Director of Public Prosecutions (WA) v Hart [No 3]
[2010] WASC 253
•1 SEPTEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- HART [No 3] [2010] WASC 253
CORAM: McKECHNIE J
HEARD: 30 APRIL, 12, 27 AUGUST & 1 SEPTEMBER 2010
DELIVERED : 1 SEPTEMBER 2010
FILE NO/S: MCS 21 of 2007
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
DARREN MORTON HART
Respondent
Catchwords:
Dangerous sex offender - Whether to be released on supervision or detention - Factors to be taken into account - Suppression of offender's name and address - Principles of open justice
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Release on supervision subject to conditions
Category: B
Representation:
Counsel:
Applicant: Mr D Dempster
Respondent: Mr D J McKenzie
West Australian Newspapers Ltd : Mr A V McCarthy
Channel Seven Perth Pty Ltd : Mr J D McLaurin
Prime Media Group Ltd : Mr J D McLaurin
Solicitors:
Applicant: Director of Public Prosecutions
(WA)
Respondent: David John McKenzie
West Australian Newspapers Ltd : West Australian Newspapers Ltd
Channel Seven Perth Pty Ltd : Edwards Wallace Lawyers
Prime Media Group Ltd : Edwards Wallace Lawyers
Case(s) referred to in judgment(s):
Prisoners Review Board v Freeman (No 2) [2010] WASCA 167
State of Western Australia v Hart (No 2) [2009] WASC 121
State of Western Australia v Hart [2008] WASC 43
West Australian Newspapers Ltd v State of Western Australia [2010] WASCA 10
McKECHNIE J: The background to this review is that on 20 March 2008 Murray J declared that the respondent was a dangerous sexual offender and made an order for his continuing detention: State of Western Australia v Hart [2008] WASC 43. On the first annual review on 29 April 2009, Hasluck J did not rescind the detention order: State of Western Australia v Hart (No 2) [2009] WASC 121. The second annual review was listed for 30 April 2010.
Prior to that an order was made for the respondent to be examined by Dr Wojnarowska. Her report, together with other reports, were tendered on 30 April 2010 and Dr Wojnarowska gave evidence expanding on her earlier report. At the conclusion of the hearing the parties agreed there were some issues which remained outstanding; in particular the question of accommodation and recommencement of anti‑libidinal medication. In order to deal with those matters, the application was adjourned until 12 August 2010. On that day the parties agreed that the application be further adjourned until 27 August 2010 to enable the respondent to undertake an abdominal ultrasound and other tests to determine his physical suitability to his anti‑libidinal medication. On 27 August 2010 the state tendered a report from the senior medical officer indicating there was no barrier to recommencing anti‑libidinal medication.
At the hearing on 27 August 2010 the State applied for a suppression order suppressing both the respondent's name and his address from publication. I made a temporary order and adjourned the matter until today and directed that the court's manager of media and public relations advise media companies that they may appear and make submissions on 1 September. Channel Seven Perth Pty Ltd, Prime Media Group Ltd and the West Australian Newspapers Ltd have done so this morning through counsel.
The first issue: Is the respondent a serious danger to the community?
The answer is yes. Counsel for the respondent conceded this was so and that concession is well made. It is unnecessary to set out the various psychiatric and psychological assessments that have been done over the years, including for this review. It is sufficient to note that the respondent remains at high risk of reoffending unless detained or released under strict supervision.
The second issue: Should the detention order be rescinded and a supervision order made?
The answer is yes. During the past year the respondent has made significant gains. In Dr Wojnarowska's opinion, while the respondent still presents with significant treatment needs his risk of reoffending, although elevated, could be managed in the community if adequate resources are allocated. Importantly, in her opinion:
If the Continuous Detention Order is imposed there is a strong possibility that the treatment gains which he has achieved during ISOTP would be lost. It is also likely that further incarceration will increase his risk of reoffending due to further institutionalisation and lack of opportunity to develop skills which are protective in recidivism. Further imprisonment is also likely to increase his negative attitudes such as mistrust which would hamper his ability to engage in psychological treatment.
