;
(b) one count of aggravated sexual penetration without consent;
(c) 10 counts of indecent dealing with a child under the age of 13 years;
(d) 13 counts of sexual penetration of a child under the age of 13 years;
(e) one count of encouraging a child under the age of 13 years to engage in sexual behaviour;
(f) one count of indecent dealing with a child between the ages of 13 and 16 years;
(g) two counts of sexual penetration of a child between the ages of 13 and 16 years;
(h) one count of encouraging a child between the ages of 13 and 16 years to engage in sexual behaviour;
(i) two counts of indecent dealing with a juvenile male; and
(j) one count of sexually penetrating a juvenile male (164 - 168, 283 - 289).
45 These offences were committed at various times during the period between 1 July 1989 and January 2000 (283 - 289).
46 After a sentencing hearing at which extensive written and oral psychiatric evidence was given, a judge of the District Court sentenced the respondent to a total effective sentence of 12 years' imprisonment, backdated to 20 June 2003, with no eligibility for parole. In addition, after concluding that the respondent was likely to be a danger to children upon his release from custody, the judge ordered that the respondent be imprisoned indefinitely (551 - 573). This sentence was imposed on 16 March 2005.
47 The respondent appealed against the making of the order for indefinite imprisonment. The appeal succeeded on the ground that the sentencing judge failed to have regard to the fact that the respondent would be subject to the regulatory regime established by the Community Protection (Offender Reporting) Act 2004 (WA).1 The Court of Appeal also held that the sentencing judge erred by failing to make findings of fact as to whether the respondent was willing to undergo anti-androgen therapy and, if he was, as to whether that therapy would be likely to reduce the risk of re-offending.2
48 The Court of Appeal set aside the sentences imposed by the District Court and remitted the matter to the sentencing judge for the purpose of sentencing the respondent afresh.
49 The Court of Appeal also noted, in passing, the then recently enacted provisions of the DSO Act. It was noted that, if an order for indefinite imprisonment were not made, it would be open to the Director of Public Prosecutions or the Attorney General to make an application under the DSO Act for a continuing detention order in respect of the respondent.3
50 The respondent was re-sentenced in the District Court on 17 April 2007. The 12 year sentence, with no eligibility for parole, was reimposed. At that time, the State did not press for an order for indefinite imprisonment, and no such order was made (575 - 576).
Third period of imprisonment: June 2003 to present
51 The respondent has remained in custody since 20 June 2003. He is now 65 years old, and has been in prison for almost 12 years.
52 Between July 2009 and February 2010, the respondent undertook an intensive sex offender treatment program at Karnet Prison Farm. The treatment completion report again spoke of the respondent in positive terms, indicating that he met all the program objectives and appeared to make several treatment gains (584 - 591). The respondent has also undertaken a program referred to as 'Sycamore Tree' and received private psychological counselling while in prison.
53 I have been provided with records of applications by the respondent to see his 10-week-old grandson and 9-year-old and 11-year-old step-granddaughters. Refusal of these applications was recommended by psychologists on 11 September 2007 and 13 September 2010 respectively (578 - 583).
54 It appears that the respondent has been a well-behaved and cooperative prisoner during his time in custody.
Current relationship
55 A de facto relationship between the respondent and an adult woman, which commenced prior to his imprisonment, came to an end in approximately 2008 (781). The respondent describes Ms S, whom he has known as a friend for approximately 20 years, as his current partner. Ms S and the respondent have developed a more intimate relationship since the respondent requested to see her in 2008. The parties contemplate the prospect that the relationship may develop into a sexual relationship on the respondent's release from prison.
56 Ms S appears to have at least some degree of understanding of the respondent's past sexual offending. When first interviewed by a community corrections officer, Ms S appeared to be unaware of the full extent of the respondent's past sexual offending, and was unaware of the application for orders under the DSO Act. She later described being shocked when first advised of the respondent's possible status under the DSO Act, and unable to process the information provided and the questions asked. However, when spoken to by telephone on 5 May 2015, Ms S presented as more knowledgeable about the respondent's past offending and the application under the DSO Act. She remained willing to offer the respondent accommodation at her home in Geraldton, and indicated that she would be willing to undertake counselling or educational courses to develop her knowledge of sexual offending and how to identify high risk situations (790 - 791).
