Director of Public Prosecutions (WA) v Jonsson - [2012] WASC 439

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- JONSSON [2012] WASC 439

CORAM: McKECHNIE J

HEARD: 3 SEPTEMBER & 19 NOVEMBER 2012

DELIVERED : 19 NOVEMBER 2012

FILE NO/S: DSO 1 of 2011

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
STEPHEN MICHAEL JONSSON
Respondent

Catchwords:

Dangerous sexual offender - Application of principles - Difficulty when different government departments have responsibilities - Turns on own facts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Declaration the respondent is a dangerous sexual offender
Order that he be detained in custody for care, control or treatment

Category: B

Representation:

Counsel:

Applicant: Ms T J Austin
Respondent: Ms F R Veltman

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: F R Veltman

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

DPP v Williams [2007] WASCA 206; (2007) 35 WAR 279

McKECHNIE J: This case demonstrates a sad failure of State departments to resolve a complex and difficult issue. The respondent is a dangerous sex offender with unique treatment needs.

An unacceptable delay

On 26 October 2011 I made an interim order and set a hearing date for 5 and 6 December 2011. On that day the matter was remanded through to 5 March 2012. The matter was then adjourned to 26 April 2012 and from that date to 1 and 2 August 2012 when it was further adjourned. When the matter came for decision on 3 September 2012, nearly a year after the interim order was made, it had to be further adjourned for reasons I set out later.
While I understand the reasons for the adjournments, which among other things, related to the difficult question of possible supervision, continual delays frustrate the purpose of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). The intention of the DSO Act is to provide an expeditious hearing and determination. The respondent has been detained for a lengthy period without any determination being made as to whether he is a dangerous sexual offender. This has a practical effect. If detained in custody, as the respondent must be, he cannot apply for review for one year, even though he has been detained by an interim order for more than a year already.

The respondent: Stephen Michael Jonsson

Mr Jonsson is a 48‑year‑old man born in New South Wales, one of five male children. He never had a loving relationship with his siblings or parents and was subject to physical abuse by his father when he was young. Between the age of 1 and 2 he accidentally hit his head possibly by slipping on a wet floor.
He had prominent behavioural problems from an early age and was placed in an institution at the age of 10 where he remained for the following 19 years. At the age of 29 he joined his parents in Albany for a short time but his relationship with them broke down. He has been a client of Disability Services Commission (DSC), its predecessors or Eastern States equivalents, since the age of three and has a mild intellectual impairment. He has no psychiatric condition but is assessed by Dr Febbo and Dr Wojnarowska as fulfilling the criteria for a diagnosis of paedophilia.
He has always required substantial involvement by DSC. Psychological testing in 1995 found his verbal IQ to be 56, his performance to be 79 and his overall IQ as 66. In some areas he functions relatively well. He has a significant phonetic language articulation defect. He has no appropriate relationships with individuals of his own age either intimate or non‑intimate.

Criminal history

The respondent has no juvenile conviction and his adult criminal history did not commence until an offence on 27 November 2006.
The respondent was charged with indecent dealing with a child under the age of 13 and stood trial for that offence on 2 November 1998. The jury returned a verdict of not guilty. I leave that matter out of account.

