Director of Public Prosecutions (WA) v Dinah [No 5]
[2012] WASC 29
•1 FEBRUARY 2012
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- DINAH [No 5] [2012] WASC 29
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 29 | |
| 01/02/2012 | |||
| Case No: | MCS:2/2009 | 22 NOVEMBER 2011 & 25 JANUARY 2012 | |
| Coram: | COMMISSIONER SLEIGHT | 25/01/12 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Supervision order rescinded Indefinite term imposed | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) MACKER JOSEPH DINAH |
Catchwords: | Criminal law and procedure Dangerous sexual offender Application arising from breaches of supervision order No new principles |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA) |
Case References: | Director of Public Prosecutions (WA) v Dinah [2011] WASCSR 145 Director of Public Prosecutions (WA) v Dinah [No 3] [2011] WASC 130 Director of Public Prosecutions (WA) v Dinah [No 4] [2011] WASC 278 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
MACKER JOSEPH DINAH
Respondent
Catchwords:
Criminal law and procedure - Dangerous sexual offender - Application arising from breaches of supervision order - No new principles
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Supervision order rescinded
Indefinite term imposed
(Page 2)
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 [2011] WASCSR 145
Director of Public Prosecutions (WA) v Dinah [No 3] [2011] WASC 130
Director of Public Prosecutions (WA) v Dinah [No 4] [2011] WASC 278
(Page 3)
- COMMISSIONER SLEIGHT:
(This decision was delivered orally and has been edited from the transcript).
1 This is an application by the Director of Public Prosecutions (WA) (the DPP) under s 22 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) arising from alleged breaches by Mr Dinah of an amended supervision order that was made on 28 September 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.
2 However, it is clear from submissions presented by counsel appearing for the DPP that the submission of the DPP is that Mr Dinah should be detained in custody for an indefinite term.
3 The relevant history of this matter is set out in a series of decisions earlier by me: Director of Public Prosecutions (WA) v Dinah [No 3] [2011] WASC 130; Director of Public Prosecutions (WA) v Dinah [No 4] [2011] WASC 278 and Director of Public Prosecutions (WA) v Dinah [2011] WASCSR 145.
4 For the purpose of this decision it is unnecessary for me to repeat the history in detail. However, I will set out a brief summary as follows.
5 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, on that date his Honour made a continuing detention order that Mr Dinah be held in custody for an indefinite term.
6 An annual review of the continuing detention order came before me on 9 May 2011. On that date, without opposition from the DPP, I rescinded the existing continuing detention order and made a supervision order. The supervision order contained 31 conditions. One of the conditions was that Mr Dinah was not to use prohibited drugs. Mr Dinah contravened the conditions of the supervision order by using cannabis and was convicted of six offences under s 40A of the Act arising from such contraventions.
7 On 28 September 2011 I heard an application by the DPP for orders under s 23 of the Act arising from the contravention of the supervision order. On that day I made an order for Mr Dinah to be released on the
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- same terms as the supervision order of 9 May 2011 but extended the term so that the five-year period recommenced as from 28 September 2011.
8 The conditions of the supervision order made on 28 September 2011 included the following:
• Condition 1: a requirement to reside continuously at [suppressed];
• Condition 3: a requirement to observe a curfew such that Mr Dinah was to remain at and not leave his approved address between the hours of 10.00 pm and 6.00 am;
• Condition 5: a requirement to submit to electronic monitoring of his compliance with the curfew which included the wearing of an electronic monitoring device upon his body for this purpose;
• Condition 8: a requirement to report to a community corrections officer at times and places as directed; and
• Condition 29: a requirement not to consume alcohol.
9 Today Mr Dinah has pleaded guilty to six offences of contravening the conditions of his supervision order made on 28 September 2011, without reasonable excuse, contrary to s 40A of the Act. Details of the contravening behaviour is set out as follows.
10 On 8 November 2011 electronic monitoring equipment in place at Mr Dinah's approved address to monitor compliance with the curfew conditions recorded that Mr Dinah returned to the address at 10.19 pm, outside the period of the curfew.
11 Mr Dinah spoke by telephone to his supervising community corrections officer, Mr Morton, on 10 November 2011. When asked as to his reason for the late return to the address Mr Dinah falsely stated that he had been late returning on the Pathways program which he attends as part of his supervision order. When advised that the Pathways programme on 8 November 2011 had been cancelled Mr Dinah then stated that he had been late returning with his partner from the cinema at Garden City, Booragoon. Mr Dinah admitted his breach of the curfew in an interview with police on 23 November 2011.
12 On 4 November 2011 community corrections officer, Mr Morton, had directed Mr Dinah to attend for a supervision session with Mr Morton on Wednesday, 9 November 2011 at 3.00 pm. On Wednesday, 9 November 2011 Mr Dinah failed to report as directed or at all. On
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- 10 November 2011 Mr Morton made telephone contact with Mr Dinah and asked for an explanation as to why he had failed to report for supervision on 9 November 2011. Mr Dinah stated that he had been fully compliant with his reporting obligations to that date and this was the first time he had missed an appointment. He further stated in explanation, 'I had other shit to do'.
13 During the telephone call between Mr Morton and Mr Dinah on 10 November 2011, Mr Morton directed Mr Dinah to attend supervision before 5.00 pm that day. Mr Dinah agreed to do so, however Mr Dinah failed to report as directed on 10 November 2011 and he made no attempt to contact Mr Morton to reschedule the appointment or to provide an explanation for his non-attendance.
14 Instead, on 10 November 2011 Mr Dinah and his partner left the Perth metropolitan area and travelled to the Northam area where Mr Dinah remained until he was apprehended by the police on 16 November 2011. As a result of moving to Northam, between Thursday, 10 November 2011 and Wednesday, 16 November 2011 Mr Dinah failed to reside continuously at the address specified in his order and therefore breached the residential condition of the order.