Application under the DSO Act
57 On 13 January 2015, the Director applied for orders under s 14 and s 17(1) of the DSO Act. On 12 February 2015, McKechnie J ordered that the respondent be detained in custody until the conclusion of the hearing and judgment on the application for a div 2 order, pursuant to s 14(2)(b) of the DSO Act. The application for a div 2 order under s 17(1) of the DSO Act was listed for hearing on 28 and 29 May 2015, and psychiatric reports were ordered.
Psychiatric reports and evidence
58 I have received and considered reports on the respondent prepared by two consultant psychiatrists, Dr Brett and Dr Hall, provided in accordance with s 37 of the DSO Act. Both psychiatrists express the view that the respondent poses a serious risk to the community if not subjected to a continuing detention order or supervision order under the DSO Act. Those opinions are based on a review of material disclosing the respondent's history, outlined above, interviews with the respondent and a process of structured professional judgment based on that material. Both psychiatrists also presented oral evidence before me.
Dr Brett
59 Dr Brett believes that the respondent has paedophilia, which gives him the propensity to commit serious sexual offences in the future. The respondent continues to have sexual fantasies about his victims. Dr Brett considers that the respondent's paedophilia has not been adequately addressed in past treatments, which focused on the sexual abuse suffered by the respondent as a child (which Dr Brett referred to as a 'more palatable' narrative for the respondent).
60 In Dr Brett's view, the required treatment is intensive psychological counselling, which will aim to increase the respondent's self-awareness and ability to identify and avoid high risk situations, and medication. The medication proposed is anti-depressant medication (selective serotonin reuptake inhibitors or SSRIs), which also have the effect of lowering libido and can reduce deviant sexual thinking. There was a need to titrate the medication to a level which would reduce the respondent's libido 'enough' to permit sexual activity with an adult partner but reduce the risk of activity with children. Dr Brett noted that titration can be difficult but can occur.
61 Dr Brett noted that the respondent has demonstrated a significant pattern of offending, and has offended despite apparently successfully completing an intensive sexual offenders program. He noted that past behaviour is the best predictor of future behaviour, and that on each occasion the respondent has previously been released from custody he has re-offended soon after, and has responded poorly to previous supervision and treatment. He recognises that the respondent's apparent treatment gains should be measured with great caution given his previous offending following positive reports. However, Dr Brett believes that if the respondent is released on a supervision order, his prognosis is better than it previously was, due to gains he has made in prison and the more stringent external controls which could be imposed.
62 Dr Brett expressed the view that the respondent's most likely risk scenario would be similar to his previous offending. The victim is likely to be a young boy or girl who the respondent has got to know through another relationship, which could be a partner, friend or community organisation. He is likely to groom the individual and commence offending by 'cuddling and fondling'. This could proceed to sexual penetration. This is more likely to occur if the respondent is having problems with his adult relationships, or if his mood is lower. Dr Brett did not consider the risk presented by this scenario to be imminent, and said that there would be warning signs of the risk increasing, such as access to children, withdrawal from medication, low mood and problems in his adult relationship. However, monitoring of these warning signs would substantially rely on disclosure by the respondent and possibly his partner.
63 Dr Brett expressed the view that, if adequate safeguards could be put in place, the respondent could be managed on a supervision order. In his report he expressed the view that more work would need to be done to achieve this. In oral evidence, Dr Brett said that he would be more confident if the respondent were released after his paedophilia had been more specifically addressed.
Dr Hall
64 Dr Hall also diagnosed the respondent with paedophilic disorder, and agreed that the disorder had not yet been appropriately addressed. When that was combined with the persistence of the respondent's offending over time and his lack of insight into the factors underlying his offending, proposed accommodation arrangements and other factors referred to in his report, Dr Hall considered that the respondent was at high risk of committing a serious sexual offence if not subject to either a continuing detention or supervision order.
65 Dr Hall was of the view that the respondent's paedophilia became the primary driver of his offending, and is associated with cognitive distortions around consent, mutual sexual interest and affirmation of his victims' 'specialness'. That driver has not been sufficiently acknowledged and addressed.
66 Dr Hall said that it was of particular concern that the respondent was able to make a markedly positive impression on the facilitators of his sex offender treatment programs, despite undisclosed ongoing deviant sexual fantasy and paedophilic thoughts, urges and behaviour. The fact that the respondent's paedophilia remains insufficiently addressed is, in large part, attributable to the respondent's past failure to disclose his ongoing sexual interest in children. Dr Hall noted he did not think that this was necessarily a deliberate deception, or the fault of anyone.