Proceedings 15 June 2007

The respondent pleaded guilty to indecently dealing with a girl under the age of 13 years by touching her vagina. The facts as outlined by the prosecution and accepted by the defence were:
The offender is a 42-year-old male who suffers from an intellectual disability. He resides by himself, in his own home. However, he requires the care of a person from the disability services to visit him each day to assist him with daily tasks. The complainant is an 11-year-old female. She resides with her mother, father and siblings in Gosnells. The offender is a friend of the victim's family. He regularly visits the family for meals and regularly spends a night at their address.
On Monday 27 November 2006 the offender went to the Gosnells home and spent the evening with the victim and her family, after staying over dinner. The victim's parents allowed the offender to sleep the night in their home as it was too late for him to catch a train home. At about 12.30 am on Tuesday 28 November 2006, the victim was sleeping in her bedroom. She was lying in her bed, wearing pyjamas.
The offender has entered the victim's bedroom, he has rubbed his hand on the victim's stomach and on her legs, causing her to wake from her sleep. The offender then placed his hand between the complainant's legs and rubbed her vagina. This incident lasted for five to 10 seconds and his hand remained on the outside of the victim's pyjamas. The offender removed his hand from in between the complainant's legs and moved forward to the complainant's face and quickly kissed her on the cheek.
The complainant pushed the offender away with her hands and immediately walked out of her bedroom. She went to her older sister's bedroom and informed her of the incident and as a result the victim told her parents and the victim's father drove the offender home. On 12 December 2006 the offender participated in a video record of interview with detectives. A support person from disability services was present during that interview.
The offender readily admitted entering the complainant's bedroom, touching her down there and then kissing her on the cheek. He stated he did not know why he behaved in the manner and was aware that his actions were wrong (Book of Materials, vol 1, page 271 ‑ 272).
He was placed on an ISO on 15 June 2007 for 2 years.
There was a reference in the materials put before this court to the fact that there were two incidents of inappropriate conduct between 2003 and 2005 and that the respondent attended counselling for six months.
The respondent pleaded guilty to a charge of assault occasioning bodily harm on 29 April 2008 and thereby breached the ISO.
On 2 September 2008 he came to be dealt with that offence and also pleaded guilty to indecently dealing with a child under the age of 13 by rubbing her vagina in April 2004:
The complainant in this matter was seven years old and the offender was 39 years old at the time of the offence. The complainant and the offender are known to each other, as the offender was previously befriended by the complainant's father.
In April 2004 the offender was invited for dinner at the complainant's father's residence. On this occasion, the complainant and her three siblings were visiting their father for the evening. At the conclusion of dinner he was told to catch a taxi home. He repeatedly asked if he could stay overnight, a request that was eventually agreed to by the complainant's father.
Later in the evening the complainant's father showed the offender to the rear spare room whilst the complainant slept in the games room with her three siblings and her father. Whilst everyone was asleep, the offender entered the games room and picked up the complainant. He carried her back to the rear bedroom and laid her on the bed. He lay down next to the complainant, who was still sleeping, and he commenced to stroke her hair prior to placing his hand under her underpants and rubbing her vagina with his hand. The complainant began to wake up, and on seeing the offender, she stated she needed a drink. She stood up from the bed and left the room (Book of Materials, vol 2, page 439).
The judge extended the original supervision order and placed the offender on a further ISO for 12 months noting that the respondent had spent time in custody.
On 5 September 2010 the respondent detained a young girl with intent to cause a detriment to her. She was 8 years old:
On Sunday, 5 September 2010 at about 1 pm, the complainant, an eight‑year‑old female, was at Glendalough Train Station in company with her mother. The complainant and her mother was returning home after having attended a church service. The mother attempted to purchase a ticket at the ticket dispenser on the lower level on the train station only to find the dispensing machine out of order.
The accused attempted to engage in conversation with the mother and complainant, however, was dismissed. The mother then told her daughter that they would try the machine on the upper concourse. The complainant went ahead of her mother and ran up the escalator. The complainant's mother called her daughter and said she was going to the toilet and she was to wait at the top of the escalator for her.
The mother went into the public toilet and whilst inside the toilet, she heard a loud scream and a voice calling out, 'Mum'. The mother recognised the voice as her daughter's and that she sounded a lot closer than being at the top of the escalator.
The mother exited the female toilet and opened the door of the male public toilet adjacent. When she opened the door, she saw her daughter inside the male toilet and an adult male standing behind her daughter. The complainant ran to her mother and they both left the immediate area. Police were called and the complainant's mother pointed out the offender to attending police.
The offender was apprehended walking west along Scarborough Beach Road. At the time of offending, the offender was subject to a prohibition order made by the District Court of Western Australia prohibiting the offender from, without reasonable excuse, associating or having contact with any child unless the relevant parent or guardian of that child is present and able to view the child at all times (Book of Materials, vol 3, page 692).
The CCTV footage is disturbing. It shows the respondent lurking around the train station apparently in wait for the right opportunity.
On 10 February 2011 the respondent was sentenced to a term of 14 months' imprisonment with parole eligibility.
While in prison he was assessed for sexual offence treatment options. Ms Marley, a clinical psychologist, noted he was assessed as suitable for inclusion in a sex offending programme for people with an intellectual disability but had not received any intervention due to the course being cancelled. In her opinion:
Mr Jonsson has significant outstanding treatment needs relating to sexual offending. However, his intellectual disability, speech impediment and complex social needs would require a specifically tailored intervention plan that includes treatment, support and management. This has not been provided during this prison sentence. However, it must be noted that given the complexities and lack of clarity around Mr Jonsson's motivation to change, any intervention to address sexual offending may be difficult. Better outcomes may be achieved by providing Mr Jonsson with a structured and supervised environment, where he is supported to achieve pro-social relationships (Book of Materials, vol 3, page 715).
She noted that he may not be ideally suited to treatment intervention, rather an environmental intervention that focuses on both pro‑social and high risk situations may be more effective in achieving change. She described his treatment needs as 'unique'.

