Director of Public Prosecutions (WA) v Free
[2010] WASC 255
•17 SEPTEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- FREE [2010] WASC 255
CORAM: McKECHNIE J
HEARD: 27 AUGUST 2010
DELIVERED : 17 SEPTEMBER 2010
FILE NO/S: MCS 49 of 2010
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
LESLIE FRED FREE
Respondent
Catchwords:
Dangerous Sexual Offenders Act preliminary hearing whether reasonable grounds for belief that an order might be made
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 14
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant: Mr T B L Scutt
Respondent: Mr D S Hunter
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Legal Aid (WA)
Case(s) referred to in judgment(s):
Free v The State of Western Australia [2006] WASCA 259
George v Rockett (1990) 170 CLR 104
Parker v Churchill (1985) 9 FCR 316
McKECHNIE J:
What this application is about
This application for orders under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) s 14 is supported by an affidavit of Mr Scutt which outlines the history of the matter, and a report of Dr Yewers, a counselling psychologist within the Clinical Governance Unit of the Department of Corrective Services. The application asks for orders sending the matter on to a hearing to decide if the respondent is a serious danger to the community and, if so, whether a detention or a supervision order should be made.
The application is opposed by the respondent, who also swore an affidavit detailing, among other things, his efforts to complete rehabilitation courses in prison.
The evidence put forward by the applicant fails to establish reasonable grounds for belief that a detention or supervision order might be made so the application is dismissed.
The threshold test: reasonable grounds for belief: s 14
An order should be made if there are reasonable grounds for belief that a court might find the respondent is a serious danger to the community. 'Reasonable grounds for belief' are words of general application. They most commonly arise in three situations.
One is the state of mind of an official who is then empowered to act. Examples are the power to arrest and the power to issue warrants.
Next is the state of mind of an accused person who is then permitted to respond to action against them in a manner which will relieve criminal responsibility.
The third is a general state of mind before a person must act or decline to act, such as a company director, state of mind of the accounts of the company.
The context where the expression is found is important. Here the context is not a supervisory function of a court in respect of an administrative act, or the ascertainment of criminal responsibility. The decision to declare that a person is a dangerous sexual offender is exercised by a judge who may be presumed to be knowledgeable as to the law and the workings of the DSO Act. It is a check on the power of the executive in the same way that Burchett J acknowledged in Parker v Churchill (1985) 9 FCR 316:
The duty, which the Justice of the Peace must perform in respect of an information, is not some quaint ritual of the law, requiring a perfunctory scanning of the right formal phrases, perceived but not considered, and followed by simply an inevitable signature. What is required by the law is that the Justice of the Peace should stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.
The decision a judge makes on a preliminary hearing is the first step in a process which might lead to the indefinite detention of a citizen following the conclusion of a sentence of imprisonment on the grounds that they are an unacceptable risk to the community.
A judge does not have to be satisfied that an order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. 'Might' is an unusual word to use in the circumstances, being the past tense of 'may', yet describing an event that could occur in the future, not the past. 'May' means a possibility.
It is not helpful to speak of the test at a preliminary hearing as a low threshold or any other description. The words mean what they say, and the belief of the judge must be grounded in fact and must acknowledge that a judge is exercising a judicial, not administrative power, and so is permitted to bring scrutiny to the possibility of a detention or supervision order being made. At a preliminary hearing a judge must have a belief in the possibility the later court will be satisfied to a high degree of probability that a person is a serious danger to the community. It is a threshold that must be crossed before a judge can appoint psychiatrists to undertake an evaluation.
The phrase 'Reasonable grounds of belief' has been the subject of judicial interpretation. In George v Rockett (1990) 170 CLR 104:
When a statute prescribes that there must be 'reasonable grounds' for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
Further on:
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
The principle to be extracted is that there must be sufficient facts or circumstances to ground in reason an inclination towards the proposition under review.
Facts to ground belief: the evidence
The respondent is aged 39, born on 5 April 1961. His first offence was recorded in 1979, which was driving in excess of .08%. This was followed by sporadic offending until 1992, all driving offences apart from one possession of liquor on a sports ground. In April 1992, the respondent was convicted of attempted stealing and being on the curtilage without lawful excuse, for which he was fined. A further driving in excess of .08% followed in 1997, then a series of dishonesty offences in 1998, 1999 and 2005.
Until the offences dealt with in the District Court on 29 November 2005, the respondent had no overt sexual offending record. The conviction of being unlawfully on the premises on 20 April 2004 was for an incident that occurred on 14 November 2003, when he was seen looking at three fully clothed teenage girls through the window of a cabin in the caravan park where he was residing. When interviewed by police, he admitted that he was waiting for the girls to get undressed. I will treat this as an offence with sexual overtones.
