Director of Public Prosecutions (WA) v Dinah [No 10]
[2017] WASC 315
•10 NOVEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- DINAH [No 10] [2017] WASC 315
CORAM: ARCHER J
HEARD: 5 & 31 OCTOBER 2017
DELIVERED : 10 NOVEMBER 2017
FILE NO/S: MCS 2 of 2009
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Appellant
AND
MACKER JOSEPH DINAH
Respondent
Catchwords:
Dangerous sexual offender - Contravention of supervision order - Visits to private residences without approval and use of cannabis - Whether an indefinite detention order should be made
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7A, s 21, s 22, s 23
Result:
Supervision order rescinded
Continuing detention order made
Fine of $1,000
Category: B
Representation:
Counsel:
Appellant: Mr B D Meertens
Respondent: Mr D J McKenzie
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: David McKenzie Legal Pty Ltd
Case(s) referred to in judgment(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Director of Public Prosecutions (WA) v Dinah [2011] WASCSR 145
Director of Public Prosecutions (WA) v Dinah [No 2] [2010] WASC 112
Director of Public Prosecutions (WA) v Dinah [No 3] [2011] WASC 130
Director of Public Prosecutions (WA) v Dinah [No 4] [2011] WASC 278
Director of Public Prosecutions (WA) v Dinah [No 5] [2012] WASC 29
Director of Public Prosecutions (WA) v Dinah [No 6] [2013] WASC 403
Director of Public Prosecutions (WA) v Dinah [No 7] [2014] WASC 429
Director of Public Prosecutions (WA) v Dinah [No 8] [2016] WASC 2
Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Dinah [2009] WASC 123
The State of Western Australia v West [2013] WASC 14
TJD v The State of Western Australia [2014] WASCA 10
ARCHER J:
Introduction
On 30 June 2017, the respondent was released from custody under a supervision order made by Fiannaca J on 9 June 2017: Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158.
One week after his release, the respondent was charged with two contraventions of the supervision order. The respondent pleaded guilty to both contraventions. He contravened the supervision order by attending private residences without the prior approval from a community corrections officer (CCO) and by using cannabis.
By an application dated 13 July 2017, the State applied for an order under s 22 of the Dangerous Sexual Offenders Act 2006 (WA) (Act), alleging that the respondent had contravened conditions of a supervision order. The State sought an order, under s 23 of the Act, that the respondent be made the subject of either a continuing detention order or an amended supervision order. In its subsequent written submissions, the State sought only that the respondent be made the subject of a continuing detention order.
I am required to decide whether, in light of the contraventions and the evidence, there is an unacceptable risk that, if a continuing detention order were not made, the respondent would commit a serious sexual offence. In my view, there is such a risk.
Background
The history of this matter is set out in a series of previous decisions: The State of Western Australia v Dinah [2009] WASC 123; Director of Public Prosecutions (WA) v Dinah [No 2] [2010] WASC 112; Director of Public Prosecutions (WA) v Dinah [No 3] [2011] WASC 130; Director of Public Prosecutions (WA) v Dinah [No 4] [2011] WASC 278; Director of Public Prosecutions (WA) v Dinah [No 5] [2012] WASC 29; Director of Public Prosecutions (WA) v Dinah [2011] WASCSR 145; Director of Public Prosecutions (WA) v Dinah [No 6] [2013] WASC 403; Director of Public Prosecutions (WA) v Dinah [No 7] [2014] WASC 429; Director of Public Prosecutions (WA) v Dinah [No 8] [2016] WASC 2; and Director of Public Prosecutions v Dinah [No 9] [2017] WASC 158.
The respondent's history of offending and personal circumstances have been summarised numerous times. A detailed summary exists in the reasons of Jenkins J in Dinah [No 6] [4] ‑ [18]. A more recent summary is contained within the reasons of Fiannaca J in Dinah [No 9] [2017] WASC 158 [19] ‑ [36]. I adopt those summaries, noting the following.
The respondent is currently 56 years old. The respondent has a long history of sexual offending, including rape and aggravated sexual assault. He has served lengthy terms of imprisonment as a result.
In Dinah [No 9], Fiannaca J summarised the respondent's history of offending in this way:[1]
[T]he respondent offended against women who were known to him, a different woman on each occasion. On the first three occasions he went into the victim's bedroom where she was asleep, or at least lying on the bed. He was either living in the house or visiting. On the fourth occasion, the victim was his neighbour and he entered her house without consent. On the last occasion the victim was his cousin and she was in a vehicle with him after they had been out socialising. The first and last offences involved penile penetration of the woman's vagina without consent. The other offences involved digital penetration of the woman's vagina or fondling of her genitals without consent. On at least four of the occasions the respondent overcame resistance to his sexual attack, and the last three occasions involved physical assaults upon the victims either before the sexual attack or to overcome resistance. On each occasion the sexual offending ceased only when a third party entered the room or arrived home or on the scene. On the last occasion it was when police arrived.
[1] Dinah [No 9] [22].
The respondent was first found to be a serious danger to the community on 23 April 2009 by McKechnie J, who ordered that the respondent be detained under a continuing detention order: The State of Western Australia v Dinah [2009] WASC 123.
At the first annual review, McKechnie J declined to rescind that continuing detention order: Dinah [No 2].
On 9 May 2011, at the second annual review, Commissioner Sleight rescinded the continuing detention order, and made a supervision order: Dinah [No 3]. The supervision order was for five years and included 31 conditions.
Following his release, the respondent breached two conditions of that supervision order. Those conditions prohibited the respondent from using illicit substances and from consuming alcohol. The respondent was brought before the court to deal with those breaches on 28 September 2011. Commissioner Sleight ordered that the respondent be released on the same terms as the original supervision order, but amended the order so that the term of five years would recommence: Dinah [No 4].
Following his release on this occasion, the respondent again breached the supervision order. This time, the respondent's breaches consisted of failing to report to his supervising officer, lying about why he had failed to report, consuming alcohol, cutting off the bracelet that was monitoring his location, breaching his curfew, and failing to continuously reside at his address. On 25 January 2012, Commissioner Sleight rescinded the supervision order and ordered that the respondent be indefinitely detained under another continuing detention order: Dinah [No 5].
On the next three annual reviews, the court declined to rescind the continuing detention order: Dinah [No 6]; Dinah [No 7]; and Dinah [No 8].
The respondent's latest release
On 9 June 2017, Fiannaca J rescinded the continuing detention order and ordered that the respondent be released on a supervision order: Dinah [No 9].
It is the contraventions of this supervision order that are the subject of the present proceedings.
The supervision order was to operate for a period of seven years, from 30 June 2017. It contained 50 conditions.
In his reasons, Fiannaca J explored the respondent's risk scenarios:[2]
The respondent is likely to be intoxicated and the victim is likely to be an indigenous adult female known to him. He may misinterpret the victim's approach or his own needs may take priority over her wishes. Inadequacies in his social judgment and his impulsivity are relevant factors to such conduct. He has poor coping skills and, if things are not going his way, 'he can change rapidly' and act impulsively. Ms Rankin also agreed that his impulsivity continues to be 'one of the most potentially concerning aspects of [the respondent's] presentation'.
