Director of Public Prosecutions (WA) v Jonsson [No 2]
[2014] WASC 275
•1 AUGUST 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- JONSSON [No 2] [2014] WASC 275
CORAM: McKECHNIE J
HEARD: 21 NOVEMBER 2013 & 19 JUNE 2014
DELIVERED : 1 AUGUST 2014
FILE NO/S: DSO 1 of 2011
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
STEPHEN MICHAEL JONSSON
Respondent
Catchwords:
Dangerous sexual offender - Whether release on supervision appropriate - No new principles
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
The respondent remains a dangerous sexual offender
Supervision order for 5 years from 6 August 2014
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):
Director of Public Prosecutions (WA) v Jonsson [2012] WASC 439
McKECHNIE J: Resolution of this application has been long delayed due to the lack of suitable accommodation. It can wait no longer.
Hearing - 21 November 2013: The respondent remains a serious danger to the community
This was the first annual review following a declaration that the respondent is a dangerous sexual offender and an order that he be detained in custody: Director of Public Prosecutions (WA) v Jonsson [2012] WASC 439. For the purposes of this annual review, Dr Wojnarowska prepared a report dated 5 November 2013. Dr Wojnarowska's opinion:
Mr Jonsson is a cognitively impaired man with sexual preference for children, who found the prison environment fulfilling his unmet needs for nonsexual intimacy and friendship. Mr Jonsson continues to present an unacceptably high risk to the community if the appropriate measures to modulate this risk are not taken. Furthermore, it is very unlikely that there will be any long term reduction of risk with continued detention.
This accorded with my finding in 2012 [31] ‑ [33].
It was not in fact contested by the respondent through counsel Ms Veltman. I am therefore satisfied that the respondent remains a continuing danger to the community unless a detention or supervision order is made.
Detention or supervision
Dr Wojnarowska:
If the Court imposes a Continued Detention Order, commencement of a de‑institutionalisation process by transferring Mr Jonsson to lower security prison (medium and then minimum) is imperative. This would allow for change of the unhelpful dynamics which impede Mr Johsson's chances for re‑socialisation; furthermore the transfer to a less structured and less protective setting would provide an opportunity to observe Mr Jonsson in a more 'community‑like' environment and adjust the release management plan accordingly.
Dr Wojnarowska noted two barriers to community supervision, the first being funding and the second being the respondent's attitude to his release:
Mr Jonsson's attitude towards his release - Mr Jonsson has expressed ambivalence towards the proposal of his release since his first imprisonment in 2008. There were occasions when Mr Jonsson expressed a wish to be released, however when provided with information regarding supervision requirements he withdrew the request. When previously assessed by the author (April 2012) he requested that he be allowed to remain in prison. At that time he appeared to lead a fulfilling life in custody taking care of greyhounds and chickens. He reported that he felt comfortable in the prison environment where he was treated kindly unlike his experiences in the community. Additionally, he appreciated being part of the prison 'fraternity' but also having his own space. This attitude has not altered. To the contrary, during my last assessment there was evidence that further institutionalisation has taken place. He informed that although he was not involved with the greyhounds any longer, he was now looking after the vegetable garden in the prison. He explained that looking after the greyhounds was an 'attractive activity' which had to be shared with others also interested in this type of work. He appeared to have accepted this and said that he was 'very happy' with his current life. His responses to questions in relation to his release to the community will be outlined in the section Interview with Mr Jonsson.
In the past year, a forensic psychologist, Dr Tara Yewers, had three contacts with the respondent, while he refused to attend a fourth contact:
This mode of responding is consistent with his reported contact with other assessors and in the context of his limited engagement in treatment to date. A possible implication of his described mode of engagement is that he has more capacity to effectively engage in intervention than has been realised to date.
Dr Yewers booked further contact with Mr Jonsson, the plan being to assist him to prepare for and, subsequently, adjust to new prison environments. As indicated there would be a gradual shift to offence focussed issues and development of self‑management strategies appropriate to his level of functioning.