The sexual offences
These are the offences for which the respondent was imprisoned and form the basis for the application. A 'serious sexual offence', is a sexual offence, the maximum penalty for which is 7 years or more.
The respondent was convicted of two counts of indecent assault with a circumstance of aggravation under the Criminal Code s 324, serious sexual offences.
He was convicted of one count of indecent assault under s 323 and one count of unlawful detention under s 333, not serious sexual offences.
There were three occasions of offending. On 14 May 2005, the respondent unlawfully and indecently assaulted the first victim. In brief, while she was alone, he held her down, threatened to kill her if she did not comply. He sucked each of her breasts.
Shortly thereafter, on 4 June 2005, he threatened to kill the second victim, and indecently assaulted her by placing his hands on her breasts, and on her vagina, on each occasion on the outside of her clothing.
On the third occasion, on 17 September 2005, he detained the third victim and unlawfully and indecently assaulted her by placing his hand on her vagina, again outside of her clothing.
He was sentenced to a combined term of 6 years and 4 months with a parole eligibility order. He appealed against that sentence, and on 28 November 2006, the Court of Appeal allowed his appeal and substituted a total sentence of 5 years' imprisonment: Free v The State of Western Australia [2006] WASCA 259.
In concluding that the sentence was manifestly excessive, McLure JA (Steytler P and Wheeler JA agreeing), said:
The appellant's actual (as distinct from threatened) sexual misconduct is at the low end of the scale of seriousness of crimes of that type and in some respects is atypical, perhaps reflecting his unfortunate life circumstances. He accepts he has a problem and is willing to participate in specialist sex offender treatment. He had not previously committed an offence that warranted a term of imprisonment, had co-operated with police in volunteering information about offences with which he had not been charged and pleaded guilty to the offences [18].
In considering the threshold test it is helpful to refer to the DSO Act s 7 as this section will guide a judge at a full hearing.
Psychiatric report: Dangerous Sexual Offenders Act s 7(3)(a)
The respondent was seen by Dr Kemp, a consultant psychiatrist, on 24 October 2005, prior to sentence, and reviewed by Dr Kemp on 8 June 2009. In 2005, Dr Kemp's psychiatric opinion was that the respondent suffered from a depressive disorder which is currently under good control whilst treated with antidepressant medication. He noted that the respondent also has problems with long‑standing alcohol abuse. In his report of 8 June 2009, Dr Kemp noted that the respondent reported that his mood is completely stable, that he is feeling quite positive and cheerful. He denied any depressive symptoms and continues to be maintained on medication.
Psychological reports: Dangerous Sexual Offenders Act s 7(3)(b)
On 15 November 2005, again before sentence, a forensic psychologist, Ms Kirstin Bouse, provided a report. She noted that the respondent had extensive treatment needs, and in the absence of adequately addressing and resolving these issues, his risk of reoffending in a similar manner was assessed at being medium to high. His offending attitude suggests he would benefit from engaging in treatment. She concluded:
During interview Mr Free acknowledged full responsibility for the sexual offences against 3 women. However he denied having perpetrated any acts of theft during the commission of these offences. In relation to the sexual offences, the precursors and the events themselves appear strikingly similar. That is, Mr Free reported having been extremely depressed due to pain (resulting from injury), unemployment, death of his father and apparent repeated rejection from women. In addition to this, Mr Free claimed to have increased his alcohol consumption such that he was intoxicated most days for the past few years. Finally, Mr Free reported that he had increasingly used erotic literature depicting sexualised violence in his masturbatory behaviours.
In light of these factors, Mr Free is assessed as requiring specialised sex offender treatment to address all domains identified as extremely relevant to sexual offending (and in Mr Free's case, his overall wellbeing) with those being; his sexual interests/behaviours, distorted attitudes, social/emotional functioning and capacity for self‑management. Without the benefit of engaging in such treatment, Mr Free is assessed as presenting a medium‑high risk of reoffence with a 3 in 10 chance of sexual reoffending in the next 5 years.
On 18 May 2010 Dr Tara Yewers, a counselling psychologist within the Clinical Governance Unit of the Department of Corrective Services provided a sex offender risk update report. It does not appear that Dr Yewers conducted a formal assessment of the respondent. Rather, her report was based on a review of information from Mr Free's prison programme file, offender in custody file, and community justice file. Her report cannot be regarded as a psychological report.
Information indicating whether or not the person has a propensity to commit serious sexual offences in the future: Dangerous Sexual Offenders Act s 7(3)(c)
There is no information to suggest that the respondent has a propensity towards sexual offences. Rather, the remarks on sentencing on appeal, and by Ms Bouse, suggests that the offences occurred because of the particular triggers in the respondent's life at that stage, including depression.
Whether there is any pattern of offending behaviour on the part of the person: Dangerous Sexual Offenders Act s 7(3)(d)
Clearly there is a pattern of offending. The three offences which occurred over a short time were markedly similar in their execution and motivation.