Having regard to the respondent's offending history, Dr Brett considers that physical violence is likely to be associated with any further sexual offending by the respondent.
Dr Brett is of the opinion that substance abuse would considerably increase the respondent's risk of reoffending and remains a significant risk factor that will require close monitoring. More specifically, there has been a significant relationship between alcohol intoxication and the respondent's sexual offending, so, in Dr Brett's opinion, it is an 'extremely important aspect of his management and his risk'. However, cannabis use can lead to impaired judgment and may also be associated with the use of alcohol, so it also has relevance as a risk factor. In the past, substance use has been a coping mechanism for the respondent when he has been under stress, and it is likely he would again resort to substances to cope with stress, and that could increase his impulsivity. Ms Place considers that the respondent still employs largely avoidant coping strategies for managing problems and negative emotions, essentially 'distraction and thinking positive thoughts'. It is to be expected that the respondent would come under stress on a supervision order, given the significant constraints on his freedom. Of course, on the two prior occasions he was released on a supervision order, he breached by using substances.
Alcohol and cannabis
[2] Dinah [No 9] [111] ‑ [113].
Fiannaca J said the use of alcohol and cannabis is a significant risk factor for the respondent.[3] He said it 'is clear that Dr Brett regards relapse by the respondent into substance use as the most significant warning that he is at risk of committing a serious sexual offence'.[4] However, on the evidence before him, Fiannaca J was able to have some confidence that the respondent would not use drugs in the community if he was released.[5]
[3] Dinah [No 9] [70].
[4] Dinah [No 9] [123].
[5] Dinah [No 9] [76], and see also [71] ‑ [75], [107], [136].
Fiannaca J noted that, under the conditions of the supervision order:[6]
The respondent will be required to undergo testing for drugs and alcohol, and will be required to provide a valid sample, so that any attempt to circumvent the process will be a breach of the supervision order. If requested, he must permit police to search his premises, which would provide a further means by which he can be monitored for the use of drugs or alcohol. Of course, knowing of the condition, if the respondent were to relapse, it would likely be away from his home, but other conditions, such as the prohibition against being in the presence of alcohol or any place where drugs are being used, or being in the presence of persons affected by alcohol or drugs, would result in a breach of the order if he were caught.
[6] Dinah [No 9] [145].
Further, Fiannaca J said that it 'would be expected, in light of the respondent's history, that he would be subject to random urinalysis testing on a regular basis, particularly early in the period of supervision, and there would be no tolerance for any breach'.[7]
Contact with women
[7] Dinah [No 9] [136].
Fiannaca J also noted the need to impose constraints on the respondent's contact with women. He said that, under the conditions of the supervision order:[8]
The CCO will … have considerable oversight of the respondent's association with women, including the attendance by women at his place of residence, and the attendance by him at their place of residence. In fact, he will be prohibited from attending the private residence of another person without approval in advance from his CCO. Such a restriction is necessary at this stage because some of his offending in the past occurred in homes where the victims lived with third parties. The respondent will also be required to make full disclosure of his past offending and the supervision order to anyone with whom he commences a friendship or a domestic, romantic, sexual or otherwise intimate relationship, and the disclosure must be able to be confirmed by a CCO or a police officer. Such measures will go some way to mitigate the risk created by the fact that vulnerable women may live in the residential complex or nearby.
Supervision order made
[8] Dinah [No 9] [144].
In rescinding the continuing detention order and making the supervision order, Fiannaca J said 'the consensus in the psychiatric and psychological evidence was that the respondent had made progress and that, under strict conditions and tight controls, his risk of committing a serious sexual offence could be managed in the community'.[9]
[9] Dinah [No 9] [156].
Fiannaca J further said:[10]
The conditions of the supervision order are formulated so as to enable early detection of behaviour that may be regarded as a precursor to serious sexual offending, especially the use by the respondent of alcohol or illicit substances. This allows for intervention at that stage to prevent the risk of such offending being realised. It is to be expected that if he were to breach any of the conditions, the respondent would be dealt with swiftly (as Dr Brett has suggested) and he would be brought before the court on contravention proceedings so that the court can decide, if satisfied there has been a contravention, whether the adequate protection of the community requires the making of a continuing detention order.
[10] Dinah [No 9] [160].
The present contraventions
The respondent was released under the supervision order on 30 June 2017. It was only days later, on 6 July 2017, that the respondent contravened it. In breach of condition 39, he attended private residences without the prior approval of his CCO. In breach of condition 28, he used cannabis.
As envisaged by Fiannaca J, the respondent was dealt with swiftly. He was charged with the first breach on 7 July 2017. The same day, he was subjected to a urinalysis. On 12 July 2017, the results of that urinalysis became available. The respondent tested positive for cannabis with a concentration of 183ug/L.[11] The next day, 13 July 2017, the respondent was charged with the second breach, and was refused bail.
[11] Exhibit A, Laboratory Report dated 12 July 2017, page 26.
The respondent pleaded guilty to the first breach in the Magistrates Court on 8 July 2017 and was fined $1,000.
On 17 July 2017, the respondent was brought before this court on the first mention of the State's application under s 22 of the Act. On that date, he pleaded guilty to the second breach. I ordered that the respondent be detained in custody until the conclusion of the contravention proceedings.
The hearing of the contravention proceedings took place on 5 and 30 October 2017. On the second date, I also heard submissions in relation to the appropriate penalty for the second breach. I will discuss the appropriate penalty for that breach after dealing with the State's application under s 22.
Relevant law in contravention proceedings
Under s 21 of the Act, a member of the police force or a CCO who reasonably suspects a person is likely to contravene, is contravening, or has contravened, their supervision order may apply to a magistrate to have a summons or warrant issued against the person. A summons or warrant issued under s 21 requires the person to appear or be brought before the Supreme Court for it to consider the suspected or anticipated contravention.
If a person appears or is brought before the Supreme Court pursuant to s 21, the DPP may apply to the court for an order under s 23, and may do so in the name of the State.[12]
[12] Section 7A of the Act.
Section 23 of the Act states:
23.Court may make order
(1)If the court is satisfied, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order, the court may -
(a)make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the conditions of the supervision order, or both; or
(b)if the court is also satisfied that there is an unacceptable risk that, if an order under this paragraph were not made, the person would commit a serious sexual offence, make a continuing detention order in relation to the person; or
(c)make no order.
(2A)In considering whether it is satisfied as required in subsection (1)(b), the court must disregard the possibility that the person might temporarily be prevented from committing a serious sexual offence by imprisonment, by remand in custody or by the imposition of bail conditions.
(2)In deciding whether to make an order under subsection (1), the paramount consideration is to be the need to ensure adequate protection of the community.
It was not in dispute that the respondent contravened the supervision order as he pleaded guilty to both charges. Therefore, the question for me is whether I should make orders under s 23(1)(a) or (b) or make no order under s 23(1)(c).