Dr Wojnarowska's opinion, which I accept, conforming as it does to the other evidence tendered, is predicated on satisfactory resolution of three areas.
Continuous psychological support.
Dr Tamarla Capel, a very experienced forensic psychologist, has been providing individual counselling sessions with the respondent for some time. Counselling has also been provided by Mr David Summerton. Dr Capel advises that a DSO psychologist will continue to case manage the respondent's intervention and management needs and individual sessions will also be held as necessary. Individual counselling sessions with the DSO psychologist would be provided to assist him manage his transition to the community and also to address ongoing treatment needs.
On the basis of this evidence I am satisfied that one important aspect, namely, continuous counselling, will be provided.
Anti‑libidinal medication
That is not a scientific term but a term which covers a variety of treatments which can be tailor‑made to lower a person's libido. The respondent was on anti‑libidinal medication and has expressed a willingness to return to that regime. As noted earlier, he is assessed as medically capable. There is a doctor in the town near the proposed release address who is prepared to monitor treatment and prescribed medication. I am satisfied that a requirement to remain on anti‑libidinal medication within a supervision order, together with other conditions, will mitigate the risk to some extent.
Proposed accommodation
Accommodation is one of the key issues for judges considering whether to make a supervision order for a dangerous sexual offender. A stable, supportive environment will do much to mitigate the risk of reoffending. However, the reality is that few dangerous sexual offenders have the prospect of such accommodation. In most cases they have been in prison for many years. The respondent is a case in point. Their family connections are usually strained or non-existent. Moreover, it is expecting a great deal for a family member or charitable stranger to undertake a supervisory role if necessary.
Furthermore, voluntary prisoner after‑care services are already overworked and have difficulty in placing ordinary offenders, let alone those with intensive needs. A solution which has been mentioned before may be a properly staffed secure institution enabling a staged reintegration into society, together with intensive counselling services. The government does not provide such a facility. In the absence of such a facility, when a supervision order is made a dangerous sex offender will inevitably be returned into someone's community. Undoubtedly, there is a risk posed by such a course.
The Dangerous Sexual Offenders Act 2006 (WA) requires a judge to assess whether the risk of returning a dangerous sex offender to the community under very strict supervision requirements is 'unacceptable' - to use the terminology in the Act - having regard to the need to ensure adequate protection of the community. The accommodation proposed is with the respondent's sister. At the hearing in April it was obvious that the accommodation was then unsuitable because I was not satisfied that the sister had an adequate understanding of what was involved. Since then I have received a further report from Dr Capel and a further report from the case work supervisor. I note also that the respondent has continued counselling sessions with Mr Summerton focused on identifying potential high risk situations, triggers and strategy for managing issues.
The respondent's sister has been educated regarding the respondent's risk factors and his supervisory conditions. She has agreed to support his order and the conditions and to engage with the Department of Corrective Services' staff involved in his management. In addition, she has been provided with information about community reintegration issues that have an impact on long term prisoners. She has agreed to support the respondent with practical assistance when necessary and to organise other family members to assist him. The case work supervisor has noted that the sister may find it difficult to provide the level of support that is anticipated and initial efforts have been made to provide further support by way of a mentor.
The question is not whether the accommodation is adequate or even if it is the best available. The overriding consideration is the protection of the community. Important though it is, accommodation is but one feature of supervision. The minute of proposed orders in respect of supervision has been agreed by the respondent through his counsel. It is particularly onerous and includes a curfew requirement and an opportunity for regular police oversight among many other conditions. It will exist for a period of 10 years. In all the circumstances, I am satisfied that the offender is an acceptable risk to be managed in the community under strict supervision. I use the words 'acceptable risk' as a term of law; that is, the words in the Act.