Serious danger to the community

Counsel for the respondent concedes on his behalf that he is a serious danger to the community unless detained or supervised.
The concession is appropriate. Although not at the gravest level of offending, the respondent shows persistent desires to molest young girls. It still remains a matter for me to be satisfied of that fact by clear and cogent evidence to a high degree of probability.
By application of the matters specified in the DSO Act s 7(3)(a) I am so satisfied.

(a) Reports of psychiatrists

The respondent has been examined by Dr Febbo and Dr Wojnarowska. Dr Wojnarowska considered that the respondent meets the criteria for paedophilia she does not make a diagnosis of anti‑social personality disorder. She considers his personality and characteristics are far from conforming to the clinical constructive psychopathy. Before forming the opinion:
Mr Jonsson scored high in terms of risk of re-offending on all actuarial instruments and clinical guidelines that have been used. This is consistent with my clinical assessment and is supported by collateral information, including that obtained from Ms Shand who has had almost daily contact with Mr Jonsson over the years (Book of Materials, vol 3, page 739).

Dr Febbo

Dr Febbo also made a diagnosis of paedophilia and global assessment of functioning of 40 with 'major impairment, judgment, thinking and difficulties in communication'. Although Dr Febbo scored the respondent higher on the PCL‑R he also concluded that the score of 18.9 is significantly below the cut off traditionally used to diagnose psychopathy which is 30 points or higher.
In Dr Febbo's opinion:
[Mr] Jonsson would be at high risk of a further sexual offence if he is not subject to a continuing Detention or Supervision Order.
It is also my opinion that it is extremely unlikely that there will be any further long‑term reduction for risk with continued detention and this is a case that what takes place following release, in particular, placement and the level of monitoring and supervision, will have the impact on risk (Book of Materials, vol 3, page 768).

(b) Psychological assessment

The psychological report of the forensic psychologist report of 4 June 2008 is of limited value. It addressed his fitness to plead in 1997. Mr Watts' report of 2 November 2006 principally addressed the issue of the court hearing and whether an interpreter was needed. He did note that the respondent is dyspraxic. In evidence, Dr Febbo confirmed dyspraxia is not necessarily linked to intellectual impairment.
In his report of 15 July 2007 Mr Cicchini, a clinical psychologist, could not establish treatment needs because of the respondent's poor communication skills and the need for exploration over time.

(c) Propensity

Having regard to the social history obtained from the respondent over the years it is undoubted that the respondent has a propensity to commit sexual offences which may, on occasions, be serious sexual offences. He has an entrenched sexual deviancy.

(d) Pattern

There is no particular pattern of offending. Two offences occurred at night in the houses of families he had befriended. The third offence though not technically a sexual offence - it was a precursor to one - involved a stranger.