In deciding whether to make an order under s 23, the paramount consideration is the need to ensure adequate protection of the community.[13]
[13] Section 23(2) of the Act.
Further, I am required to make my decision on the basis that the respondent is a serious danger to the community. This is because the power in s 23 of the Act is based on an existing, standing, positive finding that a person is a serious danger to the community. In dealing with an application under s 22, there is no power to review the prior finding that the respondent is a serious danger to the community.[14] Having said that, even if there was such a power, I would find that the respondent is a serious danger to the community. Indeed, this was conceded, appropriately with respect, by counsel for the respondent, Mr McKenzie.
[14] TJD v The State of Western Australia [2014] WASCA 10 [47].
If I am satisfied there is an unacceptable risk that, if I do not make a continuing detention order, the respondent would commit a serious sexual offence, I must make a continuing detention order.[15]
[15] Section 23(2)(b) and TJD v The State of Western Australia [51], [57].
This is a subjective test, requiring only that the court be satisfied on reasonable grounds that there is a relevant unacceptable risk.[16]
[16] TJD v The State of Western Australia [49].
The standard of proof is the civil standard of proof on the balance of probabilities applying Briginshaw v Briginshaw (1938) 60 CLR 336, 362.[17]
[17] TJD v The State of Western Australia [58].
In a passage frequently cited in this court, Corboy J said:[18]
The term 'unacceptable risk' is not defined in the DSO Act. However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made.
[18] The State of Western Australia v West [2013] WASC 14 [52], citing Italiano v The State of Western Australia [2009] WASCA 116 [4] (Pullin JA) and [46] (Buss JA).
Evidence
The State tendered, by consent, a book of materials which included a report from psychiatrist Dr Wynn Owen, a treatment progress report by senior forensic psychologist Ms Korda, and a performance report by Ms Minnock of the Department of Corrective Services.[19] Those three witnesses gave oral evidence in chief and were cross‑examined.
[19] Exhibit A.
The respondent elected not to give or adduce any evidence.
Interviews soon after the contraventions
On 10 July 2017, a few days after the contraventions, but before the results of the urinalysis had been obtained, the respondent reported to a Senior Community Corrections Officer (SCCO).[20] When the SCCO raised the respondent's attendance at residential addresses, in breach of his supervision order, the respondent said he had been 'sitting at home grieving' his 'cousin brother's' passing, and decided he needed to be with his family.[21] Consequently, the respondent visited two private residences occupied by his family. He admitted that he did so without prior approval from Community Corrections. The respondent told the SCCO that he 'now knew' he could not go to 'people's houses' and that he would now meet his family at shopping centres instead.[22]
[20] Exhibit A, CBIS File Note of 10 July 2017, page 22.
[21] Exhibit A, CBIS File Note of 10 July 2017, page 23.
[22] Exhibit A, CBIS File Note of 10 July 2017, page 23.
The SCCO pointed out to the respondent that the condition of his supervision order to seek prior approval before visiting private residences was reinforced to him on numerous occasions, along with the consequences of non‑compliance. The respondent then acknowledged that he was aware of the condition but said he had not considered the consequences of his behaviours. The respondent stated that he now fully understood the consequences of non‑compliance.[23]
[23] Exhibit A, CBIS File Note of 10 July 2017, page 23.
The SCCO also reported:[24]
He [the respondent] stated that there had been no alcohol use at either house, and initially stated no drug use [when he visited without approval]. However he later stated that his sisters Roslyn and Anita had been smoking cannabis when he attended and he had gone straight to the kitchen to make a cup of tea and then had gone out the back. He denied using any illicit substances or consuming alcohol.
[24] Exhibit A, CBIS File Note of 10 July 2017, page 23.
It can be seen from this that the respondent lied to the SCCO about his use of cannabis. Further, he lied even though he knew he had been required to provide a urine sample the day after he had used the cannabis.
A few days later, on 13 July 2017, the respondent participated in a police record of interview. The police told the respondent that they received the results of his urinalysis the afternoon before and that this was why they arrested him that morning.[25] The respondent then admitted that he consumed the cannabis while visiting his family during the first contravention.[26]
[25] Exhibit A, Transcript of Electronic Record of Interview conducted on 13 July 2017, page 42.
[26] Exhibit A, Transcript of Electronic Record of Interview conducted on 13 July 2017, pages 42 ‑ 48.
The police asked the respondent whether he knew he should not smoke cannabis. He said 'I was so remorseful that I didn't stop and think … I was grieving. … Grieving and happiness to see my two younger sisters'. The respondent admitted he knew that a condition of the supervision order prevented him from using cannabis, and correctly identified it as condition 28.[27]
[27] Exhibit A, Transcript of Electronic Record of Interview conducted on 13 July 2017, pages 45 ‑ 46.
When the police asked the respondent why he used cannabis when he visited his family, the respondent replied:[28]
Well, because my sisters were smokin' and, you know, I didn't really want to have a cone because, you know, my obligations … But, unfortunately, being in the company of my sisters, you know, I didn't feel like, you know, being pushed aside. And my sisters saying 'oh, yeah, have a cone' and all that, you know, I didn't feel like, I didn't want those allegations put on me to start [an] argument. I just was grieving and they was grieving so we just tried to put all our emotions together and just, just relax and, in a good way.
[28] Exhibit A, Transcript of Electronic Record of Interview conducted on 13 July 2017, page 48.
The respondent then told police 'I wasn't allowed to smoke marijuana and I'm so remorseful of my wrongfulness that I did'.[29]
Performance report of Ms Minnock
[29] Exhibit A, Transcript of Electronic Record of Interview conducted on 13 July 2017, page 48.
For this hearing, Ms Minnock, a SCCO, provided a report covering events since the respondent's release on the supervision order on 30 June 2017 (Performance Report).[30]
Sessions with a SCCO
[30] Exhibit A, Performance Report dated 27 September 2017.
A few days after his release, on 3 July 2017, the respondent attended a community corrections centre for supervision in accordance with a direction to do so.[31] During that attendance, the respondent advised his supervising SCCO that his brother had passed away on 30 June 2017, but that he was coping.[32] The respondent also stated that his brother's passing was not a 'high risk situation' for him. The respondent told his SCCO he had plans to meet with his sons and his former partner over the coming week, and requested that the suitability of his attendance at their homes be assessed.[33]
[31] Exhibit A, Performance Report dated 27 September 2017, page 156.
[32] Exhibit A, Performance Report dated 27 September 2017, page 156.
[33] Exhibit A, Performance Report dated 27 September 2017, page 156.
On completion of the 3 July 2017 session with his SCCO, the respondent was issued with a further direction to report on 10 July 2017.[34]
[34] Exhibit A, Performance Report dated 27 September 2017, page 156.
However, on 6 July 2017, before the next appointment, the Global Positioning System (GPS) alerted the authorities to the respondent's first contravention.[35] A SCCO telephoned the respondent to question him about it. The respondent admitted to attending the private residences, saying that they were his sister's properties.[36] The SCCO then reminded the respondent of condition 39 of his supervision order, which prohibits such attendances.[37] The respondent confirmed that he was aware of that condition, but said he attended the residences due to his grief over his brother's passing and wanting to spend time with his family.[38]
[35] Exhibit A, Performance Report dated 27 September 2017, page 156.
