Director of Public Prosecutions (WA) v Kyles [No 2]
[2012] WASC 187
•24 MAY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- KYLES [No 2] [2012] WASC 187
CORAM: HALL J
HEARD :24 MAY 2012
DELIVERED : 24 MAY 2012
PUBLISHED : 1 JUNE 2012
FILE NO/S: MCS 4 of 2011
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
DENNIS GEORGE KYLES
Respondent
Catchwords:
Dangerous sexual offenders - Continuing detention order - Annual review - Turns on own facts
Legislation:
Nil
Result:
Respondent remains a serious danger to the community
Expressly decline to rescind continuing detention order
Category: B
Representation:
Counsel:
Applicant: Mr T B L Scutt
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 Kyles [2011] WASC 131
HALL J: On 16 May 2011 Commissioner Sleight made an order that the respondent be detained in custody for an indefinite term for control, care and treatment pursuant to s 17 of the Dangerous Sexual Offenders Act 2006 (WA). On 24 May 2012 the first annual review of the detention order was conducted before me. At the conclusion of the hearing I determined that the respondent remained a serious danger to the community and expressly declined to rescind the continuing detention order pursuant to s 33(2) of the Dangerous Sexual Offenders Act. The reasons for that decision are as follows.
The respondent has a lengthy history of committing sexual offences against children. The details of his past criminal history are set out in the decision of Commissioner Sleight: Director of Public Prosecutions (WA) v Kyles [2011] WASC 131. Terms of imprisonment imposed for those offences were due to expire on 18 May 2011. Prior to his release an application was made by the DPP for a continuing detention order under the Act. Having considered the material presented to him, Commissioner Sleight concluded that there was an unacceptable risk that the respondent would commit further offences of a serious sexual nature if he was not subject to a continuing detention order. His Honour also said that until the respondent completes an intensive sex offender treatment programme and has made progress in relation to his paedophilic tendencies it was inappropriate to make a supervision order.
Where a person is subject to a continuing detention order the DPP is obliged to apply to this court for the detention to be reviewed as soon as practicable after the end of a period of one year after their detention on the order commences: s 29 of the Act. Annual reviews must also be held following each further period of one year during which the person remains in detention. By application dated 9 February 2012 the DPP sought that the respondent's detention be reviewed as soon as practicable after 18 May 2012.
On 10 February 2012 McKechnie J made orders in regard to the review. On that occasion his Honour was advised that the respondent was currently enrolled in an intensive sex offender treatment programme which was scheduled to finish in mid July 2012. A deferral of the review would not be consistent with the requirement in s 29 that a review be carried out as soon as practicable after the expiry of one year under the order. It would also have the effect of setting back any subsequent annual reviews.
In these circumstances it was proposed by the DPP that there be an on‑the‑papers review on the anniversary date or shortly thereafter, that there be no psychiatrist appointed for that review but that the DPP would concede that if the respondent completed the intensive sex offender treatment programme the DPP would not oppose an application under s 30 for an exceptional circumstances review. This would leave open the possibility that the respondent could apply to the court for a review of his detention following his completion of the programme and prior to the next scheduled annual review. This course was agreed to by counsel appearing on behalf of the respondent.
McKechnie J made orders that the annual review be held on 24 May 2012, that no psychiatric examination and report was to be prepared for the annual review having regard to the respondent's current participation in the treatment programme which would not be complete until July 2012 and that the DPP was to file and serve a report from an officer of the Department of Corrective Services detailing any matters of relevance with respect to the respondent's care, control or treatment that had arisen since 16 May 2011.
On the hearing of the review I was provided with a book of materials which was received into evidence. That book contained a treatment assessment report by Mr David Summerton, a psychologist, dated 3 August 2011, individual management plans from the Department of Corrective Services dated 14 November 2011 and 23 April 2012 and a psychological assessment from Mr Nigel Cameron, a clinical and forensic psychologist, dated 3 May 2012.
Mr Cameron's report concludes that the respondent has shown solid improvement in the previous twelve months. This was reflected in his willingness to participate in a treatment programme. However, whilst he had shown increased capacity for understanding treatment concepts, Mr Cameron concluded that the respondent would need considerable guidance and support in making treatment gains and translating them into tangible application in real life. In particular, the respondent was not yet able to identify concrete strategies for identifying risk scenarios or removing himself from them.
The reports from the Department of Corrective Services confirmed that the respondent continues to participate in an intensive sex offender treatment programme with an expected completion date of 13 June 2012. He is reported to be doing well with satisfactory levels of participation and genuine attempts to address his past offending behaviour and to understand himself better.
My conclusion, based upon the materials received, is that whilst the respondent is making positive steps to address his behaviour, it is too early to determine whether the benefits flowing from participation in a treatment programme will translate into lowering of risk. This is an assessment that can only be made following completion of the treatment programme.
On the hearing of the review it was conceded by counsel who appeared for the respondent that there was as yet no evidence upon which the court could conclude that it was appropriate to rescind the continuing detention order under s 33(2)(b) of the Act. On my assessment of the materials presently available that concession is correct.
I find that the respondent remains a serious danger to the community and accordingly expressly decline to rescind the detention order.
1
1