Director of Public Prosecutions (WA) v Kyles
[2011] WASC 131
•19 MAY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- KYLES [2011] WASC 131
CORAM: COMMISSIONER SLEIGHT
HEARD: 12 MAY 2011
DELIVERED : 16 MAY 2011
PUBLISHED : 19 MAY 2011
FILE NO/S: MCS 4 of 2011
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
DENNIS GEORGE KYLES
Respondent
Catchwords:
Criminal law and procedure - Dangerous sex offender - Whether a serious danger to the community - Whether a continuing detention or supervision order should be made - Turns on its own facts
Legislation:
Nil
Result:
Application for a continuing detention order granted
Category: B
Representation:
Counsel:
Applicant: Mr D Dempster
Respondent: Mr D J McKenzie
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: David McKenzie
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 37
Director of Public Prosecutions (WA) v TJD [2011] WASC 83
COMMISSIONER SLEIGHT: This is an application for a continuing detention order or a supervision order under s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act). The application concerns the respondent, Mr Kyles, who has a lengthy history of committing sexual offences against children.
Section 17 of the Act provides that if the court finds that the offender is a serious danger to the community then the court may either:
(a)order that the offender be detained in custody for an indefinite term for control, care or treatment (a continuing detention order); or
(b)order that at all times during the period stated in the order when the offender is not in custody, the offender be subject to conditions that the court considers appropriate and states in the order (a supervision order).
The respondent in this matter, Mr Kyles, is due to be released from prison on 18 May 2011 when he will have completed terms of imprisonment imposed on 7 December 1992, 15 November 1995, 27 May 1997, 7 August 2002, 20 February 2003 and 18 July 2003. An application for an order under s 17 of the Act can be made in relation to a person who is under sentence of imprisonment wholly or in part for a serious sexual offence (s 8(1)). The sentences being served by Mr Kyles include sentences imposed in relation to serious sexual offences as defined in the Act.
In deciding whether to make a final order pursuant to s 17 of the Act, the paramount consideration is the need to ensure adequate protection for the community: s 17(2). Section 7 of the Act sets out the factors that must be considered and established on the evidence before the court.
7.Serious danger to the community
(1)Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
(2)The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied -
(a)by acceptable and cogent evidence; and
(b)to a high degree of probability.
(3)In deciding whether to find that a person is a serious danger to the community, the court must have regard to -
(a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;
(b)any other medical, psychiatric, psychological, or other assessment relating to the person;
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future;
(d)whether or not there is any pattern of offending behaviour on the part of the person;
(e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person;
(g)the person's antecedents and criminal record;
(h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
The relevant principles relating to s 7 are summarised in my decision of Director of Public Prosecutions (WA) v TJD [2011] WASC 83 [8] ‑ [10]. In this case, in view of the history of Mr Kyles, his personal circumstances, written material tendered into evidence which included two psychiatric reports ordered under s 14 of the Act and oral evidence given before me, it is not disputed that I ought to be satisfied that there is an unacceptable risk that if an order is not made, Mr Kyles would commit a serious sexual offence. By definition this makes him a serious danger to the community. Nor is it seriously contended on behalf of Mr Kyles that a supervision order should be made. Notwithstanding it is still necessary for me to examine all the evidence and make the necessary findings.
Past criminal history
The starting point in assessing whether Mr Kyles is a serious danger to the community within the meaning of s 17 of the Act is his history of offending. For the purpose of this application, I am entitled to take into account Mr Kyles's criminal convictions in the Children's Court: Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 37.
Mr Kyles started committing sexual offences at the age of 18. He was born on 29 October 1951 and is therefore now aged 59 years. Details of Mr Kyles's sexual offending and convictions can be summarised as follows:
1.On 25 February 1970 Mr Kyles was convicted in the Children's Court of indecently dealing with a 10‑year‑old boy. These convictions relate to offences committed on the 5 February 1970. Mr Kyles picked up the 10‑year‑old boy in a motor vehicle, drove the vehicle to a remote location and in the back seat of the car placed his penis between the boy's legs. For this offence Mr Kyles (who was aged 18 at the time) was placed on 3 years' probation.
2.On 12 September 1980 Mr Kyles was convicted of three counts of aggravated assault. The offences were committed on the 16 August 1980. The offences involved Mr Kyles sexual touching a 6‑year‑old boy, a 7‑year‑old girl and a 3‑year‑old girl, on the same occasion. At the time Mr Kyles was aged 28 years. [suppressed]. Mr Kyles was sentenced to 2 years' probation on each charge.