[36] Exhibit A, Performance Report dated 27 September 2017, page 156.
[37] Exhibit A, Performance Report dated 27 September 2017, page 156.
[38] Exhibit A, Performance Report dated 27 September 2017, page 156.
On 10 July 2017, the respondent attended the community corrections centre as earlier directed.[39] As noted above, the respondent disclosed that, at one of the residences he visited without approval, some of the residents were smoking cannabis while he was there, but he lied about his own use.[40]
[39] Exhibit A, Performance Report dated 27 September 2017, page 156.
[40] Exhibit A, Performance Report dated 27 September 2017, page 156.
As to the sessions in general, the Performance Report notes that the respondent was polite to the SCCO.[41] However, the respondent 'reflected his belief' that the conditions of the supervision order were unnecessarily strict and indicated he intended to request that the court reduce them.[42]
[41] Exhibit A, Performance Report dated 27 September 2017, page 156.
[42] Exhibit A, Performance Report dated 27 September 2017, page 156.
The Performance Report also states that, since his arrest for the present contraventions, the respondent has continued to minimise the severity of his actions, referring to his cannabis use on 6 July 2017 as 'only one cone'.[43]
Available suitable accommodation
[43] Exhibit A, Performance Report dated 27 September 2017, page 157.
Before I could amend the supervision order, or make no order, I would need to consider whether there is suitable accommodation available to the respondent in the community.
Outcare is the only viable source of accommodation for the respondent.[44]
[44] Exhibit A, Performance Report dated 27 September 2017, page 157.
The Performance Report notes that, while Outcare previously provided accommodation under the DSO Supported Accommodation Program, Outcare advised they would be terminating the respondent's lease after he was remanded in custody again for the present contraventions.[45] At the time of the completion of the Performance Report, Outcare advised that they did not have any properties currently available to offer the respondent.[46]
[45] Exhibit A, Performance Report dated 27 September 2017, page 157.
[46] Exhibit A, Performance Report dated 27 September 2017, page 157.
However, on 30 October 2017, the Department of Corrective Services advised that Outcare did have a property that could be made available to the respondent in the near future.[47] The Department had not had the time to assess the suitability of the property. If the lack of accommodation had been the only obstacle to making a supervision order or no order under s 23, it would have been necessary to postpone making a decision until the Department had assessed the property. However, it is not the only obstacle. As will be seen, I have concluded that, irrespective of whether there is suitable accommodation available, I must make a continuing detention order.
Managing risk in the community
[47] Email from Mr Meertens to my associate dated 30 October 2017.
The Performance Report identified several aspects of the reasons of Fiannaca J that were relevant to the respondent's contraventions.
The Performance Report noted that the respondent's risk scenario includes him being intoxicated and the victim being an indigenous adult female known to him.[48] It noted the need for a CCO to have oversight over the respondent's contact with women, including restricting his attendance at private residences.[49] This is due to the respondent's history of offending in the homes of his victims.[50]
[48] Exhibit A, Performance Report dated 27 September 2017, page 157.
[49] Exhibit A, Performance Report dated 27 September 2017, pages 157 ‑ 158; Dinah [No 9] [144].
[50] Exhibit A, Performance Report dated 27 September 2017, pages 157 ‑ 158; Dinah [No 9] [144].
The Performance Report also noted that substance use considerably increased the respondent's risk of re‑offending and that Dr Brett regarded a relapse into substance abuse as 'the most significant warning that he is at risk of committing a serious sexual offence'.[51]
[51] Exhibit A, Performance Report dated 27 September 2017, page 158.
The Performance Report stated that, in light of the above matters, it is of significant concern that the respondent breached two conditions that were imposed to reduce his risk of re‑offending, and that he breached the conditions so soon after his release.[52]
[52] Exhibit A, Performance Report dated 27 September 2017, page 158.
The Performance Report acknowledged that the respondent had reported that he was suffering from grief and loss issues as a result of the death of his brother on numerous occasions prior to the breaches. However, it stated that the respondent was offered support and guidance, which he said he did not need, and he said he was coping well.[53]
[53] Exhibit A, Performance Report dated 27 September 2017, page 158.
The Performance Report also noted that, since his release into the community, the respondent 'continually referred to his Order conditions as being unreasonably strict, and referred to his intent to return to Court to have the conditions lessened'. This provided an additional reason to be concerned about the respondent's ability to comply with the conditions.[54]
Oral evidence of Ms Minnock
[54] Exhibit A, Performance Report dated 27 September 2017, page 158.
In her oral evidence, Ms Minnock said the respondent knew the process which needed to be followed before she would give him permission to attend a private residence. She said that, on 3 July 2017, the respondent had asked for permission to attend the home of his sons and ex‑partner, and he had foreshadowed asking at some point in the future for permission to attend his sisters' homes. She explained to him the process that was required, and that it would take some time, but that it could be expedited if necessary. She said the respondent had never asked for permission to attend his sisters' homes.[55]
[55] ts 748 ‑ 751.
On the day of the breaches, Ms Minnock was not at work, but had told the respondent that he could always speak to another CCO or contact the Electronic Monitoring Office if she was not available. There is no record of the respondent attempting to contact her or anyone else on the day of the breaches.[56]
[56] ts 750.
Ms Minnock said she did not think that there were any new conditions or amendments that could be made that would assist in managing the respondent. She agreed with Dr Wynn Owen's view that the breaches were very specific breaches of specific conditions and that it would be difficult to further clarify them to stop the respondent attending unauthorised addresses or using illicit substances.[57]
[57] ts 755.
Ms Minnock confirmed that the respondent's attendances at the private residences were detected by the monitors of the GPS tracking devices.[58] She explained that they did not monitor the movements of dangerous sexual offenders in real time, but did regularly review them, and usually within 24 hours.[59] She said that the departmental resources would not permit real time monitoring of the movements of dangerous sexual offenders.[60] In relation to the respondent, she had told the monitors to specifically check for attendances at private homes, as she was aware this was relevant to his likely risk scenario.[61]
Psychological Treatment Progress Report of Ms Korda
Treatment history
[58] ts 751.
[59] ts 760 ‑ 761.
[60] ts 761.
[61] ts 760.
The updated treatment progress report of Ms Korda was dated 21 September 2017 (Treatment Progress Report).
Since 9 June 2017, when Fiannaca J rescinded the detention order and ordered that the respondent be released on a supervision order, the respondent engaged in three one hour sessions with his treating psychologist, Ms Place.[62]
[62] Exhibit A, Treatment Progress Report dated 21 September 2017, page 162.
The treating psychologist described him as someone who willingly attended the counselling sessions and responded to topics introduced.[63] However, he was still somewhat superficial in his engagement as he failed to recognise his treatment needs or to demonstrate treatment gains.[64]
[63] Exhibit A, Treatment Progress Report dated 21 September 2017, page 162.
