Director of Public Prosecutions (WA) v Kyles [No 3] - [2013] WASC 242

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- KYLES [No 3] [2013] WASC 242

CORAM: JENKINS J

HEARD: 5 JUNE 2013

DELIVERED : 6 JUNE 2013

PUBLISHED : 24 JUNE 2013

FILE NO/S: MCS 4 of 2011

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
DENNIS GEORGE KYLES
Respondent

Catchwords:

Dangerous sexual offenders - Second annual review of continuing detention order - Supervision order

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 17, s 33

Result:

Respondent remains a serious danger to the community
Supervision order made

Category: B

Representation:

Counsel:

Applicant: Mr D J Thiering
Respondent: Mr D J McKenzie

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: David McKenzie

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

Nil

JENKINS J:
(These reasons were delivered orally and have been edited from the transcript. Portions of the reasons have been suppressed to protect the identities of victims.)

On 16 May 2011 Commissioner Sleight made an order that the respondent be detained in custody for an indefinite period for control, care and treatment pursuant to the Dangerous Sexual Offenders Act 2006 (WA) s 17 (the Act). On 24 May 2012 Hall J, after the first annual review of the detention order, determined that the respondent remained a serious danger to the community and his Honour declined to rescind the continuing detention order.
On 5 June 2013 I held the second annual review of the detention order. The Director of Public Prosecutions (the Director) submits that the evidence establishes that the respondent's risk of re‑offending may be adequately managed by release on a supervision order and thus he is not in a position to argue that the continuing detention order should be continued. The Director maintains that I should find that the respondent remains a serious danger to the community. The respondent also accepts that I should find that he remains a serious danger to the community and submits that his risk of re‑offending can now be sufficiently managed by his release into the community on a supervision order.
These are my reasons for deciding that the respondent remains a serious danger to the community, rescinding the continuing detention order and making a supervision order.
The evidence before me comprised the evidence that was before Commissioner Sleight and Hall J. In addition I had before me an intensive sex offender treatment programme completion report, a dangerous sex offender treatment progress report, a psychiatric report completed by Dr Mark Hall, a consultant forensic psychiatrist, a community supervision assessment report and some other documents prepared by the Department of Corrective Services (the Department). All of these documents have been prepared since the conclusion of the first annual review. In making my decision I have also taken into account the reasons for the decisions of Commissioner Sleight and Hall J. The respondent's background up until May 2012 is set out in those reasons and I do not intend to repeat it.
The respondent has been in custody, principally under sentence for sexual offences, since December 1992, which is a period of over 20 years. The terms of imprisonment under sentence expired on 18 May 2011. Since then he has been kept in custody under orders made pursuant to the Act. He is now 61 years of age. 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 completed an intensive sex offender treatment programme and had made progress in relation to his paedophilic tendencies, it was inappropriate to make a supervision order.
When the review came on for hearing before Hall J the respondent was engaged in the intensive sex offender treatment programme and it was scheduled to finish in mid July 2012. His Honour decided that an adjournment of the review until the programme was completed was not appropriate. His Honour noted that Mr Nigel Cameron, a clinical and forensic psychologist, had concluded that the respondent had shown solid improvement in the previous 12 months but that he would need considerable guidance and support in making treatment gains and translating them into tangible application in real life. His Honour also noted that the respondent was doing well in the intensive sex offender treatment programme and was making genuine attempts to address his past offending behaviour and to understand himself better.
His Honour concluded that whilst the respondent was making positive steps to address his offending behaviour, it was too early to determine whether the benefits flowing from participation in a treatment programme would translate into lowering his risk of re‑offending. His Honour said that this was an assessment that could only be made following the completion of the treatment programme and, thus, his Honour expressly declined to rescind the continuing detention order.
The intensive sex offender treatment programme completion report dated 18 June 2012 stated that on 1 June 2012 the respondent completed the programme at the Bunbury Regional Prison. In summary, he met all programme objectives, made some treatment gains, was observed to gain a greater understanding of the factors underlying his offending and demonstrated a greater acceptance of responsibility for his offending behaviour. During the programme the respondent was given the opportunity to develop a self‑management plan, which is a plan to develop a balanced lifestyle by setting pro‑social goals in a range of areas. Overall, the respondent's self‑management plan appeared generally appropriate should he choose to implement it as planned when released into the community.
Persisting risk factors for the respondent were identified as being alone with children, alcohol abuse, emotional management, low self‑esteem and relationship problems. It was noted that the respondent had put forward plans and strategies to address these issues and was receptive to receiving professional support in the community if these areas of risk arose in his life. This was a considerable improvement since Commissioner Sleight's decision.
The authors of the report recommended that when released the respondent should:
(1)abide by any victim mediation unit agreements currently in place;
(2)not have unsupervised contact with children, either male or female, under the age of 16 years;
(3)participate in the community based sex offender maintenance programme;
(4)engage in a substance use programme or counselling for relapse prevention; and
(5)participate in community based psychological counselling to further address areas of relationships, self‑esteem and emotional management.
The dangerous sex offender treatment progress report prepared on 13 May 2013 by Mr Ryan Bell, clinical psychologist, reported that after the respondent completed the intensive sex offender treatment programme, those involved in treating him noted that he still had limited victim empathy, remained defensive and impressed as being naïve as to the complexities of managing his deviant sexual interests.
In order to meet these treatment needs the respondent, whilst he has been in custody, has engaged in individual counselling from 2 August 2012 to date on a weekly basis with Mr David Summerton, a clinical psychologist. The counselling has focused on the following areas:
(1)development of insight into the presence and extent of sexual deviance;
(2)development of risk management strategies to manage his sexual arousal;