One issue was the respondent's firm desire to remain at Hakea Prison. Although Dr Wojnarowska described his views as ambivalent, Ms Veltman passed on to the court his request to remain in Hakea Prison.
One positive development in the past year was the formation of a multi‑disciplinary team involving the Department of Corrective Services and Teem Treasure.
Financing is available to the sum of approximately $114,000 through the Disability Services Commission. Ms Shand from Teem Treasure indicated that they would provide 60 to 70 hours a week of support. Since last year, a standard supervision condition is now GPS monitoring, which Mr Barlow described in some detail. This gives some, though not complete, assurance of further protection for the community.
If I continue to expressly decline to rescind the detention order, despite the positive attributes that may justify release on supervision, the respondent may well regress. Those positive aspects indicate the level of involvement by others to manage and supervise him.
The paramount consideration is the adequate protection of the community. This is not always achieved by a detention order. As Parliament has expressly accepted, there are occasions where a supervision order within the community is appropriate. With further work, there is a prospect that the respondent would be ready for supervision within the community. At the first hearing, this presented two issues: First, whenever he is released, Teem Treasure, or some organisation, will require some time to prepare for his release after the decision is made known.
Secondly, release on supervision cannot occur without giving detailed reasons at the time of release on supervision, or the making of a detention order.
At the first hearing, accommodation for the respondent had not been settled. Ms Shand gave evidence that there was accommodation available, but would need time to secure and then train appropriate staff to manage the level of involvement that would be necessary. It was also necessary to see whether or not employment could be secured, as it is important the respondent keep active and working at jobs that he can and also enjoys.
The first hearing is adjourned
The course I adopted (which I immediately acknowledge as unusual) was to adjourn this matter for a period until 28 March 2014 at 9.30 am. Ms Veltman was prepared to accept the possibility that at the end of March the arrangements that may be then proposed would still not satisfy me that the community could be adequately protected, in which case the continuing detention order would not be expressly rescinded. If this happened the respondent would lose four months before a further annual review in 2015. However, she informed me that the respondent was prepared to accept that possibility.
During the period of adjournment, a number of steps were taken. Dr Wojnarowska and others recommended a transfer as soon as possible into a minimum security, less structured, more open environment, to assess the respondent's response to such a society. It was likely that the respondent would adapt after a short period of discomfort. Ms Shand, who knows him well, thought that he could adapt to a new environment within a week.
A management plan was prepared to instruct and guide officers in contact with the respondent how to maintain discipline in a firm, though kind, manner. This was done and training given. The respondent is, by all accounts, a social person, and easy to befriend. The respondent needed independent living to prepare him for supervision. The implementation of a plan to prepare the respondent to understand and comply with the obligations of a supervision order was also required. It is important for the respondent to understand very clearly his obligations under the reporting order.
Although not formally tendered, I have had regard to a further report on a Community Supervision Assessment Progress Update dated 28 February 2014 which outlined the progress that the respondent had made for transition into the community. The proceedings are criminal proceedings: Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) s 40 and ordinary rules of evidence apply subject to two exceptions: DSO Act s 42. I have taken this material into account on this occasion because it is favourable to the respondent but should not be seen as a general exemption from the requirements of DSO Act s 42.
A gradual induction orientation programme was developed to move the respondent from Hakea Prison to Acacia Prison. After careful consideration by the department, it was determined that a transfer from Hakea to Karnet Prison Farm would be too significant a change for the respondent.
In a further report dated 20 March 2014, also not tendered, it was noted that Dr Yewers and a psychologist from Disability Services Commission, Mr Cameron, provided a training and information session to staff from Teem Treasure who would be working with the respondent in the community. Also present was the Senior Community Corrections Officer from the Public Protection Unit who would be supervising the respondent in the community.
