Director of Public Prosecutions (WA) v Dinah [No 4]

[2011] WASC 278

DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- DINAH [No 4] [2011] WASC 278

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 278
Published:	07/10/2011
Case No:	MCS:2/2009	Heard:	28 SEPTEMBER 2011
Coram:	COMMISSIONER SLEIGHT	Delivered:	28/09/11
No of pages:	8	Judgment Part:	1 of 1
Result:	Supervision order amended
Category:	B
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Parties:	DIRECTOR OF PUBLIC PROSECUTIONS (WA) MACKER JOSEPH DINAH
Catchwords:	Criminal law and procedure Dangerous sexual offender Breach of supervision order Turns on its own facts
Legislation:	Dangerous Sexual Offenders Act 2006 (WA), s 22, s 23
Case References:	Director of Public Prosecutions (WA) v Dinah [No 3] [2011] WASC 130 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- DINAH [No 4] [2011] WASC 278 CORAM : COMMISSIONER SLEIGHT HEARD : 28 SEPTEMBER 2011 DELIVERED : 28 SEPTEMBER 2011 PUBLISHED : 7 OCTOBER 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 - Breach of supervision order - Turns on its own facts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 22, s 23

Result:

Supervision order amended

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Category: B

Representation:

Counsel:

Applicant : Mr L Hobson
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 Dinah [No 3] [2011] WASC 130
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297


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COMMISSIONER SLEIGHT:

(The decision was delivered orally and has been edited from the transcript.)

1 This matter concerns an application by the Director of Public Prosecutions (WA) (the DPP) under s 22 and s 23 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) arising from alleged breaches by Mr Dinah of a supervision order made on 9 May 2011. The DPP seeks an order that Mr Dinah be detained in custody for an indefinite term or alternatively be placed on an amended supervision order. However, Counsel appearing for the DPP has made it clear that the DPP's primary submission is that Mr Dinah should be detained in custody for an indefinite term.

History

2 On 23 April 2009, his Honour 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.

3 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 his Honour McKechnie J. His Honour made an order that the detention order continue for another year. The second annual review of this order came before me on 9 May 2011, when I made a finding that Mr Dinah remained a serious risk to the community: Director of Public Prosecutions (WA) v Dinah [No 3][2011] WASC 130 [3] (Dinah [No 3]).

4 However, I concluded that a supervision order be made. Accordingly, the continuing detention order was rescinded and replaced with a supervision order. In making the supervision order, I took into account, amongst other things, the following:

(1) Reports which indicated that Mr Dinah had made progress in addressing his risk factors of reoffending.

(2) A report of Dr Wojnarowska dated 24 April 2011, in which Dr Wojnarowska expressed the view that it was appropriate to consider releasing Mr Dinah on a supervision order. Further,

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Dr Wojnarowska expressed the opinion that further detention may result in a loss of the gains that had been made in relation to treating Mr Dinah, and he may become institutionalised.

(3) A progress report prepared by psychologists, Ms Joanne Collyer and Ms Wendy Wager, dated 28 April 2011, which stated that in the authors' opinion, a further group program was unlikely to produce additional treatment gains, and may even be counterproductive. The report indicated that a community based program was likely to be more beneficial.

(4) The DPP did not oppose a supervision order.

5 The supervision order made on 9 May 2011 was for a period of 5 years, and subject to 31 conditions. Condition 25 of the supervision order prohibited Mr Dinah from using illicit substances. Condition 29 prohibited Mr Dinah from using alcohol. Mr Dinah's compliance with the supervision order has been poor. Mr Dinah has breached the supervision order by using cannabis and alcohol.

6 Despite warnings, Mr Dinah has returned positive urinalysis results on nine occasions for cannabis, although one positive result may have been the result of residue from a previous occasion; and made three disclosures of alcohol consumption. These breaches have significance, because on the past occasions that Mr Dinah has committed sexual offences, alcohol has consistently been involved: Dinah [No 3] [9]. The use of illicit substances is likely to also be a risk factor in terms of the chances of Mr Dinah reoffending.

7 I have considered psychological progress reports of Ms Tina Marley dated 25 August 2011 and 21 September 2011. In her report dated 25 August 2011, Ms Marley states that at the time of Mr Dinah's release on the supervision order, he was not using illicit substances; was accepting help from an outreach mentor and his sister, did not appear to have any emotional difficulties; was strongly complying with the supervision; and there was no evidence of hostility or sexual preoccupation. At that stage, his acute risk assessment indicated that the risk factors could be managed well, and victim access was not a concern.

8 Following a review of his risk management factors in August 2011, Ms Marley concluded that there was evidence that Mr Dinah was using cannabis on an ongoing basis. He was ruminating on the negative aspects of his life. Mr Dinah saw himself as a victim of a harsh community supervision regime. There was evidence of his reluctance to disclose

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reasonable information, and there was an increased risk of hostility towards his former partner, due to a breakdown in their relationship. Ms Marley has given evidence today that she now understands that there has not been a breakdown of that relationship. However, based upon these changes that Ms Marley had observed, she assessed Mr Dinah as being a high risk of sexual, violent and generalist offending.