[64] Exhibit A, Treatment Progress Report dated 21 September 2017, page 162.
The Treatment Progress Report notes that, following his brother's passing, the respondent denied experiencing any significant emotional dysregulation.[65] He also denied that he was in a high risk period.[66]
[65] Exhibit A, Treatment Progress Report dated 21 September 2017, page 163.
[66] Exhibit A, Treatment Progress Report dated 21 September 2017, page 163.
The treating psychologist stated that the respondent was somewhat inconsistent in relation to his risk management strategies, particularly in regards to meeting his sexual needs in the community.[67]
[67] Exhibit A, Treatment Progress Report dated 21 September 2017, page 163.
The first of the three sessions occurred on 28 June 2017, two days before the respondent's release. The respondent expressed discontent with certain conditions of the supervision order.[68]
[68] Exhibit A, Treatment Progress Report dated 21 September 2017, page 163.
The second session occurred on 3 July 2017, after his release. A focus of the discussion was the passing of the respondent's 'first cousin brother'. The respondent's treating psychologist stated that the respondent denied that he was experiencing difficulties in managing his grief and that this represented a high risk situation for him, and he denied experiencing urges to use substances.[69]
[69] Exhibit A, Treatment Progress Report dated 21 September 2017, page 163.
On 10 July 2017, the respondent told his treating psychologist that he attended family properties without approval because he felt the need to grieve his brother's passing and to spend time with his extended family.[70] However, he told his treating psychologist that he had declined his family's offers of cannabis. She noted that, despite these events, he denied he was currently experiencing, or would experience, any ongoing difficulties in managing his grief.[71]
[70] Exhibit A, Treatment Progress Report dated 21 September 2017, page 163.
[71] Exhibit A, Treatment Progress Report dated 21 September 2017, pages 163 ‑ 164.
After the respondent was re‑incarcerated following the breaches, a joint counselling session took place on 28 August 2017, involving Ms Place and another psychologist. In this session, the respondent minimised the seriousness of his contraventions. He attributed the breaches to doing things 'too fast' upon his release, his failure to consider the consequences of his actions due to the overriding feeling that he needed to be close to family, and his belief that he could not decline the offer of cannabis from his sisters given the context of shared grief.[72]
Current assessment
[72] Exhibit A, Treatment Progress Report dated 21 September 2017, page 164.
Ms Korda interviewed the respondent on 11 September 2017 and 13 September 2017, for a total of approximately one hour and 45 minutes.[73]
[73] Exhibit A, Treatment Progress Report dated 21 September 2017, page 160.
She reported that the respondent 'provided contradictory information in regards to his contraventions, as well as an account of the contraventions that was inconsistent in some respects with the established and easily verifiable facts'.[74]
[74] Exhibit A, Treatment Progress Report dated 21 September 2017, page 164.
Further, the respondent expressed his frustration with the duration of his supervision order, the number of conditions, and the length of his curfew, believing that he was being discriminated against.[75]
[75] Exhibit A, Treatment Progress Report dated 21 September 2017, page 165.
The respondent reported that, in general, he was easily able to maintain abstinence in regards to alcohol and drug use.[76] He said that, when he was offered such substances, he would refuse in a polite manner.[77]
[76] Exhibit A, Treatment Progress Report dated 21 September 2017, page 165.
[77] Exhibit A, Treatment Progress Report dated 21 September 2017, page 165.
As to the contraventions themselves, the respondent attributed them to an impulsive decision made in the context of significant grief and on the second weekend after release when his supervising officer was unavailable.[78] He also said that, as an Indigenous man, it was difficult for him to have restrictions on where he was able to have contact with his family, particularly during this situation.[79]
[78] Exhibit A, Treatment Progress Report dated 21 September 2017, page 165.
[79] Exhibit A, Treatment Progress Report dated 21 September 2017, page 165.
The respondent admitted to smoking a single 'cone' of cannabis to relax and manage the emotions associated with his grief but denied being pressured into doing so.[80]
[80] Exhibit A, Treatment Progress Report dated 21 September 2017, page 165.
The respondent had difficulty outlining why his use of cannabis and his attendance at family residences were considered to be risk relevant situations.[81] He could not verbalise why he did not disclose his cannabis use prior to the results of the urinalysis test becoming available, despite having the opportunity to do so in a previous counselling session, other than highlighting his emotional state in response to his brother's passing.[82]
[81] Exhibit A, Treatment Progress Report dated 21 September 2017, page 165.
[82] Exhibit A, Treatment Progress Report dated 21 September 2017, page 165.
The respondent told Ms Korda that he did not really consider the consequences of his actions.[83] However, he also stated that he was aware he would be detected for his contraventions and said he thought he would only incur a fine.[84]
[83] Exhibit A, Treatment Progress Report dated 21 September 2017, page 165.
[84] Exhibit A, Treatment Progress Report dated 21 September 2017, page 165.
The respondent told Ms Korda that he did not think there were any common factors that contributed to both his contraventions in 2011 and 2017.[85] He disputed that he posed any risk of sexual offending upon his release as he said he addressed his alcohol use.[86] However, he was unable to explain why alcohol use was a risk factor for him, other than a vague reference to him being unable to control himself when drinking.[87]
[85] Exhibit A, Treatment Progress Report dated 21 September 2017, pages 165 ‑ 166.
[86] Exhibit A, Treatment Progress Report dated 21 September 2017, page 166.
[87] Exhibit A, Treatment Progress Report dated 21 September 2017, page 166.
The respondent asserted that he would show better commitment to his supervision conditions in the future.[88] The respondent emphasised that, while he breached his conditions, he did not re‑offend, engage in alcohol use, or remove his GPS tracker, and so community safety had been maintained.[89]
[88] Exhibit A, Treatment Progress Report dated 21 September 2017, page 166.
[89] Exhibit A, Treatment Progress Report dated 21 September 2017, page 167.
While the respondent was aware that another continuing detention order may be made instead of a supervision order, he said that this would be an unduly harsh response to 'one stupid mistake' that occurred in the context of his significant grief.[90]
Opinion
[90] Exhibit A, Treatment Progress Report dated 21 September 2017, page 167.
Ms Korda reported that the respondent continues to engage only superficially with treatment.[91] The limited engagement has been characterised by his denial of, and failure to disclose, risk relevant issues and behaviours.
[91] Exhibit A, Treatment Progress Report dated 21 September 2017, page 167.
Ms Korda noted that, in her current assessment, he downplayed the seriousness of his contraventions, appeared to distort and justify his behaviour, and showed no understanding as to why his behaviour was considered to be of high risk.[92] She wrote:[93]
To some extent, his belief that he does not pose a risk of sexual recidivism and has addressed what he considers to be the core contributing factor, i.e. alcohol use, is likely to compromise his insight into these issues and his ability to identify potential high risk situations as they present. It is also noteworthy that he was unable to explain the relevance of the risk factor of alcohol to his sexual offending behaviour. These deficits in insight persist despite his participation in extensive group and individual interventions focused on enhancing his understanding of his sexual offending and relapse prevention over time.