Dr Yewers indicated that the respondent had attended nine psychological sessions since November 2013 and a further two prior to his transfer to Bunbury Pre‑Release Unit. The focus of these sessions was on his adjustment to new living arrangements and possible release into the community.
Her conclusions were:
10.Overall Mr Jonsson engaged in psychological counselling and progress was evident in his preparation and acceptance of his transfer from Hakea Prison to Bunbury Pre Release Unit. He did not express direct objection to a possible release to the community and stated his intention to comply with the requirements. His reluctance to discuss subjects undesirable to him persisted.
…
12.If Mr Jonsson is placed on a community supervision order, his treatment needs will continue to be overseen by the DSO Psychology Team and he will also be case managed collaboratively by the risk management group. The model of service delivery utilised with those subject to DSO supervision orders is one of collaborative multi-agency partnerships to augment supervision, intervention and ongoing risk assessment. Close collaboration with Teem Treasure will be important and the DSO psychologist (myself) will be available for consultation as required. This approach involves regular information sharing and liaison between various agencies and treatment providers involved with the support and management of individuals in the community.
13.Ongoing psychological contact with Mr Jonsson will be provided should he be released. The immediate goal would be to assist him in adjusting to returning to community living, as well as understanding and complying with the conditions of his order and encouraging a degree of self-management of these. The extent that Mr Jonsson will engage in intervention to address treatment needs related to his sexual offending is unclear, however evidence from psychological sessions to date suggest that he is unlikely to do so due to motivational factors which are further exacerbated by his intellectual impairment and severe speech impediment. Given these factors, Mr Jonsson's supervision will necessarily entail a comprehensive, externally based risk management structure.
Hearing of the 28 March 2014 adjourned
The hearing scheduled for 28 March 2014 did not take place and was adjourned by consent of both parties. The reason for the adjournment was that accommodation had not been found.
There has been progress since March 2014. In a Dangerous Sex Offender Treatment Progress Report of 5 June 2014, not tendered, Dr Ben Bannister, Forensic Psychological Service Manager, reported:
5.Broadly, since arriving at Bunbury Pre-Release Unit, Dr Yewers' one‑on‑one sessions with Mr Jonsson have focussed on his adjustment to his new environment, addressing his approach to his potential release to the community, and discussion of likely reporting requirements. According to Dr Yewers, he has consistently expressed awareness of what would be required of him on a community based order, and that he would comply with such requirements.
6.Specifically, since her Treatment Update Report was completed on 26/03/2014, Dr Yewers has seen Mr Jonsson for an additional session at Bunbury Regional Prison, on 14/05/2014. She saw him for about one hour. He presented as relaxed and talkative, engaged well in discussion and initiated conversation topics. Dr Yewers revisited a previous issue raised by Mr Jonsson on 5/3/2014, where he said he would not carry a mobile phone, stating that his reluctance was due to cost. She outlined to him that this was a requirement of the GPS monitoring system, as he would need to be contactable. The practical necessities of the GPS system was also explained to Mr Jonsson, and he clarified that he was agreeable with using GPS.
7.Dr Yewers noted that Mr Jonsson appeared to be anticipating his release and she found no indication in their sessions otherwise. She observed that this appeared to be a demonstrable shift in his attitude, and that it was likely bolstered by other prisoners being supportive and encouraging of his return to the community as well as receiving a consistent message from a range of parties that it was perhaps probable he'd be released. Overall, Mr Jonsson was found by Dr Yewers to be accepting of a possible move back to the community.
8.However, concurrent with Mr Jonsson's acceptance of release to the community, there is evidence that he has struggled with managing anxiety associated with change. Prison records indicate that in the lead up to anticipated court hearings that were subsequently adjourned, Mr Jonsson had trouble sleeping. He had also reportedly taken to enacting self-injurious behaviour, such as hitting himself in the head, in order to manage frustration. Furthermore, records show that upon learning of the adjournments, Mr Jonsson seemed relieved and expressed that he was happy in his current placement and did not want to move. He was spoken to by prison staff about the concerns around his self-injurious behaviour, and he was reported to have agreed not to do it again.