(e) Efforts to address the behaviour

The respondent, through no fault of his own, has difficulty in engaging in rehabilitation programmes because of his intellectual disability.
The combination of past offending indicates that the respondent's intellectual disability manifests itself in uninhibited behaviour towards little girls. The unequivocal opinion of each psychiatrist is that the respondent remains at high risk of re‑offending.
The past offending of itself is not of the highest order of serious sexual offending; disturbing and damaging though it must have been to the complainants. However, there is a degree of cunning about some of the offending and it does seem to be progressing in seriousness.
I am satisfied to a high degree of probability that the respondent is a serious danger to the community.

Detention or supervision

The real issue is whether the respondent should be detained for care, control or treatment or released on supervision. The paramount consideration is the adequate protection of the community. In other words, the fact that the respondent has a mild to moderate mental impairment, or the fact that the respondent's needs may be better catered for in the community, are subordinated to the paramount consideration. So is the fact that unless the respondent is given an opportunity in due course, he may be condemned to live out his life in detention.
The least restrictive option should be chosen if the community can be adequately protected. 'Adequate' does not mean 'absolute'.
A dangerous sexual offender has served the sentence for the crime. Further restrictions on their liberty are justified for the protection of the community. However, those restrictions are based on a prediction of risk, not actual conduct. They should be no more than is necessary for adequate community protection.
This case highlights the divided roles and responsibilities of government (in its widest sense) under the Dangerous Sexual Offenders Act.
The DPP is the applicant and has carriage of the litigation. The Department of Corrective Services (DCS) is responsible for making recommendations to the DPP as to possible candidates for a DSO application. The DCS is responsible for the delivery of services within prison and to a lesser extent outside of prison. DCS has responsibilities for supervision if a person is placed on a supervision order and also undertakes delivery of services, including psychological counselling both within and outside a custodial setting.
DCS asserts it has no or little role in finding accommodation for a person who may be released on supervision.
Police have a significant interest in the supervision of dangerous sexual offenders, not least because the offenders may also have other reportable conditions direct with the police.
In this case, DSC has a real and immediate interest. The respondent is registered with DSC and is eligible for funding and other services. Remarkably, relevant officers within DCS had not directly spoken with relevant officers within DSC prior to the September hearing. Instead they spoke only to Teem Treasure which is a private company to whom DSC outsources some of its work and responsibilities. As a result, Teem Treasure must apply to DSC for funding on behalf of clients. These applications are reviewed annually by DSC so there is no guarantee that funding would be available for the life of a supervision order. Dr Chalmers, Director General of DSC did not know of the issue until served with a summons to appear in court.
Dr Chalmer's evidence is at odds with earlier advice provided to DCS.
On 12 November 2011 Ms Miller, Senior Community Corrections Officer, wrote in her updated community supervision assessment:
In relation to the amount of $173,973, Disability Services Commission has advised that this amount has been approved.
Today, Dr Chalmer's described this as 'notional'.
Nevertheless, both Mr Treasure earlier, and Ms Miller as quoted, both had the clear impression that recurrent funding had been approved.
Both Dr Febbo and Dr Wojnarowska consider that the respondent must be under 24 hour supervision in order for the risk to be adequately managed in the community. The one concession that Dr Wojnarowska noted could be made would be the imposition of a curfew and replacement of a staff member with an electronic device worn during night‑time hours between 10 pm and 7 am. However, she points out:
In relation to the proposed accommodation, it appears that Teem Treasure was successful in securing accommodation in the Warwick area with another intellectually disabled client. The Sex Offender Management Squad however identified this location as offering Mr Jonsson opportunities to have easy access to children, being in close proximity to places such as a primary and high school, parks and movie cinemas. There are also concerns that this accommodation is within walking distance to the Warwick shopping centre as well as the train and bus interchange. Given Mr Jonsson's history of using public transport and the fact that his most recent offence took place at a train station, this is a major concern. In terms of employment, I would agree with the CCS and Teem Treasure plan that should twenty four hour supervision be secured, Mr Jonsson would not need to be involved with additional working activities. The proposed travel to work does not appear to be acceptable if the twenty four hour requirement is not fulfilled (Supplementary Book of Materials, page 797).