[92] Exhibit A, Treatment Progress Report dated 21 September 2017, page 167.
[93] Exhibit A, Treatment Progress Report dated 21 September 2017, page 167.
In conclusion, Ms Korda noted: 'Overall, his engagement in these sessions can be characterised as superficial, and his failure to disclose and acknowledge risk relevant issues is of significant concern, particularly given his previous contraventions after release to a supervision order in 2011'.[94]
Oral evidence of Ms Korda
[94] Exhibit A, Treatment Progress Report dated 21 September 2017, page 168.
In her oral evidence, Ms Korda said that probably the most concerning issue was that the respondent did not understand why there was a concern about him going to the residences and using cannabis.[95]
[95] ts 734.
Ms Korda said the use of cannabis was concerning for the reasons given by Dr Wynn Owen.
Psychiatric report
Dr Wynn Owen provided a psychiatric report dated 26 September 2017.
Interviews for psychiatric report
Dr Wynn Owen interviewed the respondent on two occasions, for a total of nearly three hours.[96]
[96] ts 703.
During the interviews, the respondent was not able to explain why he did not contact his CCO to ask to visit his relatives.[97] He confirmed that he was fully aware he was required to obtain permission to visit any private residence.[98] However, the respondent again stated that he was distressed and grieving his brother's passing, noting that he did tell his treating psychologist and his CCO of the loss.[99]
[97] Exhibit A, Psychiatric Report dated 26 September 2017, page 176.
[98] Exhibit A, Psychiatric Report dated 26 September 2017, page 176.
[99] Exhibit A, Psychiatric Report dated 26 September 2017, page 176.
As to the second contravention, the respondent said at the first interview that his decision to use cannabis was a 'spur of the moment' and that he 'just didn't stop and think'.[100] At the second interview, the respondent reported that he was aware of his conditions but, as his sisters were smoking, he did not want to upset them by refusing their offer.[101] The respondent said having 'just one cone' was a way to avoid conflict when he was already distressed and grieving.[102] He said: 'I'm so remorseful of my wrongfulness'.[103]
[100] Exhibit A, Psychiatric Report dated 26 September 2017, page 176.
[101] Exhibit A, Psychiatric Report dated 26 September 2017, page 176.
[102] Exhibit A, Psychiatric Report dated 26 September 2017, pages 176 ‑ 177.
[103] Exhibit A, Psychiatric Report dated 26 September 2017, page 177.
As to the response at the second interview, Dr Wynn Owen wrote:[104]
[This] response is more consistent with his answers when interviewed by Police and appears to indicate that Mr Dinah's decision to smoke cannabis was made after giving consideration to the risk of breach of conditions (ie consideration of consequences) and not simply an impulsive act in the context of emotional distress.
[104] Exhibit A, Psychiatric Report dated 26 September 2017, page 177.
At the time of the psychiatric report, the respondent continued to state that the second contravention 'was a minor one'.[105] The respondent expressed on a number of occasions that 'it was just one cone' and that the incident did not increase his risk of sexual offending.[106] When asked why he was prohibited from using illicit substances under his supervision order, he said that he did not know.[107]
[105] Exhibit A, Psychiatric Report dated 26 September 2017, page 177.
[106] Exhibit A, Psychiatric Report dated 26 September 2017, page 177.
[107] Exhibit A, Psychiatric Report dated 26 September 2017, page 177.
At the time of the psychiatric report, the respondent also still failed to recognise that his stress often led to him breaching his conditions.[108] When discussing his previous breaches, he attributed his behaviour to external events of emotional distress, such as his partner being pregnant.[109] However, he still could not see any pattern of stress leading to a decision that breached conditions, stating that each of the past breaches was quite different and that his stress at the time was valid.[110] He intimated that others should understand this.[111] This pattern of external blame has been noted by other reviewers.[112] Dr Wynn Owen noted: 'There is no evidence of learning from past experience or counselling in this recurrent pattern'.[113]
[108] Exhibit A, Psychiatric Report dated 26 September 2017, page 177.
[109] Exhibit A, Psychiatric Report dated 26 September 2017, page 177.
[110] Exhibit A, Psychiatric Report dated 26 September 2017, page 177.
[111] Exhibit A, Psychiatric Report dated 26 September 2017, page 177.
[112] Exhibit A, Psychiatric Report dated 26 September 2017, pages 177 ‑ 178.
[113] Exhibit A, Psychiatric Report dated 26 September 2017, page 178.
Further, when asked about his understanding of his re‑offending risk, he replied 'I'm not a high risk if I'm not drinking'.[114] He also said he did not understand any association between cannabis use and his risk, nor many of the conditions imposed on him in the latest supervision order.[115]
[114] Exhibit A, Psychiatric Report dated 26 September 2017, page 178.
[115] Exhibit A, Psychiatric Report dated 26 September 2017, page 178.
The respondent told Dr Wynn Owen that his plan for avoiding alcohol and illicit drugs in the future was 'I'm just going to walk away from now on … be stronger'.[116] However, the respondent later told Dr Wynn Owen 'I like my ganja' and said that his cannabis use 'has never been an issue'.[117]
[116] Exhibit A, Psychiatric Report dated 26 September 2017, page 178.
[117] Exhibit A, Psychiatric Report dated 26 September 2017, pages 178 ‑ 179.
The psychiatric report noted that the respondent became stressed by his fluctuating blood sugar levels due to his diabetes, but that the respondent also took poor care of his own diabetes.[118] Dr Wynn Owen wrote: 'Poor treatment adherence and widely fluctuating blood sugars are associated with distinct changes of mood and energy levels and will be a risk factor/stressor'.[119] When the respondent was questioned as to his rationale for refusing treatment for his diabetes, he could not explain his behaviour.[120] Dr Wynn Owen reported that this 'appears to be an attempt to retain mastery and control over some aspects of his current circumstances … in keeping with previous assessments of narcissism'.[121]
[118] Exhibit A, Psychiatric Report dated 26 September 2017, page 179.
[119] Exhibit A, Psychiatric Report dated 26 September 2017, page 179.
[120] Exhibit A, Psychiatric Report dated 26 September 2017, page 179.
[121] Exhibit A, Psychiatric Report dated 26 September 2017, page 179.
Dr Wynn Owen noted:[122]
Overall Mr Dinah's plans appear superficial and no different from previous preparations for release, notwithstanding that he has breached conditions on both occasions. This indicates a failure to learn from his past experiences and a high likelihood of breach in future.
Risk assessment
[122] Exhibit A, Psychiatric Report dated 26 September 2017, page 180.
Dr Wynn Owen considered the STATIC‑99‑R risk assessment instrument, which assists in the prediction of sexual and violent recidivism for sexual offenders.[123] The respondent scored in the high risk group for sexual re‑offending, with a likelihood of approximately 39% of re‑offending within five years of release.[124]
[123] Exhibit A, Psychiatric Report dated 26 September 2017, page 181.
[124] Exhibit A, Psychiatric Report dated 26 September 2017, page 181.