Hearing on 19 July 2014
Shortly before the resumed hearing on 19 June 2014 the proposed accommodation became unavailable. Ms Shand gave evidence at the hearing that accommodation was not available although 'in about six weeks time we possibly could have accommodation for Mr Jonsson'. Mr Jonsson would reside alone in the house with the supervision as outlined.
The very considerable efforts by Ms Shand of Teem Treasure to obtain accommodation for the respondent have been unsuccessful through no fault of hers.
There was a possibility of accommodation with another client of Teem Treasure. The pooling of accommodation would have provided 24 hour supervision.
A new proposal for accommodation would provide less supervision because of the maximum amount of money that would be advanced by DSC. Essentially the respondent would be supervised as follows:
Day shift:Every day of the week and weekends: between 9.00 am and 2.00 pm.
Afternoon shift: Every day 3.00 pm to 8.00 pm with the exception of Friday and Saturday which will be from 3.00 pm to 9.00 pm.
A standard condition for a supervision order provides for electronic monitoring. In the Second Reading Speech introducing amendments to the DSO Act to provide for that standard condition:
HON PETER COLLIER (North Metropolitan - Minister for Education) [12.31 pm]: I move -
This bill marks a significant milestone in the government’s commitment to protect the public from dangerous sexual predators. The amendments to the Dangerous Sexual Offenders Act 2006 proposed in this bill, while seemingly small, will in fact improve community safety by enhancing the way dangerous sexual offenders are managed and supervised when released into the community.
The aim of the Dangerous Sexual Offenders Act is to protect the community from the serious dangers posed by this group of offenders. The act allows the court to detain these offenders beyond their sentence or to place them in the community under a supervision order. This bill amends the act by introducing electronic monitoring, specifically GPS technology, as a standard condition of the supervision orders. The community expects that we, their elected representatives, will ensure that these dangerous offenders are subject to the most stringent supervision possible. In other parts of Australia, and elsewhere in the world, these offenders are monitored continuously by GPS technology. The technology is used in a number of jurisdictions including the United States, the United Kingdom, some European nations and, within Australia, Queensland and New South Wales. Victoria has also recently committed to using GPS as a monitoring tool.
In April this year, the government announced that $6 million was being allocated to GPS tracking of dangerous sexual offenders in Western Australia. We have moved swiftly to develop the legislation and the systems and processes to make this commitment a reality. This bill gives the Department of Corrective Services the power to install an electronic device on an offender and at a specified place. When they are released from prison, they will be fitted with the device and specially trained officers from the department will be able to know where they are 24 hours a day, seven days a week. Information from the device will be sent back to a central monitoring station, where it will be monitored and recorded. This does not mean that each offender will be under constant visual surveillance, but it means that there will be the capacity to know an offender’s location at any given point in time. In addition, GPS tracking will let the department know if one of these dangerous offenders is in a location that is a breach of their conditions, such as a victim's house or school. An alarm will be activated if the offender enters an 'exclusion zone' or tries to tamper with the device. This technology is an additional tool by which offenders can be monitored.
The department already has a good track record of managing offenders who are subject to dangerous sexual offender supervision orders, and GPS tracking will be implemented alongside current strong case management practices. The bill also gives the court specific power to impose a curfew. Together with other forms of restrictions, curfews will be monitored by GPS technology. When an offender leaves a curfew area or enters an exclusion zone, an alert will go off at the monitoring station and the Department of Corrective Services will be able to respond promptly.
So that the community is protected against all dangerous sexual offenders, the electronic surveillance will apply to not only offenders who will be released on supervision orders in the future, but also offenders who are on current orders. For offenders who are already on supervision orders, the bill will empower officers from the Department of Corrective Services to impose electronic monitoring on the offenders where it is necessary to do so. Now that GPS technology is available, it is incumbent on the department to use it for the protection of the community.