Ms Shand is a supervisor at Teem Treasure. She has provided services to the respondent for over six years and is probably the person who knows him best. She outlined the difficulties with obtaining suitable staff within the funding available and indicated that they would provide a degree of informal training for their staff. Actual training in relation to sex offenders is not available in Australia. However, Ms Shand has since attended Dangerous Sex Offending training at the Corrective Services Academy. She has also been given details of other training opportunities which may be beneficial.
Mr Treasure is the managing director of Teem Treasure. He gave evidence on 3 September. He has applied to DSC for interim funding for the respondent and more importantly advised that CAP funding has now been approved and that will continue for every year.
Mr Treasure advised that the accommodation was set.
He considered that to provide proper supervision with a team approach would require at least $250,000 a year. The original proposal was to have another occupant of the house with the respondent so that the funding could be pooled. That proposal did not proceed in part because of behavioural issues in respect of the other person.
Mr Treasure was more confident than Ms Shand at the ability to 'pick our staff'. While there had been some considerable difficulties in the past attracting the right individuals, if funding was secured it would be easier to attract applicants with the necessary qualifications and experience. Nevertheless, this remains a significant issue.
Overall, I was impressed with the evidence of both Ms Shand and Mr Treasure. They seemed alive to the difficulties and challenges but prepared to work with Mr Jonsson to secure, as far as possible, his compliance with a supervision order.