9 The report of Ms Marley dated the 25 August 2011 concludes as follows:

Mr Dinah is currently demonstrating some difficulties managing those factors reliably predictive of reoffending; and he appears to have adopted a more careless or provocative attitude with regards to his supervision than when he was first released. In particular, he appears to be struggling to desist from substance use; and there is evidence he is finding the current management/support system threatening and undermining of his masculinity and status. Therefore in order to manage his apparent escalation in risk it is timely to assist him to stop and reflect on his behaviour and the responsibilities he has to maintain a pro-social (offence-free) lifestyle. He appears to respond to clear consequences to his antisocial behaviour and it may be timely to redevelop a framework of expectation, boundaries and consequences using a more formal consequence for his behaviour than available within the existing supervision regime. This may assist him to reduce or refrain from substance us - which is conceptualised as critical to him managing risk factors associated with violent and sexual offending. Furthermore, it remains critical that the multi-disciplinary team continue to be consistent in the messages provided. (emphasis added)

10 As a result of the contents of this report, I requested a further report from Ms Marley to elaborate as to the type of further conditions that might be set to achieve the objectives stated by her in her report. In a further report dated 21 September 2011, Ms Marley commented as follows:

It must be first noted that since his release on 9/5/11 Mr Dinah has presented significant challenges to those managing and supporting him in the community. Likely as a result of his personality features and associated antisocial attitudes, he has resisted authority, provided information of dubious truthfulness (or did not disclose information at all), was not open to interventions that addressed the underpinnings for offending or support for his adjustment to the community and viewed any interactions that were not amiable or compliant to his desires, requests or identity as hostile.

11 Ms Marley's report of 21 September suggested further interventionist programming if Mr Dinah was to be placed into the community under a
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supervision order. Ms Marley indicated that it was important that the Court made it clear to Mr Dinah the consequences of his noncompliance. Her report dated 21 September 2011 included as follows:

Adherence for the conditions of any Order is going to present with significant challenges for Mr Dinah, but at this stage it appears too early to determine that the risk posed by him cannot be managed. However, the factors he presents with indicate he may need assertive management with natural consequences for non-compliance given he does not appear to have the internal mechanisms for self-management. He is potentially a risk to his partner given his offending history. An additional complicating factor is his personality and pro-criminal attitudes and beliefs particularly relating to intimate relationships. During his recent period in the community, he concealed information about his relationship, provided information of dubious truthfulness and demonstrated a tendency to become more hostile with supervision and supports as his risky behaviour escalated. Those managing him will therefore be mindful of changes in his demeanour and functioning for signs of non-compliance and poor coping.

Communication with Mr Dinah in prison since his remand in custody indicates that he is very keen to return to the community; and is contrite and mindful of the mistakes he recently made. I have discussed the above framework with him and he expressed a willingness to undertake these strategies. He will continue to receive close psychological involvement should he be released to the community.

Provisions of the Act

12 Under s 23 of the Act, if the Court is satisfied on the balance of probabilities that a person who is subject to a supervision order has contravened the order, the Court may:

(a) make an order amending the conditions and, if the court considers it appropriate in order to achieve compliance with the supervision order or necessary to ensure adequate protection of the community, make any other order; or

(b) if the court is also satisfied there is an unacceptable risk that, if an order under this paragraph were not made, the person would commit a serious sexual offence, order that the person be detained in custody for an indefinite term for control, care, or treatment.

13 Like other provisions of the Act, s 23 provides that the paramount consideration is to ensure adequate protection of the community.

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14 The words 'unacceptable risk' in s 23 refers to a risk which is unacceptable, having regard to the serious consequences of making a finding that a person not the subject of a continuing detention order, would commit a serious sexual offence: Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [66] (Wheeler JA, with whom Le Miere AJA agreed); Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [14], [24] (Steytler P & Buss JA).

15 The word 'unacceptable' necessarily connotes a balancing exercise. The Court is to have regard on the one hand to the nature and likelihood of the risk - that is, the risk of the commission of further serious sexual offence with serious consequences for the victim; and on the other hand, the serious consequences for the offender if an order is made, placing the offender in indefinite detention without having committed any further offence of a sexual nature: DPP v GTR [27]. However, in performing this balancing exercise, the Court must give effect to the provisions of the Act, which provide that the paramount consideration is the need to ensure adequate protection of the community.

Conclusion

16 It is not disputed by Mr Dinah that he has breached the supervision order by using cannabis and alcohol. Accordingly, I am satisfied on the balance of probabilities that he has contravened the supervision order. The critical issue in this matter is whether I should make an order that Mr Dinah be placed in custody for an indefinite term, or whether I should re-release him under a supervision order.

17 Although Mr Dinah has breached the supervision order previously made on 9 May 2011, I conclude that the current term of custody served by him has had a salutary effect, and has impressed upon him the need for his compliance with the supervision order. Having carefully considered the matter, and in particular the reports and evidence of the psychologist Ms Marley, I conclude that I should make a further supervision order.

18 Ms Marley, in her report dated 21 September 2011, makes various amended recommendations as to managing Mr Dinah's risk, in addition to the Court giving a clear indication to Mr Dinah of the consequences of noncompliance. These amended recommendations, if put in place, will provide a more intensive intervention. They include random drug-testing and the placement of Mr Dinah in the Pathway program, which is an intensive substance use program.

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19 The recommendations made by Ms Marley can all be implemented under the existing conditions of the supervision order of 9 May 2011. I take into account that Mr Dinah was convicted before me of six offences of breaching the supervision order of 9 May 2011, and today was placed on a suspended term of imprisonment. This suspended sentence should make it clear to Mr Dinah of the consequences of noncompliance, as recommended by Ms Marley in her report dated 21 September 2011.

20 I conclude that Mr Dinah should be released on the same terms as the supervision order of 9 May 2011. However, due to his regular breach of that order, I believe he should not receive any credit for the period of time he was subject to that order, and accordingly I amend the previous order so that the term of 5 years will recommence as from today.