There are contingency measures in the bill in the event of a device being tampered with. Any attempt to remove a device will attract a severe mandatory penalty. The penalty for tampering with the equipment will be mandatory imprisonment of 12 months. There is potential for the use of GPS to be broadened beyond dangerous sexual offenders to other groups of offenders once the technology has been tested. The government is committed to ensuring that community safety is a priority and implementing GPS tracking for dangerous sexual offenders will contribute towards that goal.
In light of this assurance by the Minister, I am satisfied that the community would be adequately protected by a combination of supervision proposed by Teem Treasure and electronic monitoring.
It is clear that Teem Treasure has put considerable effort into trying to find accommodation for the respondent and into meeting the supervision standards proposed by the Department of Corrective Services. A weekly plan of activities has been prepared and staff have been trained.
The new proposal for accommodation had arisen so swiftly that the Department of Corrective Services did not have time to examine it before the hearing.
At the conclusion of the hearing, I said that I did not propose to deliver my decision for at least four weeks. If during that time the situation regarding accommodation had changed it was open to either party to list the matter for further hearing.
On 22 July 2014, my Associate received an email from Ms Austin indicating the results of a conversation with Ms Dabala that:
1)Teem Treasure have advised that they have accommodation available for Mr Jonsson;
2)The request to assess the property has been submitted by Corrections however the assessment will not take place until at least sometime next week.
Questions of funding for mentoring and gaps in supervision had not been resolved.
The framework of the DSO Act requires that applications be dealt with quickly. If a continuing detention order is made, absent exceptional circumstances, a person may not be reviewed for one year. Any delay is necessarily 'dead time' so far as a respondent is concerned.
After eight months, the situation regarding accommodation is still fluid and uncertain with no guarantee that a further delay will resolve it.
On 19 November 2012 in Director of Public Prosecutions (WA) v Jonsson, I said that 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. Although a considerable effort has been made in the last 18 months to find suitable accommodation for the respondent with appropriate supervision, those efforts have failed. Those efforts seem to have been undertaken mainly by a private organisation rather than any government agency. But for his paedophilia, the respondent's intellectual disability would have him being cared for in the community by the Disability Services Commission.
The evidence establishes that the community could be adequately protected, the paramount consideration, if he was released under a supervision order.
Late breaking events
On 31 July 2014, after the parties had been notified that judgment would be delivered on 1 August 2014, my Associate received an email from Ms Veltman attaching a letter from Ms Shand dated 23 July 2014 as follows:
This correspondence is to confirm that [address] will be ready for Stephen Jonsson to move into on the 1st August 2014 as previously discussed.
It would be very helpful if the Court could give Teem Treasure 24 hours' notice prior to his release. This is due to staff notification and to allow us to arrange to pick up Mr Jonsson from Bunbury Prison.
I understand from the DCS that the housing option would be subject to an external assessment conducted by themselves, as well as the Police so they can then advise the Court of its suitability for Mr Jonsson to reside.
I can confirm that DCS was informed on the 2nd July that [address] would be ready for Mr Jonsson to move into on the 1st August 2014.
We are experiencing great difficulty in retaining staff who have been employed to work with Mr Jonsson.
Due to the court date not being set, we have staff at present waiting to commence their employment working with Mr Jonsson.
These people may not be able to be retained unless we can give them a definite commencement date. This will lead us into having to try to recruit staff again and could derail all the planning we have put into ensuring everything is in place for Mr Jonsson's release.
It would be to everyone's advantage if you could urge the court to make a definite date.
Should you require any further information please contact me at your convenience.
As DCS was informed on 2 July that the address would be available from 1 August 2014 an assessment should have been completed. Teem Treasure requires some notice to make arrangements.
I will release the respondent on a supervision order for 5 years subject to strict conditions on Wednesday, 6 August 2014.
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