67 Dr Hall was of the view that the respondent demonstrated a lack of self-awareness in regard to his appreciation of underlying paedophilia and its role as a driver of his offending. He thought that this lack of insight impacts upon the respondent's ability to benefit from intervention, particularly psychological counselling. However, Dr Hall noted that one of the aims of psychological counselling was to increase insight. Dr Hall was of the view that the appellant has started to develop that insight, and is not a 'hopeless case' in terms of developing insight into his offending.
68 Dr Hall indicated that he would also be more comfortable about the respondent's release into the community if his paedophilia were addressed by a combination of psychological counselling and medication. In relation to medication, Dr Hall understood that the respondent had been on a low dose of SSRIs for three weeks, and it was unknown if he would be able to tolerate the medication at a dose sufficient to produce the therapeutic effect sought. He said that they were 'flying a little blind' in relation to the effectiveness of these interventions at the moment. Dr Hall said that paedophilia could not be cured, but that treatment can reduce the frequency and intensity of inappropriate sexual urges and fantasies and assist a person not to act on those urges in a way which is detrimental to others. If the respondent were to be released, intensive psychological counselling would be important.
69 Dr Hall had a similar view to Dr Brett in relation to the likely scenarios for future offending. He thought it unlikely that the respondent would change his pattern of offending.
70 Dr Hall noted, in cross-examination, that the respondent had not experienced the usual decline in libido that would be expected of a man his age.
71 Dr Hall was of the view that the respondent's relationship with Ms S would be a positive factor if he lived with her. He thought the situation in relation to the respondent's proposed accommodation in Geraldton had improved since his report, due to Ms S's increased understanding of the respondent's offending.
Statutory provisions
72 The objects of the DSO Act are to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community, and to provide for continuing control, care, or treatment, of persons of a particular class.4
73 The Act pursues these objects by providing for the Director to file an application for orders under the Act in relation to a person who is under sentence of imprisonment wholly or in part for a serious sexual offence.5 It is clear in the present case that the respondent is serving a term of imprisonment for serious sexual offences.6
74 The task of the court in dealing with an application for a div 2 order is set out in s 17 of the DSO Act, which provides:
(1) If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may:
(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.
(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
75 If the court makes an order under s 17(1)(b), referred to as a 'supervision order', the mandatory and discretionary conditions of supervision are provided for in s 18 of the DSO Act.
Serious danger to the community
76 I must first consider whether the respondent 'is a serious danger to the community'. Before I can make that finding I have to be satisfied that:7
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.
77 The Director has the onus of satisfying the court of this matter 'by acceptable and cogent evidence' and 'to a high degree of probability'.8
78 If I am satisfied that there is such an unacceptable risk, then the respondent will necessarily meet the statutory criteria of being a 'serious danger to the community'.9 For this purpose, an 'unacceptable risk' is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the respondent offending, the type of sexual offence which he is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, I am required to consider whether, having regard to the likelihood of the respondent offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that he has already been punished for the offences he has actually committed, it is necessary in the interests of the community to ensure that the respondent is subject to further control or detention.10
79 The ordinary rules of evidence apply in these proceedings, except as modified by s 42(4) of the DSO Act.11 Under s 42(4)(a), I may receive in evidence 'any document relevant to a person's antecedents or criminal record'. Under s 42(4)(b) I may receive in evidence:
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.
80 Section 7(3) of the DSO Act identifies a number of mandatory relevant considerations to which I must have regard in deciding whether to find that the respondent is a serious danger to the community. These are:
(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.
Section 7(3)(a): psychiatrists' reports
81 I have considered the reports of Dr Brett and Dr Hall, together with their oral evidence. I have summarised the principal aspects of their reports above. Both practitioners conclude that the respondent presents a serious risk of committing further serious sexual offences if not subject to a detention or supervision order.
Section 7(3)(b): other assessments
82 I have also considered the assessment reflected in the proposed management plan prepared by Sarah Ballantyne, a psychologist employed by the Department for Corrective Services, which is generally consistent with that of the psychiatrists.
83 I have also had regard to the various assessment reports which are contained in the three volumes of documents tendered at the hearing. However, I do not regard those assessments to be reliable, because they were based on the respondent's failure to disclose his continuing sexual offending (in the case of reports prior to June 2003) and continuing sexual fantasies and urges about children.
Section 7(3)(c): propensity
84 It is clear that the respondent has a high propensity to commit further serious sexual offences on his release from custody. The respondent's paedophilia is not currently managed, and he has limited insight into that driving force for his sexual offending. The respondent has a high libido for a man of 65, and continues to fantasise about sexual activity with children.