The respondent's efforts to address the cause of his offending behaviour: Dangerous Sexual Offenders Act s 7(3)(e)
In the course of the second reading speech introducing the Dangerous Sexual Offenders Bill the Attorney General, Mr McGinty said:
If the person under sentence of imprisonment is in custody, the application cannot be made unless there is a possibility that the person might be released from custody within the period of six months after the application is made. This is to ensure that the person is able to take full advantage of any opportunities for rehabilitation offered during the term of imprisonment and orders are not applied for prematurely.
It has been acknowledged all along that the respondent needs to undertake treatment for his sexual behaviour. Ms Bouse noted it, the sentencing judge referred to it, McLure JA commented that the respondent was willing to participate in specialist sex offender treatment.
Eventually the respondent did participate in a sex offender treatment programme (SOTP). I will turn to the result of that shortly. But in assessing effort by him to address his offending behaviour, it is clear that he has wished to participate in a programme, but in the main has been denied the opportunity for reasons beyond his control.
On 23 February 2007, his individual management plan (IMP) noted, 'Free is scheduled to participate in an intensive SOTP in Q 1 2008 at Bunbury Prison'. On 16 August 2007, the IMP was reviewed. Under 'main intervention needs', it is noted:
Comments
The treatment assessments conducted on 04/01/2008 recommended that Free undertake a cognitive skills course, a managing anger and substance course, use course and an intensive sex offender treatment programme.
The cognitive skills course is not currently provided to prisoners convicted of sex offences. The managing anger and substance abuse course is no longer provided by the department.
Free is currently scheduled to undertake an intensive sex offender treatment programme at Bunbury Prison in 2008.
The IMP review of 4 March 2008 was in similar terms.
The respondent, in the event, did not obtain a place in the Intensive Sex Offenders Treatment Programme (ISOTP) in 2008. This is explained in an IMP review of 16 October 2008:
Free was originally scheduled to participate in an intensive sex offender treatment program at Bunbury Prison in Q 1 2009. This was cancelled due to him being rebooked in an earlier program in 2008. This program was subsequently cancelled. There are no further SOTP programs available prior to Free's EDR 26/09/10.
Because he had not participated in the ISOTP, parole was refused.
The respondent was offered a programme in Karnet prison which he had to decline. It meant a move from Bunbury where his mother lives. She is his only regular visitor. His mother is 74, not well, and unable to drive more than 15 kilometres.
From all the available material, including a letter sent by the respondent to the Waraminda Intensive Interventions Branch, seeking help to enrol in an ISOTP in the private sector, I am satisfied that the respondent genuinely and actively tried to participate in a programme that would rehabilitate him, but was frustrated in his efforts because of the unavailability of such a programme. In turn, that meant his parole was deferred, leaving a situation where, unless he is declared a dangerous sex offender, he will be released at the end of his imprisonment without any supervision whatever. That is unfortunate. However, the DSO Act is not designed to remedy deficiencies in delivery of services. Unless there are grounds for reasonable belief that a court might declare the respondent to be a dangerous sexual offender, the sole consequence that the respondent would be released unsupervised cannot tip the scales.
Participation in intensive sex offender treatment programme (ISOTP)
The respondent completed an ISOTP which began on 31 August 2009 and concluded on 9 April 2010. The report stated:
In summary, he met most program objectives, made some treatment gains, was observed to gain a greater understanding of the factors underlying his offending, and demonstrated greater acceptance of responsibility for his behaviour. During the program Mr Free was afforded the opportunity to develop a self management plan, which is a plan to develop a balanced lifestyle by setting pro‑social goals in a range of areas. Overall, Mr Free's self management plan appears appropriate, should he choose to implement it as planned. It is suggested that his self management plan could be further strengthened by additional support in the areas of substance use, coping and emotion management, balanced lifestyle, self esteem building and communication and relationships.
The report also drew attention to his use of alcohol. The report described his participation in the programme as appropriate, and noted that he demonstrated willingness to discuss issues. It noted that his self‑management plan 'appears appropriate should he choose to implement it as planned'.
In summary, the need for participation in a ISOTP was identified early and acknowledged by the respondent. He has now undertaken the course, meeting most of the programme's objectives.
STATIC-99
The respondent's risk has been assessed by psychologists using STATIC‑99 risk assessment, a tool not yet validated in Australia. Dr Yewers explained it in this way:
The STATIC‑99 is an internationally recognised risk assessment measure that combined ten static (unchanging) risk factors that have been shown to be associated with increased risk of re‑offence and has been used to estimate Mr Free's risk of sexual reoffending. Mr Free's STATIC‑99 score places him in the 'high' risk category. Based on a sample of sex offenders from Canada and the UK upon which the STATIC‑99 was developed, individuals with these characteristics, on average, reoffend at 39% over five years and at 45% over ten years.