Dr Wynn Owen also considered the 3 Predictor Model.[125] The model was developed by Western Australian researchers and was tested on a Western Australian indigenous population, but it is not currently externally validated.[126] Overall, the model indicated a high likelihood of violent or sexually violent re‑offending for the respondent.[127]
[125] Exhibit A, Psychiatric Report dated 26 September 2017, page 182.
[126] Exhibit A, Psychiatric Report dated 26 September 2017, page 182.
[127] Exhibit A, Psychiatric Report dated 26 September 2017, page 183.
Lastly, Dr Wynn Owen used the Risk for Sexual Violence Protocol (RSVP).[128] The RSVP is a set of structured professional guidelines that can be considered a psychological test.[129] It considers the subject's risk factors, which are grouped into Sexual Violence History, Psychological Adjustment, Mental Disorder, Social Adjustment, Manageability and Other Considerations.[130]
[128] Exhibit A, Psychiatric Report dated 26 September 2017, page 183.
[129] Exhibit A, Psychiatric Report dated 26 September 2017, page 183.
[130] Exhibit A, Psychiatric Report dated 26 September 2017, page 183.
In relation to the respondent's cannabis use, Dr Wynn Owen stated:[131]
Cannabis use is an indicator of poor coping and thereby of increased risk however, unlike alcohol intoxication, cannabis intoxication does not per se present a risk factor for sexual offending. [The respondent] has stated, again, that he will not use alcohol or cannabis in the future but I note that he has stated this previously, most notably prior to release to supervision in 2011 and 2017.
[131] Exhibit A, Psychiatric Report dated 26 September 2017, page 185.
Under the heading of 'Manageability', Dr Wynn Owen noted that the respondent 'has significant problems with planning'.[132] The respondent also 'has had chronic problems with treatment' and this 'is of long standing and there is no indication that it will change in future'.[133] Further, the respondent 'has a chronic problem with supervision'.[134]
[132] Exhibit A, Psychiatric Report dated 26 September 2017, page 186.
[133] Exhibit A, Psychiatric Report dated 26 September 2017, page 186.
[134] Exhibit A, Psychiatric Report dated 26 September 2017, page 186.
Under the RSVP, Dr Wynn Owen further considered the respondent's risk scenarios. Dr Wynn Owen stated:[135]
[The respondent] is likely to be intoxicated, in the company of women known to him who are vulnerable through alcohol or cannabis intoxication. He will impulsively seek sexual contact with a female and will deal with any resistance with physical violence.
It is of note that while released to Community Supervision [the respondent] [chose] to place himself into exactly such a high risk situation when visiting female friends who were smoking cannabis [and] then smoking cannabis himself.
[135] Exhibit A, Psychiatric Report dated 26 September 2017, page 187.
In relation to the respondent's possible case management in the future, Dr Wynn Owen then stated:[136]
[The respondent] will require assertive monitoring in the community. His main potentially treatable risk factor is substance abuse however this does not appear to amenable to treatment. Abstinence from substance use is essential. Stable accommodation and highly structured activities will assist greatly.
Final opinion and recommendations
[136] Exhibit A, Psychiatric Report dated 26 September 2017, page 187.
Dr Wynn Owen concluded: 'I am of the opinion that [the respondent] presents very similarly to when assessed for Annual Review in 2016'.[137] This was because the respondent's contraventions confirmed that, although he understands enough about risk to describe risk situations and high risk factors, he has either not developed the self‑awareness and self‑management capability required to manage the risks or he chooses to place himself, knowingly, in risk situations, whether through impulsiveness, poor planning, or in a planned way as a precursor to re‑offending.[138] In addition, the recent contraventions confirm that the respondent's self‑report cannot be trusted for the purposes of supervision.[139]
[137] Exhibit A, Psychiatric Report dated 26 September 2017, page 189.
[138] Exhibit A, Psychiatric Report dated 26 September 2017, page 189.
[139] Exhibit A, Psychiatric Report dated 26 September 2017, page 189.
Dr Wynn Owen also concluded the following from his assessment of the respondent:[140]
(1)the contraventions involved the respondent knowingly placing himself in a very high risk situation, being in the company of females known to him who were intoxicated with cannabis and grieving, as well as using cannabis himself;
(2)the respondent has two chronic illnesses, diabetes and cirrhosis, which are potentially debilitating and which will eventually significantly reduce his physical and physiological ability and drive to offend;
(3)the respondent's current libido/sex drive is probably much higher than what he is reporting, but both diabetes and cirrhosis tend to reduce sex drive; and
(4)future counselling in relation to sexual offending or substance abuse is likely to offer little or no benefit because there has been little or no benefit to date.
Oral evidence of Dr Wynn Owen
[140] Exhibit A, Psychiatric Report dated 26 September 2017, page 189.
In his oral evidence, Dr Wynn Owen said that the likelihood of the respondent committing further breaches of a supervision order if re‑released was close to 100%. Understandably, he was not able to assess the likelihood that the respondent would commit a serious sexual offence. However, Dr Wynn Owen said that, if released, it was likely that the respondent would repeatedly place himself in high risk situations over time. Dr Wynn Owen considered that it was likely that the respondent would breach his conditions within a similar time frame to his previous history of breaches in the first two releases on community supervision orders.[141]
[141] ts 700.
Dr Wynn Owen noted it was significantly concerning that the respondent had, on this occasion, breached two 'absolutely black and white' conditions that were core conditions, in the sense that they were so closely related to the respondent's risk of re‑offending.[142]
[142] ts 699.
Dr Wynn Owen said that the use of cannabis is not usually regarded as a direct causal factor in sexual offending risk. However, he explained that cannabis was nevertheless of significance as it alters judgment, and makes one more likely to make judgments that would lead to the next stage of risk,[143] such as choosing to then drink alcohol. Dr Wynn Owen also noted that, at the time the respondent used cannabis, he was with women known to him, which was already a situation of heightened risk.[144]
[143] ts 685. See also ts 706.
[144] ts 685. See also ts 698.
Dr Wynn Owen said it was difficult to see how modifying the conditions could mitigate future risk behaviours.[145]
[145] ts 699.
Dr Wynn Owen noted that the respondent did not understand that cannabis was a risk factor and did not know why the supervision order prohibited its use.[146] Dr Wynn Owen was concerned that the respondent would continue to use cannabis.[147]
[146] ts 684, 685.
[147] ts 689.
Dr Wynn Owen said that it was not possible to rely on the respondent's planning to manage risk. He further said that supervision requires a reliable self‑reporter as well as reliable attendance.[148] As neither of these things have been the case with the respondent, the likelihood is that that pattern of behaviour would occur in the future.[149]
[148] ts 696.
[149] ts 697. See also ts 702.
Finally, as noted earlier, Dr Wynn Owen reported that the respondent's current libido/sex drive is probably much higher than what he is reporting. In his evidence, he said that the respondent was not a reliable self‑reporter, and the respondent's claim to have a low libido seemed inconsistent with his statement to Ms Place that he would satisfy his sexual desires by attending a brothel.[150]
[150] ts 692.