Section 7(3)(d): pattern of offending behaviour
85 The past pattern of the respondent's offending behaviour is to commit serious sexual offences against young children very shortly after his release from custody, having convinced those involved in attempts to rehabilitate him that he was at low risk of reoffending.
86 The respondent's previous initial approaches have targeted children of about the age of 6 - 7 years, with the respondent maintaining a sexual relationship with his victims into their teenage years where possible. The children have been both male and female. The respondent has victimised both members of his family and unrelated children. The sexual conduct has initially involved touching, and has progressed to oral and penetrative sex.
87 The respondent's sexual activity with children has continued over an extended period of time. Apart from the period January 2000 to June 2003, since 1979, either the respondent has been in custody or there is evidence of the respondent engaging in sexual activity with a child.
88 In the past, the respondent's approach has been to make contact with his victim through an adult relationship, and to manipulate both adults and children to be in a position to be able to sexually abuse the child.
Section 7(3)(e): efforts by the respondent to address causes
89 The respondent has been willing to engage in two intensive sex offender treatment programs and individual psychological counselling. He has also engaged in a program called 'Sycamore Tree', although there is limited information before me about the content of that program.
Section 7(3)(f): positive effects of rehabilitation programs
90 While the respondent has been willing to engage in programs established for the purpose of rehabilitating sex offenders, I am not satisfied that his engagement in those programs has resulted in any substantial positive effect on the respondent's propensity to engage in sexual activity.
91 The assessments of those facilitating programs in which the respondent has participated have not been reliable. A psychiatrist assessed the respondent's risk of reoffending to be 'non-existent' in 1989, but the respondent recommenced offending immediately on release. He was assessed to be at low risk of reoffending in 1993, but recommenced offending against his nephew very shortly after release. The completion report for the intensive program in 2010 spoke of the respondent in positive terms, but he continues to have paedophilic fantasies and urges not properly disclosed to the facilitators of that program.
92 I do not agree with the view expressed in evidence by Dr Hall that the deficits in the past treatment of paedophilia are not due to any deliberate deception or fault by the respondent. The respondent admitted to the facilitators of the 2010 program that in previous programs, he had provided the answers which he anticipated those facilitating the earlier program were looking for (586). He later admitted that the program was an exercise in telling the facilitators what they wanted to hear and that he 'fooled them' (780).
93 When he undertook the first intensive program he did not disclose his then ongoing abuse of his nephew, and in the second program he did not adequately disclose his ongoing paedophilic fantasies and urges.
Section 7(3)(g): antecedents and criminal record
94 The respondent's antecedents and criminal record are described above.
Section 7(3)(h): risk of further serious sexual offences
95 Having regard to the evidence to which I have referred, I am of the view that there is a high risk that, if released into the community without a continuing detention order or supervision order being made under the DSO Act, the respondent will commit further serious sexual offences against children.
Section 7(3)(i): community protection
96 The terrible damage which results from child sexual abuse is well established. The community should be protected from those consequences of the respondent's future offending.
Section 7(3)(j): other matters
97 It is also relevant to note that the respondent is a reportable offender who will have reporting obligations, and may potentially be subject to a protection order, made under the Community Protection (Offender Reporting) Act. This legislation will operate even if neither a continuing detention nor a supervision order is made under the DSO Act. However, in all the circumstances, I do not consider the reporting obligations under this legislation, and the potential for an application for a protection order to be made, to provide adequate protection to the community against the risk of the respondent's future offending.
Conclusion as to serious risk
98 Having regard to all of the above matters, I am satisfied to the requisite standard that there is an unacceptable risk that, if the respondent is not subject to a continuing detention order or a supervision order, he will commit serious sexual offences in the future. I therefore find that the respondent is a serious danger to the community for the purposes of s 17 of the DSO Act. The respondent's counsel accepted that this was the appropriate conclusion in all the circumstances.
Continuing detention order or supervision order
99 Having found that the respondent is a serious danger to the community, I must decide whether he should be detained pursuant to a continuing detention order or released into the community pursuant to a supervision order. The position advanced by counsel for the Director was that a continuing detention order should be made. Counsel for the respondent submitted that the risk presented by the respondent could be adequately managed by the conditions of a supervision order.