Neither Ms Bouse in her report of 15 November 2005 nor Dr Yewers in her report of 18 May 2010 explain how they scored the respondent under STATIC‑99. Unexplained therefore are their different results. Ms Bouse's assessment of risk:
Mr Free's Static 99 score places him in the medium‑high risk category. Based on a sample of sex offenders from Canada and the UK upon which the Static 99 was developed, this suggests that Mr Free has a 3 in 10 chance of sexual re-offending within a 5‑year period.
Dr Yewer's report under 'Risk of Re‑offence' in her affidavit:
Mr Free's STATIC‑99 score places in the 'high' risk category. Based on a sample of sex offenders from Canada and the UK upon which the STATIC‑99 was developed, individuals with these characteristics, on average, reoffend at 39% over five years and at 45% over ten years.
Dr Yewer's conclusion that the respondent's risk of re‑offending over a five year period is nearly 10% more than Ms Bouse's conclusion over the same time span is unexplained in the evidence. There is no reason on the evidence why I should reject Ms Bouse's assessment of 'medium ‑ high' risk or accept in preference Dr Yewer's assessment of 'high' risk.
This application highlights the limitations of STATIC‑99. The STATIC‑99 score is coded and immutable. The respondent will remain at a statistical high risk of offending under STATIC‑99, no matter what interventions occur and how much he changes his lifestyle, because it takes no account of dynamic factors. Yet there are other predictive measures of more or less validity which do attempt to take account of dynamic factors and changes. Taking into account dynamic factors accords not only with commonsense, but legal experience. Any judge who engages in sentencing offenders undertakes some prediction of risk as part of the sentencing process, and does so against a background of principle and experience which suggests that, for example, many young people mature and grow out of crime. Others forsake illicit substances and alcohol and the criminal lifestyle that accompanied them. For some, a period of imprisonment has an actual deterrent effect.
It is no answer, as the applicant suggests, that if the application is granted, the respondent will be assessed by two psychiatrists who may well conduct a dynamic assessment such as HCR 20 or RSVP, because the application must be judged on the material presently available to ascertain whether these are reasonable grounds for belief that an order might be made. Only if those grounds are established in evidence is a judge empowered to order psychiatric examination.
Uncritical acceptance of the STATIC‑99 score also negates the whole purpose of an ISOTP. If the programme, to which significant resources are given, has no effect on the risk that participants might then pose to the community, why does the Department of Corrective Services bother with it? The respondent put before me an extract from a book, Forensic Psychology and Criminology: An Australian Perspective. It seems to be a textbook. It indicates that much research remains to be done in the area, but page 98 notes:
[R]esearch suggests that treatment for sexual offenders is frequently, but not always, effective and that cognitive behavioural treatment in a group setting is the best form of psychological intervention.
In the present case, I am unable to accept uncritically the risk assessment undertaken by coding the STATIC‑99 score, because of earlier reports suggesting the possibility of effective treatment through an ISOTP, coupled with the respondent's actual performance on the programme. There is also the unexplained difference in the respondent's score.
Summary
I am satisfied that the respondent made every effort he could to address his offending behaviour. This commenced indeed with his letter to his judge, as at least a first step, acknowledging his responsibility and continued through his efforts to obtain treatment. The participation in the course, on the basis of the report, has had a positive effect on him. His antecedents are not, in the main, for sexual offences, apart from one, and disclose a real problem with drink and dishonesty. But there is nothing that would particularly indicate further sexual offending, apart from the common theme of alcohol that the respondent has acknowledged is a problem for him.
Conclusion
In the course of his reply to the debate on the Bill Mr McGinty said:
It is also important to bear in mind that this legislation is aimed at the worst class of offender. Usually when a person commits an offence, the courts impose a sentence and, once he has done his time, the offender is considered to have paid his debt to society. That is the general approach. This legislation departs significantly from the general approach and deals with those people - they are small in number - who should not be released because they pose a risk to the safety of the entire community.
The respondent is a 49‑year‑old man who, at the age of 44, while lonely, depressed and intoxicated, committed a pattern of three assaults on women for sexual purposes, and while the assaults were terrifying and violent they were not, as has been held, of the worst type of their kind. He has maintained a low profile as a prisoner and tried to rehabilitate himself through courses which were denied to him, until he successfully completed the ISOTP.
It seems that the main force behind the application is the high risk assessment under STATIC‑99 which, for the reasons I have explained, is of very limited value in these circumstances, failing, as it does, to take account of dynamic effect. In order for me to believe that the court might find that the respondent is a serious danger to the community there must be reasonable grounds to found that belief. Having regard to the purpose of the DSO Act, on the evidence presented to me, there are no reasonable grounds.
The application is dismissed.
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