Director of Public Prosecutions (WA) v Dinah [No 3] - [2011] WASC 130

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- DINAH [No 3] [2011] WASC 130

CORAM: COMMISSIONER SLEIGHT

HEARD: 9 MAY 2011

DELIVERED : 9 MAY 2011

PUBLISHED : 19 MAY 2011

FILE NO/S: MCS 2 of 2009

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
MACKER JOSEPH DINAH
Respondent

Catchwords:

Criminal law and procedure - Dangerous sexual offender - Review - No new principles

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Detention order rescinded and supervision made

Category: B

Representation:

Counsel:

Applicant: Mr D Dempster
Respondent: Mr D J McKenzie

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: David McKenzie

Case(s) referred to in judgment(s):

Director of Public Prosecutions (WA) v TJD [2011] WASC 83

COMMISSIONER SLEIGHT: This is an application for the second annual review of a continuing detention order made against the respondent Mr Dinah, under the DangerousSexual Offenders Act2006 (WA) (the Act). On 23 April 2009, McKechnie J concluded that Mr Dinah was an unacceptable risk to the community if he was not subject to a continuing detention order or a supervision order. Further, his Honour concluded that a supervision order would not adequately protect the community and made an order for Mr Dinah to be held in custody for an indefinite term (a continuing detention order). Under pt 3 of the Act the continuing detention order is to be subject to an annual review. The first such review occurred on 30 April 2010 before McKechnie J. His Honour made an order that the detention order continue for another year.
For the purposes of this second annual review, a book of material has been tendered by consent. This material includes:
1.a Pathways treatment completion report dated 4 March 2010;
2.a Sex Offender Intensive Programme completion report by Dr D Summerton dated 6 February 2011;
3.a psychiatric report of Dr Gosia Wojnarowska dated 24 April 2011;
4.a treatment progress report prepared by psychologists Ms Joanne Collyer and Ms Wendy Wager dated 28 April 2011; and
5.a community supervision assessment report dated 29 April 2011.
On the application for review of a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains 'a serious danger to the community': s 33(1) of the Act.
Whether a person remains a serious danger to the community requires a consideration of the criteria set out in s 7 of the Act. The relevant provisions and principles were summarised in my decision in Director of Public Prosecutions (WA) v TJD [2011] WASC 83. It is unnecessary that I repeat them.
It is not disputed in this matter that Mr Dinah remains a serious danger to the community. Notwithstanding this concession, it is still necessary for me to examine the evidence and make that finding.
Section 32 of the Act provides that on a review that unless the court orders otherwise the chief executive officer is required to arrange two psychiatrists to review Mr Dinah and two psychiatric reports made available to the court. Only one psychiatric report has been prepared, being a report of Dr G Wojnarowska dated 24 April 2011. However, in view of the psychological report and other reports that have been tendered, I conclude that this one psychiatric report is adequate. Accordingly, I order pursuant to s 32 of the Act that only one psychiatric report is required.