3.On 18 February 1986 Mr Kyles was convicted of five counts of indecently dealing with a child under the age of 14 years. The offences occurred between the 1 September 1985 and 11 February 1986. [suppressed]. The indecent dealing included acts of oral sex [suppressed]. Mr Kyles was sentenced to 9 months' imprisonment.
4.On 12 May 1987 Mr Kyles was convicted in the Perth Children's Court of indecently dealing with a female under the age of 16 years. The offences occurred between 1 November 1985 and 31 December 1985. [suppressed]. In the Perth Children's Court Mr Kyles was placed on probation for 18 months.
5.On 7 December 1992 Mr Kyles was convicted in the Supreme Court at Perth with respect to 10 counts of sexual penetration of a child under the age of 16 and one count of indecently dealing with a child under the age of 13 years. The offences occurred between 1 December 1991 and 6 May 1992. The sexual penetration charges were for sexual penetration over a period of time [suppressed]. Mr Kyles was sentenced to a term of imprisonment of 9 years and 2 months. Mr Kyles has been a sentenced prisoner ever since, due to further complaints, charges, convictions and sentences since arising relating to offending against other children that occurred prior to his imprisonment in 1992.
6.On 15 November 1995 Mr Kyles was convicted in the Supreme Court at Bunbury with two counts of carnal knowledge of a child under the age of 16 years. The offending occurred in between the 1 January 1973 and 31 December 1973 against a 10‑year‑old girl [suppressed]. The offending comprised penile‑vaginal penetration on two separate but consecutive days. At the time Mr Kyles was aged 21 or 22 years of age. Mr Kyles was sentenced to a term of imprisonment of 4 years and 6 months concurrent with existing sentences.
7.On 27 May 1997 Mr Kyles was sentenced in the District Court at Bunbury with respect to a range of offences against three separate child victims. The first two counts related to an incident of offending against a 12‑year‑old boy between the 13 July 1972 and 20 July 1972 by first masturbating and then anally penetrating him. [suppressed]. At the time Mr Kyles was 20 years of age. The next two counts related to two offences some months apart in 1990 against a 9‑year‑old girl [suppressed]. The first of these counts relates to digital penetration and the second to an indecent dealing in the form of touching the vagina. The final three counts related to offending against an 11‑year‑old boy in 1990 by way of touching the boy's buttocks or penis on three separate occasions. Mr Kyles was sentenced to 6 years' imprisonment to be cumulative on the 1992 sentence.
8.On 7 August 2002 Mr Kyles was sentenced for two offences of carnal knowledge against the order of nature. The offences occurred on two separate dates in 1982 against a 9‑year‑old boy [suppressed]. Both offences were by way of penile‑anal penetration [suppressed]. Mr Kyles was sentenced to 18 months' imprisonment to be cumulative on the existing terms.
9.On 20 February 2003 Mr Kyles was sentenced in the District Court with respect to three counts of carnal knowledge contrary to nature, five counts of carnal knowledge against a girl under the age of 16, five counts of indecently dealing with a child under the age of 13 and 11 counts of indecently dealing with a child under the age of 14. These convictions consisted of one offence of penile‑anal penetration [suppressed] boy in 1972. There were 13 counts relating to Mr Kyles persistent offending against [suppressed] and five separate incidents between 1979 and 1982 [suppressed]. The offending included penile‑anal penetration, digital penetration and fellatio upon the child. There were a further 10 counts related to Mr Kyles' persistent offending against [suppressed] in four separate incidents between 1982 and 1985 [suppressed]. The offending included penile‑vaginal penetration on each occasion. Mr Kyles was sentenced to 6 years imprisonment to be cumulative on the existing term.
10.On 18 July 2003 Mr Kyles was sentenced in the District Court with three counts of carnal knowledge of a girl under the age of 16 and four counts of indecently dealing with a child under the age of 14. [suppressed]. The offences included penile‑vaginal penetration and [suppressed] engage in sexual acts with one another and with him at the same time.
Section 7(3) factors
I will now deal with each of the factors which must be taken into account under s 7(3) of the Act.
(a) Any report that a psychiatrist prepares as required by s 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person.
(i) Dr G Wojnarowska
Dr Wojnarowska was provided with all relevant written material and interviewed Mr Kyles on 16 April 2011 and 26 April 2011. Dr Wojnarowska prepared a written report dated the 27 April 2011 pursuant to s 37 of the Act and also gave oral evidence. After conducting various psychiatric testing, Dr Wojnarowska diagnosed Mr Kyles as suffering from:
1.Paedophilia non‑exclusive type, attracted to males and female.