Cannabis use in custody
The respondent has been in custody since 13 July 2017 to enable the State's application for a continuing detention order to be dealt with. On 1 October 2017, while in custody, the respondent again tested positive to cannabis.[151]
[151] Exhibit B.1 and B.2.
Evaluation
I am satisfied that there is an unacceptable risk that, if I do not make a continuing detention order, the respondent would commit a serious sexual offence.
Dr Brett's evidence before Fiannaca J was that relapse by the respondent into substance use was the most significant warning that he is at risk of committing a serious sexual offence.[152] Fiannaca J accepted that evidence, as do I.
[152] Dinah [No 9] [123].
While cannabis use was not a direct causal factor in the respondent's past offending, it is still significant in relation to risk for a number of reasons.
First, cannabis use can impair decision‑making and render a person more likely to act impulsively or to make poor choices.[153]
[153] ts 706, 739.
Second, its use, contrary to the conditions of the supervision order, indicates the respondent's ongoing disregard of the conditions and of the law, his lack of understanding as to why cannabis use is a risk factor,[154] and his inability to learn.[155]
[154] ts 689.
[155] ts 687.
Dr Wynn Owen's evidence before me was that it was significantly concerning that the respondent breached two 'black and white' conditions that were core conditions, in the sense that they were closely related to his risk of re‑offending.
He considered it was almost 100% certain that the respondent would breach conditions if released on another supervision order. Dr Wynn Owen said that, if released, it was likely that, over time, the respondent would repeatedly place himself in high risk situations. Dr Wynn Owen considered it was likely the respondent would breach his conditions within a similar time frame to his previous breaches in the first two releases on supervision orders.
I accept this evidence.
After being released on 9 May 2011 on a supervision order, the respondent breached conditions of the order by using cannabis on six occasions between 6 and 29 June 2011. After that time, he used alcohol and cannabis on multiple occasions until he was arrested. The first breach, of using cannabis, therefore occurred within a month of his release. The first breach of using alcohol occurred on 15 July 2011 (and he used cannabis the same day), which was just over two months after his release.[156]
[156] Exhibit C.1.
After being released on 28 September 2011 on a supervision order, the respondent breached conditions of the order on 8 November 2011, and on days following. The initial breaches involved a breach of the curfew condition and failures to report as required. On 10 November 2011, the respondent cut off his electronic anklet used to monitor his location. On 16 November 2011, the respondent was apprehended and found to have a blood alcohol level of 0.05%. The first breach, on 8 November 2011, occurred within six weeks, and within days he had absconded.[157]
[157] Exhibit C.2.
In relation to the breaches before me, these occurred one week after the respondent's release. The respondent placed himself in a high risk situation, breaching two core conditions. He lied about using cannabis, even after he had been required to give a urine sample. He also lied in saying that the breaches occurred in the context where he was suffering significant grief at a time when his supervision officer was unavailable, claiming the breaches had occurred on a Saturday. The breaches occurred on 6 July 2017, which was a Thursday. He also gave conflicting accounts of his reasons for using the cannabis - saying on one occasion that it was a spur of the moment decision and he did not stop to think and at other times saying that he felt pressured to use cannabis by his sisters and the situation.[158]
[158] Exhibit A, Psychiatric Report dated 26 September 2017, pages 176 ‑ 177 and ts 682 ‑ 684.
Based on all of the materials, in my view, it is highly likely that the respondent would breach conditions of a further supervision order. It is highly likely that he would seek to conceal such breaches from the authorities and lie if asked direct questions. It is likely that he would repeatedly place himself in high risk situations. In my view, there is an unacceptable risk that, if I do not make a continuing detention order, the respondent would commit a serious sexual offence within a relatively short period of time after his release.
Accordingly, I must make a continuing detention order.
I understand that the respondent will see this as a very harsh reaction to his breaches. However, this unfortunately serves to underline the respondent's complete failure to appreciate the larger significance of his behaviour.
I acknowledge that the respondent has suffered extreme adversity in his childhood, which contributed to a number of his attitudes and behaviours. I also acknowledge that the respondent has served his time for his sexual offending and has remained in custody for long periods of time since 2009 for the protection of the community. However, the law is clear. There is an unacceptable risk that, if I do not make a continuing detention order, the respondent would commit a serious sexual offence within a relatively short period of time after his release. I am therefore required by law to make a continuing detention order.
Penalty for breach
Finally, I am required to impose a penalty for the second breach of the conditions. This was the respondent's breach of condition 28, by his use of cannabis. As noted earlier, the respondent was fined in the Magistrates Court in relation to the first breach.
The maximum penalty for a breach of a condition of a supervision order is 2 years' imprisonment.[159]
[159] Section 40A(1) of the Act.
The offence is not trivial. The respondent breached a core condition of his supervision order within a week of his release. The respondent had placed himself in the company of women known to him and who were vulnerable due to their own use of cannabis, and their grief. He was already in a situation of heightened risk. He then used cannabis, which made it more likely he would make judgments that would further increase the risk. He lied to his CCO, denying he had used cannabis. In these circumstances, the breach was serious.
There are some matters of mitigation. First, the respondent pleaded guilty to the breach. He did so when the matter first came before this court, on 17 July 2017. I consider this was at the first reasonable opportunity. Further, at the time of the breach, he was under stress. He had just been released from custody, and his cousin brother had recently died.
There are some matters which are not aggravating, but mean that the respondent is not entitled to mitigation on account of remorse or positive prospects of rehabilitation. First, it is almost certain the respondent would breach the conditions of any further supervision order. Second, while the respondent was in custody waiting to be dealt with for this breach, he again used cannabis. Third, the respondent has no insight into the seriousness of his conduct, and has repeatedly said to the authorities that it was 'just one cone'.
These matters also reinforce the need for personal deterrence. However, the respondent has been in custody since 13 July 2017 as a result of the breach and the interim detention order, and will remain in custody as a result of the continuing detention order that I will make today. In my view, the need for personal deterrence has been met, at least to a large extent.
General deterrence is an important consideration. Offenders on supervision orders need to know that there will be serious consequences if they breach a condition of their supervision order, particularly if the condition was closely related to risk. However, I consider that the respondent's time in custody on remand and the fact that he will remain in custody under a continuing detention order means that the need for general deterrence has been met to an extent.
The respondent has been in custody since 13 July 2017 in relation to the breach of condition 28. Since 17 July 2017, he has also been in custody due to an interim detention order made in the contravention proceedings under s 23 of the Act. I take into account all of that time, being approximately four months.
Despite the seriousness of the offence, I am not satisfied that imprisonment is the only appropriate disposition in the circumstances. Counsel for the respondent submitted that the appropriate penalty was a fine, and I accept that submission.
I therefore impose a fine of $1,000.
Outcome
I rescind the supervision order made by Fiannaca J on 9 June 2017.
I make a continuing detention order in relation to the respondent.
I order that the respondent pay a fine of $1,000 in relation to the breach of condition 28 of the supervision order.
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