Unacceptable risk

As mentioned above, on 23 April 2009 McKechnie J found that Mr Dinah was an unacceptable risk to the community and made a continuing detention order. I have considered the evidence before McKechnie J on that application, including two psychiatric reports - a report of Dr Wojnarowska dated 5 April 2009 and a report of Dr Adam Bretts dated 6 April 2009.
Mr Dinah's record of convictions include the following convictions and penalties for sexual offences:
•22 June 1984, rape, 4 years' imprisonment;
•25 May 1987, indecent assault, 3 months' imprisonment;
•20 February 1990, aggravated sexual assault, 6 years' imprisonment;
•14 May 1990, aggravated sexual assault, 5 years' imprisonment, concurrent with existing terms; and
•10 March 2000, sexual penetration without consent, 9 years' imprisonment.
On each of the occasions of sexual offending the victim was a female known to Mr Dinah. The offending was associated generally with violence and psychological coercion. Alcohol was consistently involved.
The psychiatric reports concluded Mr Dinah was a high risk of reoffending. Mr Dinah was found to have previous and ongoing attitudes that supported sexual violence.
Based upon the further material tendered in support of this annual review, I conclude that Mr Dinah has made some progress in rehabilitation. Details of the changes will be presented later in this decision. However, notwithstanding these changes, I am satisfied, applying the criteria of the Act, that Mr Dinah remains a serious danger to the community.
Under s 33(2) of the Act the court may on an annual review, if it finds that the person remains a serious danger to the community, either decline to rescind the continuing detention order or rescind the order and make a supervision order. In making this decision the paramount consideration is the need to ensure adequate protection of the community: s 33(3) of the Act.
Based upon the material before me I concluded that since the original detention order and the first annual review there has been progress made by Mr Dinah largely in the form of an attitudinal change, which, although perhaps not substantial, is significant. As result of these changes the applicant no longer opposes a community supervision order being made. Of course, although the applicant does not oppose such an order being made, I need to be satisfied that by the making of the order there is adequate protection of the community.
Mr Dinah made minimal progress after he completed a Pathways treatment programme on 19 February 2010. In the report dated 4 March 2010 it states that Mr Dinah demonstrated limited treatment gains in relation to responsibility taking, coping/emotional regulation, problem solving, conflict resolution and relationship issues. It was recommended that Mr Dinah complete a Sex Offender Intensive Programme and repeat a Pathways programme.
Mr Dinah completed a Sex Offender Intensive Programme on 16 December 2010. In a report dated 6 February 2011 it was concluded:
He is considered to have made moderate treatment gains given the challenges that such a process obviously posed for him. He made some shifts in terms of acceptance for responsibility, but there remains considerable evidence of minimisation. He has been assessed as a high risk of reoffending and clearly management of risk remains a significant challenge for him and those responsible for his supervision. However, he is considered to be more amenable to supervision than has been the case during his previous periods in the community.
A report of Dr Wojnarowska dated 24 April 2011 noted that Mr Dinah's last 12 months' imprisonment were 'incident free' and noted the positive aspects of the report of the Sex Offender Intensive Programme. Dr Wojnarowska concluded:
Mr Dinah's treatment gains, although not perceived as major, had been more significant than expected given his previous attitude and personality structure. His risk of reoffending remains high but the positive change in his manageability have been a significant negotiating factor.
The report goes on to state Mr Dinah has achieved his potential and his risk of reoffending is not likely to be alleviated with continuous detention. The report concludes with a recommendation that a supervision order be considered. Dr Wojnarowska expresses the opinion that further detention may result in loss of gains and institutionalisation.
In a further treatment progress report prepared by psychologists Ms Joanne Collyer and Ms Wendy Wager dated 28 April 2011 the following conclusion was reached:
It is clear that in addition to therapeutic intervention, structured case management and clear and repeated discussions regarding the behaviour expected of him and the consequences should he fail to do so will be required. It is the authors opinion that a further custodial group programme is unlikely to yield additional treatment gains, and may even be counter productive. Although Mr Dinah would be unlikely to benefit from a programme in custody due to the personality features and noted attitudinal issues of Mr Dinah regarding this, a community based programme would likely to be viewed by Mr Dinah more positively. Mr Dinah, is likely to be less resistant to a community based programme and thus would likely benefit from the support and content of a programme such as the maintenance programme, that can incorporate topics specifically tailored to his treatment needs. Individual counselling could be provided in either a custodial or community setting. The duration and extent of such counselling will be determined by Mr Dinah's identified need and motivation.
A community supervision assessment report dated 29 April 2011 confirmed that Mr Dinah since the last annual review had satisfactorily completed the Sex Offender Intensive Programme, developed an individual management plan (to reduce the risk of a sexual offending relapse) and generally demonstrated satisfactory prison conduct. Also, Mr Dinah had engaged with the dangerous sexual offenders' psychologist and with a prison based addictions counsellor.
On the basis of the above evidence I am satisfied that further progress is likely to be made in Mr Dinah's management by a community supervision order being made. The danger of a continuing detention order is that there could be a deterioration in Mr Dinah's condition and he may become institutionalised. I am satisfied that the community can be adequately protected by a strict supervision order.
Accordingly, I conclude that a supervision order should be made. The continuing detention order of the 23 April 2009 will be rescinded and replaced with a supervision order for a period of 5 years. I conclude the order should be for this period of time given the entrenched nature of Mr Dinah's offending predictors. The terms of the order will require compliance with strict conditions. The terms of the order are attached to this decision as Annexure A.

ANNEXURE A

IN THE SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

MCS No 2 of 2009

IN THE MATTER of Part 3 of the Dangerous Sexual Offenders Act 2006

DIRECTOR OF PUBLIC PROSECUTIONS

FOR WESTERN AUSTRALIA Applicant

-and-

MACKER JOSEPH DINAH Respondent

SUPERVISION ORDER MADE BY
COMMISSIONER SLEIGHT ON 9 MAY 2011

The Court, having found pursuant to section 33(2)(b) of the Dangerous Sexual Offenders Act 2006 (WA) that the Respondent remains a serious danger to the community, rescinds the continuing detention order and orders that the Respondent be the subject of a supervision order for a period of five (5) years, on the following conditions:

The Respondent must:

Residence

Take up residence at [suppressed] and reside continuously at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (‘CCO’);

Not leave or remain out of the State of Western Australia without the permission of a Manager of the Department of Corrective Services, and where such permission is granted, to abide by any conditions imposed on that permission during the period of absence from the State.