The alternative is a very real prospect the gains that have been made over the last few years will evaporate as predicted by Dr Wojnarowska and the respondent will never again attain a level of insight to justify a release on supervision, thereby effectively condemning him to imprisonment for life, which was not the term of imprisonment imposed for the offences which he committed. It is to be remembered that the Dangerous Sexual Offenders Act is predictive in nature. I therefore declare that the respondent remains a dangerous sexual offender. I order that he be released on supervision, in terms of the conditions in the minute of proposed orders submitted by the applicant.
Application for suppression
The DPP applies for suppression of the name and proposed address of the respondent if released under supervision. In support of that application, I have received, without objection, a statement from Detective Sergeant King, attached to the Sex Offender Management Squad (SOMS). SOMS is responsible for the coordination and/or management of the Western Australian Police commitment to the Australian National Child Offender Register (ANCOR) and compliance with ANCOR reportable offenders and dangerous sex offenders. He sets out his qualifications and experience which I accept and says:
12.Based on my experience with other cases dealt with at SOMS, it is my view that should the public become aware of Mr Hart's identity and address and he was to be released into the community, police would not be in a position to adequately case manage him or guarantee his safety and security or that of the community.
13.A further risk is that he could abscond and remain at large through fear for his safety.
14.Should he abscond, neither SOMS nor his Community Corrections Officer would be able to stop him from engaging in high risk behaviour.
15.It has come to my attention that two of Mr HART's victims have spoken with a regional medial outlet and have disclosed his identity and the city in which it proposed that he live.
16.Given that disclosure, it is imperative that his address be suppressed, as any medial coverage of Mr HART is likely to enrage local residents and place him in danger. Further, medial and local resentment towards him is likely to increase his risk and therefore make case management and mitigation of that risk more difficult, if not impossible.
The principle of open justice
The principles of open justice are well settled and do not require further repetition. The Prisoners Review Board v Freeman (No 2) [2010] WASCA 167 [8], [9]; West Australian Newspapers Ltd v State of Western Australia [2010] WASCA 10 [30]. As in the case of Freeman, there is no direct evidence before the court of adverse consequences if the name and address are published. This is necessarily so as Detective Sergeant King has made a prediction based on his experience. Prediction is familiar territory to any judge dealing with an application under the Dangerous Sexual Offenders Act.
The Act is all about prediction, given that the offender has already served a sentence imposed for their past crimes. I accept that the predictive outcomes outlined by Detective Sergeant King are reasonable and may happen. It is an aspect of the public interest. It is clearly in the public interest that the respondent has the best possible opportunity to succeed in remaining offence free. There are two other important public interest considerations.
The first is the principle of open justice, which has been explained eloquently in the cases to which I have referred. It is no light thing to restrict publication of any part of court proceedings. The second aspect to public interest is the interest in those members of the community living in the area where the respondent may be released. As I have just remarked, proceedings under the Dangerous Sexual Offenders Act are entirely predictive in nature. After hearing evidence, a court predicts that an offender may pose an unacceptable risk to the community unless detained or released under supervision. As here, a court predicts that release of a dangerous sexual offender under supervision, while a risk to the community, is an acceptable risk, balancing everything that the Act requires.
Unlike traditional judicial proceedings, which in the main look back in time and find facts as to previous transactions, civil or criminal, a judge hearing a dangerous sexual offender application is gazing into the future, making predictions that may or may not turn out to be right. The exercise lacks the certainty and exactitude of fact-finding involving past transactions. Therefore, there is a strong public interest that the community into which a dangerous sexual offender will be released is aware of his identity and his presence so that vulnerable members of the community may make up their own minds as to what precautions they might want to take as to their own safety.
For those reasons, I am satisfied that neither Mr Hart's name nor the location of the town to which he will be released should be suppressed. There are, however, different considerations in respect to his actual address. This is his sister's house and she lives there with others. She is prepared to take on the added responsibility of her brother. The matters to which Detective Sergeant King has made reference are also relevant in the nature of the address. While there is a keen public interest in the address being unsuppressed, as against that, there is the likely effect of a person who is not any party to these proceedings and the matters referred to in Detective Sergeant King's statement, particularly at par 16, which might find expression at the house.