2.Alcohol dependency.
3.Antisocial personality disorder.
At page 13 of a report dated 27 April 2011, Dr Wojnarowska commented as follows:
In summary Mr Kyles demonstrated a callous, unconcerned attitude towards his victims. Furthermore, he was not prepared to accept the facts related to the physical consequences of sexual penetration of a child's vagina or anus, he demonstrated no insight into the possible psychological damage.
As a part of the psychiatric testing, Dr Wojnarowska conducted a PCL‑R test which assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. Mr Kyles received a score of 26 which according to European standards is the cut‑off for the presence of psychopathy. In her evidence Dr Wojnarowska stated the cut off figure in the USA is 30. According to Dr Wojnarowska the relevance of Mr Kyles's high score is that, alongside the presence of deviant sexual interests, it indicates a high risk of future offending.
At page 25 of the same report Dr Wojnarowska expressed the following views:
In my opinion, Mr Kyles is likely to reoffend against prepubescent male or female children after a short period of being released from custody. There is a strong possibility of him choosing a stranger, for example, picking up a child in his car and it's likely that physical force will also be used. He is likely to sexually penetrate his victim and harm to the victim is likely to be both physical and psychological.
Opinion
Based on the actual risk assessment tools and clinical interviews I have conducted with Mr Kyles, I am of the opinion that he is at very high risk of reoffending and at this point in time continuous detention appears to be the only feasible way to protect the community from him.
(ii) Dr Mark Hall
Dr Hall was provide with all the relevant material and interviewed Mr Kyles on 8 April 2011 and 15 April 2011. He prepared a report dated 29 April 2011 pursuant to s 37 of the Act and also gave evidence in court.
After conducting psychiatric testing, Dr Hall diagnosed that Mr Kyles suffered from the following disorders namely:
1.Paedophilia - same and opposite sex, non‑exclusive type (sexually attracted to both adults and children).
2.Social anxiety disorder.
3.Alcohol dependence - in remission (in custody).
4.Antisocial personality traits.
Unlike the results obtained by Dr Wojnarowska, Dr Hall's PCL‑R testing for psychopathy resulted in Mr Kyles score being in the non‑psychopathic range. This led Dr Hall to conclude that psychopathy is not a risk factor in assessing Mr Kyles's risk of future offending. Notwithstanding this conclusion, Dr Hall still considered Mr K remained at a high risk of offending.
At page 18 of the report, Dr Hall stated as follows:
Despite his denial, Mr Kyles satisfies the diagnostic criteria for paedophilia. Sexually arousing fantasies, behaviours and urges that involve some kind of sexual activity with a prepubescent child have been evident over an extended period of years. Mr Kyles has acted on the urges in the past resulting in convictions for sexual offences. In my opinion, [Mr K's] paedophilia is the driving force behind his offending. The offending in then rationalised by his cognitive distortions, and ultimately facilitated by the dismantling of his internal controls by use of alcohol.
At page 24 of the report, Dr Hall concluded as follows:
Mr Kyles is currently at high risk of reoffending sexually if not subject to a community supervision order or continuing detention order. The essence of Mr Kyles risk lies in:
•His history of persistent, diverse and depraved sexual offences against children.
•Paedophilia, which he currently does not acknowledge.
•Non‑participation in sex offender treatment.
•Persistent cognitive distortions that justify sexual activity with children.
•Vulnerability to alcohol abuse and dependence in the community, with a lack of insight into same.
•His capacity for grooming of children and adults, so as to establish relationships that provide trust and proximity to children.
•His partner's denial in relation to the extent of his sexual deviance and offending.
Mr Kyles is genuine in his desire not to reoffend or cause further harm. However, in my opinion, considerably more treatment is required in relation to the above areas before management in the community setting has a reasonable likelihood of success.
Another difference in the opinions of Dr Hall and Dr Wojnarowska is that Dr Hall diagnosed Mr Kyles as suffering a social anxiety disorder which makes it difficult for Mr Kyles to participate in group therapy sessions. Dr Wojnarowska does not agree that Mr Kyles suffers from a social anxiety disorder. The relevance of this issue I will deal with later in this decision.