Adjournment

At the conclusion of the day's hearing on 3 September 2012, I indicated I was contemplating an adjournment of the proceedings. Neither counsel demurred.
The reason for the adjournment as set out in DPP v Williams [2007] WASCA 206; (2007) 35 WAR 279 is because I did not have sufficient information to make a decision as to whether the paramount consideration can be satisfied by a detention order or a supervision order.
It is especially unfortunate that I had not been provided with sufficient information in view of the very lengthy time it has taken to get this matter to hearing.
I did not have the information in part because DCS had not made any direct approach to the principal funder, DSC. Although DCS had worked with Mr Treasure, it ought to have been obvious that this issue requires a governmental approach and it is unfair to lumber a non‑government organisation with the task of trying to secure funding from government without the active involvement of the government department responsible for administering the DSO Act. Indeed, the only agency that appears to have been actively trying to assist with the respondent's possible reintegration into the community is the non‑government organisation, Teem Treasure.
A further deficiency was revealed. Although Dr Febbo had advised that the respondent has treatment needs and recommended one‑on‑one counselling, nothing had been done. The departmental officer was of the view that if a supervision order is made then the respondent will be assessed for counselling and services provided. She indicated that as the respondent was in prison the responsibility for any counselling was that of the prison. I do not regard the Department as bipolar but one unity. The response is inadequate.
No government department seems to want to take responsibility for what is undoubtedly a difficult case.
At the hearing on 19 November the DPP called as a witness Dr Ron Chalmers, Director General, Disability Services Commission.
I can do no better than repeat verbatim his attitude to the issue:
Background
The Disability Services Commission is the State Government agency responsible for advancing opportunities, community participation and quality of life for people with disabilities. Established under the Disability Services Act 1993, the Commission provides a range of direct services and supports and also funds non‑government organisations to provide services to people with disabilities, their families and carers. As such, the commission is both a funder and a provider of disability support services in Western Australia.
The Disability Services Act 1993 (Part 4) enables the Commission to provide grants of financial assistance to (a) a person with a disability, (b) a carer, (c) a service provider, or (d) a service developer.
The Disability Services Commission is not required to provide financial assistance to a person with a disability.
The Disability Services Commission cannot compel an individual to accept financial assistance.
The Disability Services Commission has no statutory powers to detain people with disability or to compel them to access services. The Commission cannot enter into a contract with a non-government organisation which requires the organisation to detain people with disability or to compel them to access services.
A grant of financial assistance allocated to a person with disability can only be used for purposes related to the individual's disability. This can include purposes such as accommodation support, personal care, skills development, transport assistance, therapy and equipment.
Funding allocated to persons with disability cannot be used for community based supervision associated with offending behaviour or as a condition of a court order.
Neither the Disability Services Commission nor non-governmental organisations funded by the Commission have the mandate to detain a person with a disability or to impose a community based supervision regime.
Mr Stephen Michael Jonsson
Mr Stephen Michael Jonsson is a 48 year old man with a mild to moderate intellectual disability.
Prior to Mr Jonsson's imprisonment, he was accessing disability support services from Teem Treasure Pty Ltd, a non-government organisation funded by the Disability Services Commission.
The level of funding provided to Teem Treasure by the Commission to support Mr Jonsson was $47,582 per annum. This was the assessed level of funding required to support Mr Jonsson to live in the community. This level of funding was commensurate with Mr Jonsson's level of disability.
In early 2012 the Commission received an application for additional funding to support Mr Jonsson when he was released from prison.
The Estimate for Required Staff Support Instrument (ERSSI) used to assess Mr Jonsson's needs was completed on 17 February 2012. It was determined that $166,801 was an estimated level of funding to support Mr Jonsson to live in the community.
It has since been determined that a significant component of the support claimed in the ERSSI assessment was for community supervision related to Mr Jonsson's offending behaviour, which cannot be funded by the Commission.
Once the funding for community supervision has been discounted, the current level of funding available to support Mr Jonsson is $114,729. This funding can become available when Mr Jonsson is released from prison.
Plainly the amount which DSC is prepared to allocate is inadequate for the purpose of a supervision order. I accept though that DSC is constrained by the level of funding it receives and the scope of its operation.
Senior Community Correction's Officer, Ms Miller's updated report in relation to the costs associated with a supervision order:
It is noted the Department of Corrective Services in not funded for this purpose.
That, with respect to DCS, is a totally inadequate response. The DSO Act has been in operation for six years. DCS has a vital role in its administration under it.
If a person is detained in custody following an order under the DSO Act s 17, DCS are responsible for their care, control or treatment.
Why should the responsibility of DCS cease if a supervision order is made, especially as s 18 requires significant DCS involvement?
The State bears significant costs for every prisoner detained in custody, including persons detained under the DSO Act.
The normal costs of administering a supervision order are likely to be significantly less. To assert that DCS is not funded for all purposes of the administration of supervision orders is no proper answer even though it is the evidence in this case.
And so we reach this unhappy situation. The respondent is a serious danger to the community. He is also a person with an intellectual disability. As that will not improve, he faces spending the rest of his life in detention. Mr Nigel Cameron, a clinical psychologist, conducted an assessment on the respondent as to his needs and suitability for psychological based interventions to reduce his risk of future sexual offending. He concludes:
Prognosis in the absence of intervention
In the absence of significant wrap around interventions, the prognosis looks poor, and increasingly so as the years pass. Mr Jonsson's anxiety and resistance to leaving prison seems likely to increase over time (and his institutionalisation will increase). If he is to be released, the best long term prognosis will be obtained by acting in the near future to develop thorough and strategic plans as suggested above. That said, with the right interventions it would seem that the risks could be managed appropriately if incentives for compliance and participation are well matched to Mr Jonsson's needs.
Dr Febbo's opinion, quoted earlier, is that continued detention will not reduce risk but placement and supervision will have an impact.
The reason the respondent faces detention not supervision, is because the only organisation with a workable proposal is Teem Treasure, a non‑government agency. The respondent meets the criteria for assistance from DSC. The respondent, if released, would be supervised by DCS. But neither DCS nor DSC will fund supervision. So the only order I can make for the adequate protection of the community is for this 48‑year‑old intellectually handicapped man to be detained in custody for care, control or treatment. Unless departmental attitudes change, this is likely to be a life sentence.