It is, I think, in respect of the address where the balance swings in favour of suppression of the actual street address in favour of the possibility of rehabilitation, which is in everyone's interests. Balancing these considerations, I conclude there should be a suppression of the unit and street name of the respondent's proposed accommodation. I will make a suppression order to that extent and no further and give general liberty to apply.
Supervision order made 1 September 2010
The Court, having found pursuant to s 33(2)(b) of the Dangerous Sexual Offenders Act 2006 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 ten (10) years, on the following conditions:
The Respondent must:
Residence
1.Take up residence at [suppressed], Bunbury 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');
2.At no time be within the 60 km per hour zone of the township of Collie without the prior approval of the CCO;
3.Not leave or remain out of the State of Western Australia without the permission of the CCO, and where such permission is granted, to abide by any conditions imposed on that permission during the period of absence from the State;
Curfew
4.Be subject to a curfew, which may be varied from time to time as directed by the CCO, such that he is to remain at and not to leave his approved address between the hours of 10.00 pm and 6.00 am. 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.
5.When subject to a curfew under this order, present himself for inspection at the front door or curtilage 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;
6.When subject to a curfew under this order, submit, if requested by the 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 s 75 and s 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
7.Report to the CCO at Bunbury Community Justice Services, 3rd Floor, 65 Wittenoom Street, Bunbury within 24 hours of his release from custody under this order, and thereupon advise the CCO of his current name and address;
8.Thereupon be under the supervision of a CCO, and when so supervised, to comply with the same requirements set out in s 76 of the Sentence Administration Act 2003 that offenders must comply with under that section;
9.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;
10.Notify the CCO of any change of his name at least 2 working days before the change is due to happen;
11.Not to change address, commence or change employment without the prior approval of the CCO;
Attendance at programs, compliance with medical treatment
12.Engage, including engage in one on one counselling, with any psychiatrist, psychologist, mentor, support service, support person and/or accommodation provider nominated by the CCO, as directed by the CCO;
13.Attend programmes to address his offending behaviour as directed by a CCO;
14.Undergo medical testing or treatment, including anti-depressant medication and anti‑libidinal treatment, as directed by the CCO in consultation with any doctor, psychiatrist or endocrinologist;
15.Take any medication prescribed;
16.Comply with any medication regime as required;
17.Give permission to any medical practitioner, psychiatrist or endocrinologist to disclose to the CCO details of medical treatment and opinion as to the risk of re‑offending if the CCO makes a written request for such information.
Reporting to WA Police
18.Report to the Officer‑in‑Charge of the Bunbury Police Station on the morning of the first weekday following the day of his first release from custody, and thereafter report to and 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;
19.Thereafter comply with all obligations imposed on him pursuant to the Community Protection (Offender Reporting) Act 2004, should any order under that Act be made in respect him;
20.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;
21.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
22.Agree to the exchange of information between persons and agencies involved in his supervision, including otherwise confidential information;
23.Allow the 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;
Restrictions on contact with victims
24.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
25.Not commit any sexual offence, as defined in the Evidence Act 1906 s 36A;
26.Not commit any offence under s 202, s 203, s 204, s 204A, or s 557K Criminal Code 1913 (WA);
27.Not commit any offence under either s 70A or s 401 Criminal Code 1913 (WA) where the place involved in the offence is either a place ordinarily used for human habitation, or a place ordinarily occupied by children;
28.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;
29.Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA);
30.Not possess, consume or use any illicit drugs or substances including, but not limited to, cannabis;
31.Attend for, and submit to, urinalysis or other testing for illicit drugs or substances as directed by the CCO or by a police officer;
32.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
33.Not associate with any person known by him to have committed a sexual offence, unless such association is authorised in advance by the CCO;
34.Not use or be under the influence of alcohol, except if such use is approved in advance by the CCO;
35.Attend for, and submit to, urinalysis or other testing, including breath-testing, for alcohol as directed by the CCO or by a police officer, in order to monitor his compliance with the immediately prior condition;
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