(b) Other medical, psychiatric, psychological or other assessment relating to the person
Tendered into evidence in support of the application were two volumes of documents. These documents included material relevant to Mr Kyles's court history. The documents included a brief psychiatric report of Dr G Rollo in 1980 and various psychological, pre‑parole and pre‑sentence reports prepared relating to Mr Kyles. I propose to mention some of this material.
In a report by clinical psychologist, David Wehner, dated 9 March 1993, the following was stated:
Results from the MSI (multi-facet sex inventory) indicate that Mr Kyles scored within the questionable range with respect to his sexual interest. This suggests that he has difficulty in identifying a normal range of sexual interest. Conversely, he appeared to suppress his interest in young children. Mr Kyles also manifests a substantial number of cognitive distortions with respect his offending behaviour and makes significant attempts to justify his sexual deviance. The overall impression is that of a sexually immature individual with an active interest in young children.
Mr Kyles has a longstanding history of sexual offences against children. His treatment needs are very considerable and he is at extremely high risk of reoffending.
A report by forensic psychologist, Ms Clare Lynn, dated 20 June 2002 stated as follows:
Mr Kyles treatment needs are intensive. However, assessment reveals a poor prognosis given that. His readiness and ability to engage fully in treatment is questionable, his prior treatment failure was assigned to an ever present inability to consistently acknowledge the extent of his problems, and his lengthy resistance against intensive group treatment. Mr Kyles is assessed as presenting a high risk of sexual reoffence.
A report by psychologist David Summerton dated 3 June 2003 assesses Mr K at that time as being at a high risk of reoffending. The report includes as follows (pages 6 ‑ 7):
Summary
Mr Kyles is a middle‑aged man who has been convicted of several sex offences against [suppressed] that occurred in the mid‑1980s and included indecent dealing and carnal knowledge. Mr Kyles has an extensive sex offending history beyond the current offences. He generally impresses as having limited insight and accepting limited responsibility for his offending behaviour in as such has significant need to attend treatment if his risk is to be reduced to any degree.
(c) Information indicating whether or not the person has a propensity to commit serious sexual offences in the future
The past offending behaviour of Mr Kyles (albeit that he has been in prison now for almost 20 years) and the most recent psychiatric reports referred to earlier in this decision, firmly establish Mr Kyles has an ongoing propensity to commit serious sexual offences in the future. This will remain the case until his sexual deviancy is treated by way of an intensive sexual offender's treatment programme.
(d) Whether or not there is any pattern of offending behaviour on the part of the person
There is clearly an underlying pattern to Mr Kyles's offending. His offending has been against young children of both sexes. He has shown a callous disregard for his victims and, as already commented, he is a high risk of reoffending in the same manner.
(e) Any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation programme
Despite the fact that Mr Kyles has been held in custody for almost 20 years continuously, and although it has been well recognised that Mr Kyles requires an intensive sex offender treatment programme, Mr Kyles has yet to complete any such programme whilst being held in custody. Mr Kyles has expressed his willingness to participate in a sex offender programme. However, he believes he cannot function in a group environment as he states he becomes too tense and nervous in such a situation (Community Correction Officer's report dated 23 March 2009.
(f) Whether or not the person's participation in any rehabilitation programme has had a positive effect on the person
There has been no positive effect on Mr Kyles's entrenched paedophilic tendencies as he has not completed any sex offender treatment programme.
(g) The person's antecedents and criminal record
Other than the criminal convictions referred to earlier in this decision, Mr Kyles has three convictions of driving in excessive of 0.08 % alcohol and six convictions of driving under the influence contrary to s 63 of the Road Traffic Act 1974 (WA). These convictions demonstrate an acute alcohol problem which was diagnosed by both Dr Wojnarowska and Dr Hall.
(h) The risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence
This issue has been dealt with earlier in this decision. Clearly the opinion of both Dr Wojnarowska and Dr Hall is that there remains a high risk that Mr Kyles will commit a serious sexual offence if not subject to a continuing detention order or supervision order. In fact, both doctors are of the view that at the present time a continuing detention order is appropriate.
The need to protect members of the community from that risk
The need to protect the community from Mr Kyles's propensity to commit serious sexual offences against young child is self‑evident. It is clear on the evidence presented to me that there is a high risk that if Mr Kyles is released into the community he will commit further offences against young children, with the potential thereby to ruin the lives of the young children.