Curfew

Be subject to a curfew, which may be varied from time to time as directed by a CCO, such that he is to remain at and not to leave his approved address between the hours of 10.00pm and 6.00am. The Respondent may only leave the address during such hours:
i.        to obtain urgent medical or dental treatment for the respondent;
ii.for the purpose of averting or minimising a serious risk of death or injury to the respondent or to another person;
iii.to obey an order issued under a written law (such as a summons) requiring the offender’s presence elsewhere;
iv.      for a purpose, and for a duration, approved of in advance by a CCO; or
v.       on the order of a CCO.

When subject to a curfew under this order, present himself for inspection at the front door or cartilage of his approved address, or speak on the telephone, to any CCO or police officer or their agent monitoring his compliance with the curfew; to ensure that all those people present in the residence who may answer the telephone or the door are aware as to his obligations, and to request of them assistance to comply with his obligations by alerting him to such attempts to contact him by persons monitoring his compliance with the curfew;

When subject to a curfew under this order, submit, if requested by a CCO, to electronic monitoring of his compliance with the curfew, including the wearing of an electronic monitoring device on his person and/or the installation of any device or equipment at his place of residence, as if he were the subject of a curfew requirement under section 75 and 33H of the Sentencing Act 1995 (WA) (or any corresponding sections of the appropriate Act should those sections be amended or replaced);

Reporting to CCO and supervision by CCO

Report to a CCO at South West Coastal Community Corrections Centre, Level 1, 8 Holdsworth Street, Fremantle WA 6160 within 24 hours of his release from custody under this order, and thereupon advise the CCO of his current name and address;
Thereupon be under the supervision of a CCO, and when so supervised, to comply with the same requirements set out in section 76 of the Sentence Administration Act 2003 (WA) that offenders must comply with under that section;

Report to, and receive visits from, the CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of the Respondent;

Notify the CCO of any change of his name at least 2 working days before the change is due to happen;

Not to change address, commence or change employment without the prior approval of the CCO;

Attendance at programs

Engage, including engage in one-on-one counselling, with any psychiatrist, psychologist, mentor, support service, support person and/or accommodation provider nominated by a CCO, as directed by the CCO;

Attend programmes to address his offending behaviour as directed by a CCO, and comply with the requirements of such programmes;

Reporting to WA Police

Report to the Officer-in-Charge of the Sex Offender Management Squad Headquarters at 250 Adelaide Terrace, Perth within 48 hours of release from custody, and thereafter report to an receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate;

Thereafter comply with all obligations imposed on him pursuant to the Community Protection (Offender Reporting) Act 2004 (WA), should any order under that Act be made in respect of him;

If requested, give to police officers monitoring his compliance with his obligations under the Community Protection (Offender Reporting) Act 2004, and/or his compliance with his obligations under this order, permission to enter and search his residence for the purpose of that monitoring;

Advise police upon request of the names of all of his internet service providers, all mobile or landline telephone services used by him and all internet user names or identities used by him;

Disclosure/Exchange of information between agencies

Agree to the exchange of information between persons and agencies involved in his supervision, including otherwise confidential information;

Allow his CCO, Dangerous Sex Offender psychologist, police, or other persons or agencies approved by the CCO, to (i) interview any associates or potential associates, and (ii) to disclose to them his offending history including otherwise confidential information;

5

Restrictions on contact with victims

Have no contact, directly or indirectly, with the victims of his sexual offending, unless such contact is approved by his CCO or conducted strictly pursuant to agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Corrective Services.

Criminal conduct

Not commit any sexual offence, as defined in the Evidence Act 1906 (WA) section 36A;

Not commit any offence under s 202, s 203, s 204, s 204A, or s 557K Criminal Code 1913 (WA);
Not commit any offence under either s 70A or s 401 Criminal Code 1913 where the place involved in the offence is either a place ordinarily used for human habitation, or a place ordinarily occupied by children;

Not commit any other criminal offence punishable by imprisonment, the commission of which included, or was accompanied by, violence against or threats against children under the age of 18 years;

Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA);

Not possess, consumer or use any prohibited drugs, plants or substances including, but not limited to, cannabis;

Attend for, and submit to, urinalysis or other testing for illicit drugs or substances as directed by the CCO or by a police officer;

6

Not attempt to commit any offence the commission of which would constitute a breach of a condition of this order;

Prevention of high-risk situations

Not associate with any person known by him to have committed a sexual offence, unless such association is authorised in advance by the CCO;

Not use alcohol;

Attend for, and submit to, urinalysis or other testing, including breath-testing, for alcohol as directed by a CCO or by a police officer, in order to monitor his compliance with the immediately prior condition;

Make full disclosure of your past offending, within a period considered reasonable by his CCO, to anyone with whom a relationship is commenced.

COMMISSIONER SLEIGHT