15 On 10 November 2011 at a location near Fremantle Hospital, Mr Dinah cut off the electronic anklet used to monitor his compliance with the curfew condition, thereby damaging it. Mr Dinah, or his partner with Mr Dinah's knowledge, disposed of the damaged anklet into a bin. Mr Dinah did not inform the authorities of his disposal of the anklet until after his apprehension on 16 November 2011 and the delay thereby making recovery of the anklet by authorities impossible.
16 Mr Dinah in a police interview on 23 November 2011 explained his behaviour on the basis that he had become stressed by Mr Morton warning him on 10 November 2011 that Mr Dinah might go back to prison for breaching his supervision order. It is said that the prospect of this caused Mr Dinah to behave in the manner that I have earlier described.
17 On 16 November 2011 Mr Dinah and his partner were recorded on camera entering a liquor store in Northam and leaving with four cans of pre-mixed bourbon whisky. After his arrest on 16 November 2011 Mr Dinah underwent a breath analyst test at the Northam police station and gave a reading of 0.05% blood alcohol. Mr Dinah admitted at the time of his arrest that he had drunk alcohol earlier that afternoon.
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18 On 22 November 2011 I made an order that Mr Dinah undergo examination by a psychiatrist, Dr Gosia Wojnarowska, pursuant to s 23A(1) of the Act. A report dated 14 January 2012 has been produced by Dr Wojnarowska pursuant to this order. The report concludes as follows:
Despite multiple therapeutic interventions and supports which Mr Dinah has received since his release, he reoffended by contravening his Orders on numerous occasions. He has also continued to deflect personal responsibility and his future plans are fluid, lacking details and commitment. Mr Dinah's risk of reoffending is assessed as higher on Manageability item since his last review. He remains at high risk of sexual and generalist reoffending and in my opinion, the treatment that has been offered is not likely to significantly decrease this risk as it is closely associated with his strong antisocial personality characteristics which are not amenable to treatment. Engagement with programs however is still advisable should he be released to the community. This provides him with structure and offers an opportunity to monitor his whereabouts and his mental state. In my opinion a reduction in his risk of reoffending could only be based on strict monitoring and supervision rather than offering treatment which are not likely to alter his personality style significantly.
19 I have also received a community supervision assessment report dated 12 January 2012. This report states as follows:
He acknowledged full culpability for the various omissions that resulted in his eventual return to custody. Mr Dinah recalled that when he breached is curfew on 8/11/2011 he 'panicked' fearing that he would be immediately arrested and imprisoned. Mr Dinah accepted that in hindsight he was behaviour irrationally. He agreed that he should have dealt with the contravention by attending this served as directed rather than choosing to abscond. Mr Dinah believed that his non compliance was also affected by his feelings of stress and anxiety, which he attributed to not coping with his partner's pregnancy. Mr Dinah also mentioned feeling 'pressured' to comply with the DSO Order. Mr Dinah disclosed that the combined impact of these factors resulted in him feeling as though he could no longer cope with his order and he subsequently chose to abscond to Northam.
20 The report goes on to provide reasonably favourable comments concerning Mr Dinah's attendance for supervision, drug testing and counselling during the supervision order. However, the report indicates that there are likely to be significant problems in obtaining Mr Dinah accommodation if he is again released into the community. Mr Dinah no longer has a relationship with his pregnant partner and he also says that he has disconnected with his family since his return to prison.
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21 The DPP called Mr Morton, Mr Dinah's supervising community corrections officer, to give evidence in support of the application by the DPP. Mr Morton stated in cross-examination that at supervision meetings Mr Dinah reacted well and for some significant period complied with the supervision conditions of the order. However, Mr Morton stated that he could not envisage what further support could be provided to ensure that Mr Dinah complied with all conditions of the supervision order. Mr Morton did acknowledge that perhaps daily monitoring or greater supervision might be of assistance. However, I conclude from his evidence that notwithstanding greater supervision, it could not be guaranteed that Mr Dinah would comply.
22 Notwithstanding some encouraging compliance with the conditions of the supervision orders made on 9 May 2011 and 28 September 2011, I conclude that Mr Dinah has generally demonstrated difficulty in complying with the conditions under a supervision order. This is evident from the offences committed by Mr Dinah. Prior to the orders I made on 28 September 2011 extending the supervision order, I had received a psychological progress report from Ms Tina Marley which indicated that compliance with conditions of a supervision order was going to present significant challenges for Mr Dinah and that it was important that it be made clear to Mr Dinah the consequences of noncompliance.
23 Partly for the purpose of making it clear to Mr Dinah the consequences of noncompliance with the conditions of a supervision order, I imposed a suspended period of imprisonment of 6 months and 1 day in relation to breaches of the order of 9 May 2011. Notwithstanding giving Mr Dinah a further opportunity by the supervision order on 28 September 2011 and notwithstanding the suspended terms of imprisonment, Mr Dinah, within a relatively short period, has demonstrated an inability or an unwillingness to comply with the conditions of the supervision order.
24 As evident by his convictions, Mr Dinah has contravened conditions of the supervision order made by me on 28 September 2011. These breaches I consider to be serious breaches. Further, I am satisfied from the material before me that there is an unacceptable risk that if an order is not made that he be detained in custody for an indefinite term for control, care or treatment, then he will commit a serious sexual offence. I am not satisfied that Mr Dinah will comply with any continuing supervision order or that such an order will adequately protect the community.
(Page 8)
25 Accordingly, I make an order rescinding the supervision order made on 28 September 2011 and make an order that Mr Dinah be detained in custody for an indefinite term.
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