(j) Any other relevant matters
Other matters relevant to this application are as follows:
(i)Previous supervision orders. From 1970 to 1987, Mr Kyles had been subject to a total of seven periods of supervision in the community, including four probation orders and three parole orders. Historical data for much of Mr Kyles's supervision history is very limited, but it would appear that he breached a 1970 probation order by sexual reoffending and satisfactorily completed subsequent probation orders in 1976, 1980 and 1987. However, it should be noted that he subsequently reoffended extensively in 1991 and 1992.
(ii)Proposal for release from custody. Mr Kyles proposes to reside with a long‑term female friend at a Homes West rental property in Coolbellup. Mr Kyles has had a friendship with this woman for approximately 20 years. The place of residence proposed is nearby to a kindergarten and there are also young children who visit the property. There is no need for me to examine in depth the suitability of the proposed place of residence given the conclusion that I have reached in this matter. If eventually Mr Kyles becomes suitable for release under a supervision order, closer examination of the suitability of the arrangements for his place of residence will need to be closely examined.
(iii)Family and early development background. An insight into Mr Kyle's personality traits is revealed by his background. He was raised in a family where his mother and father were alcoholics and from an early age he was exposed to alcohol abuse. On the material before me, it is clear that part of the explanation for Mr Kyles's offending is his abuse of alcohol. Mr Kyles places a significant blame on his offending to his alcohol use. Another significant part of Mr Kyles's history is that he states that as a young boy aged 12, he suffered sexual abuse. Dr Wojnarowska, in her report dated 27 April 2011, states as follows:
Mr Kyles' development of deviant sexual interest in children has undoubtedly been influenced by him being a victim of sexual abuse as a child at the age of 12. According to research (Mullin, 2009) the age at which abuse occurs in relation to male children has a significant bearing on future offending. Those abused closer to puberty have a much higher percentage (40%) of offending as adults, in contrast to those who have been abused at a younger age (22).
Future treatment needs
Both Dr Wojnarowska and Dr Hall stated in their evidence that the optimum method of treatment for Mr Kyles is group therapy in an intensive sexual offender treatment programme. Although both acknowledged that a treatment programme could be conducted on an individual basis, it was likely to be less effective. As I have mentioned earlier in this decision, Mr Kyles has not completed a sexual offender treatment programme. This is because he has expressed an unwillingness to participate in group therapy. My impression is that his refusal to do so has been treated as an unwillingness on his part to address his sexual deviancy. However, having considered the evidence, I prefer the view taken by Dr Hall that, Mr Kyles suffers from a social anxiety disorder which makes it difficult for him to participate in group therapy. This conclusion is supported by the fact that Mr Kyles expressed to Dr Wojnarowska the fact that he 'related better to children'. He has also pleaded guilty on each of the occasions he has been charged, which indicates some remorse on his part for his offending.
Dr Hall's evidence was that he recommended Mr Kyles be given antidepressant medication and counselling to address his social anxiety disorder. In the meantime, he recommended an individual sex offender programming treatment. Dr Hall then recommends that if sufficient progress is made in treating Mr Kyles's social anxiety disorder, that his sexual offending treatment be progressed to group therapy.
As a result of a request from me for further evidence, Ms Joanne Collyer, psychologist of the Department of Corrective Services, gave evidence stating that if an order was made under the Act then arrangements could be made for Mr Kyles to receive an individual assessment and if the assessment confirms the diagnosis and recommendations of Dr Hall, then a programme could be implemented on an individual basis to address Mr Kyles's social anxiety disorder.
Conclusion
In deciding whether a continuing detention order or a supervision order should be
Having considered all the material presented to me and taking into account the factors listed in s 7(3) of the Act, I conclude that the evidence establishes overwhelmingly that there is an unacceptable risk that, if Mr Kyles was not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. Accordingly, I conclude that Mr Kyles is a serious danger to the community for the purposes of s 17.
In my earlier decision of The Director of Public Prosecutions (WA) v TJD, I identified factors that need to be taken into account whether the court should make a continuing detention order or a supervision order. The paramount consideration remains under s 17(2) of the Act, the need to ensure adequate protection of the community.
I conclude that on the evidence before me that until Mr Kyles has completed an intensive sex offender treatment programme and has made progress in relation to his paedophilic tendencies, it is inappropriate to make a supervision order. Until Mr Kyles receives such treatment to release him on a supervision order would pose an unacceptable risk to the community. I reach this decision reluctantly as Mr Kyles has spent nearly 20 years in prison.
Orders
The order made is that Mr Kyles is be detained in custody for an indefinite term for control, care and treatment. Of course, under the provisions of the Act this order will be reviewed as soon as practicable after the end of a period of 12 months.
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