100 There was no disagreement between counsel for the Director and the respondent as to the appropriate conditions to be attached to any supervision order applied to the respondent. The conditions identified provided, in addition to the standard conditions, residence and reporting requirements, conditions for treatment, restrictions on contacting victims and children, disclosure and curfew requirements. The debate between counsel concerned whether these conditions could reduce the risk of the respondent committing serious sexual offences to an acceptable level so as to allow his release on a supervision order.
101 It is established that the paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a predisposition to making a continuing detention order. It cannot be simply assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order. The court should choose the order that is least invasive of the respondent's liberty while ensuring an adequate degree of protection of the community.12
102 In considering this question, I have considered the management plans prepared by Ms Ballantyne and Ms Jane Henshall, a senior community corrections officer. Both Ms Ballantyne and Ms Henshall gave oral evidence in relation to those plans. I have also considered the factors giving rise to the unacceptable risk that the respondent will commit serious sexual offences if not subject to a continuing detention order or a supervision order, described above.
103 Having considered the evidence, I am not satisfied that the risk to the community presented by the respondent can be reduced to an acceptable level by the conditions of a supervision order. That is so for a number of reasons.
Propensity to reoffend
104 In my view, the propensity of the respondent to sexually abuse children is very high. He is a diagnosed paedophile with little insight into the paedophilic tendencies which drive his offending. The respondent has a continuing sexual interest in children. He reports regularly masturbating while recalling events involving one of his victims, and continues sexual thoughts and fantasies in relation to children (764). He continues to have a relatively high libido, despite his age.
105 The evidence of both psychiatrists is that paedophilia is a condition which can be managed, but not cured, in the short term. It is managed by psychological counselling and medication applied with the goals of reducing the frequency and intensity of deviant fantasies and urges, and reducing the prospect that the paedophile will act on those urges. However, the respondent has not received significant treatment focusing on his paedophilia. The evidence is that his psychological counselling has not focused on this issue, and he is in the very early stages of being treated with medication. At this time, it is unknown whether the respondent will be able to tolerate SSRIs at a dose which may have the desired therapeutic effect, or what the therapeutic effect of the medication on the respondent will be.
106 The respondent's previous releases from custody have been followed by sexual offending against children within a very short period of time. The respondent's past manipulation of treatment program facilitators, and his failure to disclose relevant matters to those facilitators, means that I have no confidence that the respondent has made significant treatment gains as a result of those programs.
Proposed accommodation
107 I am also satisfied that the risks posed by the respondent to the community cannot be adequately managed at either of the two alternative places where it is proposed the respondent might live if released on a supervision order.
108 One of the proposed residences is a unit in a complex of units in Coolbellup, available through the Dangerous Sexual Offender Supported Accommodation Programme. However, the information available to the Department of Corrective Services indicates that there are families with children residing in the same complex of units or its immediate environs that may be at heightened risk due to domestic violence. The presence of children in, or very close, to the complex of units would present the respondent with the opportunity to form relationships with children in a manner which could not easily be monitored by means such as GPS. Although the unit has the advantage of being in the metropolitan area, so that intensive psychological counselling would be available, the respondent would have little other support at that location in terms of friends, partners or employment.
109 The other proposed residence is Ms S's house in Geraldton. This has a number of advantages. The respondent's relationship with Ms S, if successful, would be a protective factor against offending, and it may be that Ms S would be an alternative source of information for those involved in the supervision of the respondent and might alert them if risk factors arose. There is some prospect of appropriate employment in Geraldton.
110 However, I do not consider that a decision about release should place too much store in the protective effect of the respondent's relationship with Ms S. The relationship is untested, and whether it will succeed seems to me to be a matter of speculation. The respondent and Ms S have never had an intimate relationship outside prison, and it is difficult to predict how things would progress if they were to reside together. There will inevitably be a number of strains on the relationship in the initial stages, including those resulting from the respondent's adjustment to life in the community after a long period of incarceration and the medication which he is being administered. If the relationship does develop into a partnership, then it will place Ms S in a difficult position to expect her to disclose information to the authorities which may lead to the respondent's indefinite incarceration.
111 I am also limited in the assessment I can make of Ms S by the fact that she did not give evidence in the proceedings, or indeed attend the hearing of the matter. I have been given, by consent, second or third hand accounts of the attitude of Ms S conveyed to officers of the Department of Corrective Services. However, I find it difficult to make any reliable assessment of the degree of support offered by Ms S, the degree of her appreciation of the risks posed by the respondent and her capacity to deal with those risks without hearing directly from her.
112 Further, if the respondent resides in Geraldton he will not be able to access the intensive psychological counselling that could be provided by the Department of Corrective Services in the metropolitan area. The Department is not funded to provide that service in Geraldton. If the respondent were to reside in Geraldton, then some counselling could be provided, but in my view, the services which the respondent could receive would not be an adequate substitute for the intensive counselling, of up to a session a week, which could be provided in the metropolitan area. The limitations in counselling by video link were noted by the psychiatrists and Ms Ballantyne. Weekly travel to Perth, which the respondent has indicated he would be prepared to undertake, would regularly send the respondent outside the range of GPS monitoring. While some arrangements for counselling could be made if the respondent resided in Geraldton, in my view, this would not be an adequate substitute for intensive counselling in Perth.
Proposed risk management measures
113 Moreover, it seems to me to be highly undesirable to release the respondent before the measures designed to manage his paedophilic urges have been applied, and there has been some opportunity to reliably gauge their effect. As I have noted, the respondent has only recently begun to gain insight into his paedophilia and commence treatment with a low dose of SSRIs. It may be that a combination of intensive psychological counselling and medication will reduce the frequency and intensity of the respondent's paedophilic fantasies and urges, and provide him with the mechanisms to avoid acting on those fantasies and urges. However, the time for supervised release should be after those management measures have been applied for an adequate time, and some reliable assessment of their effect undertaken. Whether the respondent lives in Perth or Geraldton, it is far too risky to release him into the community while 'flying blind'.
114 In making that assessment, I do note that there are protective measures which could be put in place. The respondent could be subject to GPS monitoring, and restrictions as to his place of residence and employment while on a supervision order. His situation would be reviewed by a management team whose members would include a police representative from the Sex Offender Management Squad, the respondent's community corrections officer and a counsellor. Those officers would share information, including information provided by Ms S and the respondent's general practitioner. The respondent has indicated that he would consent to his doctor disclosing treatment information, or anything else that is required of him. However, ultimately much of the information on which the management team would rely would be derived from the respondent, who has a long history of failing to disclose matters relating to the risk he poses to the community.
115 If the respondent resumed his past mode of offending then he would develop a relationship with a child before moving to commit sexual offences against that child. The development of such a relationship would be a warning sign of increased risk of reoffending, as would the respondent ceasing medication, increasing sexual fantasies involving children or perceiving problems in his relationship with Ms S. However, those warning signs may not be detected if concealed by the respondent.
116 Dr Brett accepted, in cross-examination, the proposition that if all of the matters to which counsel had referred had been put in place the respondent could be successfully managed in the community. However, in my view not all the matters to which counsel had referred are in place. In particular the respondent has not established himself in a course of medication, and there are considerable impediments to the psychological treatment which Dr Brett identified as the first step for treatment of paedophilia. Dr Hall said that the respondent needed intensive treatment, supervision and monitoring if he was to be released into the community because of his under-treated paedophilia. He accepted that 'we're flying a little blind' in relation to the effectiveness of those interventions. Both Dr Brett and Dr Hall would feel more confident that the respondent could be successfully released into the community if his sexual deviance had been more adequately addressed.
Conclusion
117 Taking all of the above matters into account, I am of the view that the risk of the respondent committing further serious sexual offences against children cannot, at this time, be reduced to an acceptable level by conditions of a supervision order. In my view, the only way in which the community can be adequately protected from the current risk posed by the respondent is for him to be detained in custody.
118 I therefore order that the respondent be detained in custody for an indefinite term for control, care and treatment.
1DAL v The State of Western Australia [2006] WASCA 246; (2006) 33 WAR 143 [35] - [36].
2DAL [44].
3DAL [47] - [52].
4 Section 4 of the DSO Act.
5 Section 8 of the DSO Act.
6 See s 3 of the DSO Act (definition of 'serious sexual offence') read with s 106A of the Evidence Act 1906 (WA) and sch 7 to the latter Act.
7 Section 7(1) of the DSO Act.
8 Section 7(2) of the DSO Act.
9Director of Public Prosecutions (WA) v GTR[2008] WASCA 187; (2008) 38 WAR 307 [21].
10GTR [26], citing Director of Public Prosecutions (WA) v Williams [2007] WASCA 206;(2007) 35 WAR 297 [63].
11 Section 42(3) of the DSO Act.
12Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]; The State of Western Australia v Latimer [2006] WASC 235 [22] - [24], [49]; The State of Western Australia v West [2013] WASC 14 [52]; Director of Public Prosecutions (WA) v W [2014] WASC 257 [18].
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