(3)development of risk management strategies to manage drinking and substance abuse;
(4)development of greater appreciation for the thoughts and feelings of his victims; and
(5)development of a release preparation plan.
It is reported that the respondent has engaged willingly and has generally responded well to treatment. He has shown some insight about risk factors related to his offending. He has spontaneously spoken about the impact that his offending was likely to have had on his victims. He was able to identify several risk scenarios which may precipitate the emergence of deviant thought. He was able to outline a specific and detailed behavioural plan which he would employ to deal with such scenarios. He has spoken openly and honestly about his social anxiety, his concerns related to his release conditions, his capacity to meet the demands placed on him to meet these conditions and other aspects of life outside of prison.
It was noted that the respondent has also demonstrated a great deal of commitment towards identifying his further treatment needs and ensuring that these needs were met. He was aware that past depression had been a trigger for his offending. He has stated that he would be interested in ongoing psychological intervention to help ensure that he does not lapse into another depressive episode and to manage his ongoing concerns with anxiety. He was prepared to attend a community based sex offender maintenance programme and a community based substance abuse programme should he be released. This was regarded as a considerable step forward as historically the respondent had resisted intervention and had approached therapy with reluctance.
Although these gains had been demonstrated it was noted that the respondent would require ongoing counselling and intervention to help incorporate them and to ensure that they persisted. As to other community support, the respondent had formed a relationship with Outreach, a community based organisation which assists newly released prisoners to integrate into society, and had stated that he hoped to continue to attend ongoing counselling with them. However, he had limited other community support apart from a long term female friend. It was noted that the respondent would require ongoing psychological intervention to help him adjust to life outside of prison. It was noted that the respondent had a good relationship with Mr Summerton and that the respondent had said that he would be very interested in continuing to attend sessions with him.
Dr Hall was one of the psychiatrists named by the court to prepare a report for the original application that the respondent be declared a dangerous sexual offender. He re‑examined the respondent on 10 May 2013 for the purpose of this review and he gave oral evidence at the hearing of it. Dr Hall noted that during his interview with the respondent the respondent was able to identify matters that he believed had contributed to his offending. Although the respondent remained averse to the term 'paedophile', he accepted that he satisfied the defining criteria on the basis of his behaviour and acknowledged his sexual attraction to children.
In respect of the causes of his offending, the respondent referred to sexual abuse as a child, loneliness, anger at his ex‑wife and alcoholism. In respect to his current attitude towards alcohol, the respondent told Dr Hall that he did not want to drink again and that he realised that it was alcohol that had got him into trouble on prior occasions.
The respondent told Dr Hall that he had been prescribed an antidepressant of the selective serotonin reuptake inhibitor class (SSRI medication) for treatment of his social anxiety disorder. He reported that the SSRI medication had reduced his anxiety significantly, he was able to talk to adults without as much difficulty and experienced improvement in and stabilisation of his mood. However, six weeks prior to his interview with Dr Hall the respondent had stopped taking the SSRI medication due to his concerns over side effects.
In order to update his risk assessment Dr Hall used the Static‑99R and the RSVP. Dr Hall noted that at the time of the original hearing before Commissioner Sleight the respondent was assessed using Static‑99 and his score placed him in the high risk category. The updated assessment placed him in the moderate to high risk category, which reflected a reduced risk of re‑offending. This was due to the respondent's advancing age and the updated norms incorporated into the Static‑99R, a revised edition of the Static‑99. In evidence Dr Hall said that it was well documented that the risk of sexual re‑offending reduced significantly after the age of 60 years and continued to decrease as the subject aged.
In respect to Dr Hall's assessment using the RSVP, he noted that the respondent possessed a large number of risk factors which remained unchanged from earlier assessments given their historical nature. However, in the domain of Psychological Adjustment Dr Hall noted that the respondent had made significant progress. In Dr Hall's opinion he no longer possesses the risk factor of extreme minimisation or denial of sexual violence. The respondent has begun to challenge his cognitive distortions around issues of consent, morality and children as sexual beings and, as a consequence, attitudes that support or condone sexual violence were no longer considered a significant risk factor. His self‑awareness had improved considerably with increasing acceptance of his diagnosis of paedophilia and much improved insight into the persistence of his vulnerability to alcoholism and the need to abstain in the future.
Under the heading of Mental Disorder Dr Hall noted that the risk factor of major mental illness is now less relevant insofar as the respondent's social anxiety disorder has been treated to the extent that he was able to complete a sex offender treatment programme. However, it remains partially relevant insofar as contributing to his vulnerability to the use of alcohol, the use of avoidant coping strategies generally and a predilection for the company of children over adults generally. Dr Hall also noted the problems with substance abuse remains a risk factor given the reliable association between the respondent's offending and intoxication with alcohol.
Under the heading of Manageability Dr Hall said the respondent's previous problems with planning and problems with treatment had largely been addressed. Under the heading of Scenario Planning Dr Hall said that if the respondent re‑offended, the likely victims would be children known to him and with whom he enjoys both trust and proximity. The children of any adult with whom he has a close relationship would be at particular risk. Any offence was most likely to occur in the context of relationship conflict, low self‑esteem, anger and/or the use of alcohol.
Dr Hall concluded by saying that the respondent has made considerable progress in the areas of sex offender treatment, his psychiatric condition and approach to placement in the community. Dr Hall observed that it was pleasing that his commitment to change had been sustained and had resulted in a real reduction in his risk in comparison to the level of risk present when he was first declared a dangerous sexual offender.
Dr Hall said that should the court make a supervision order, then for the purpose of ensuring the adequate protection of the community and the rehabilitation or care or treatment of the respondent, he recommended that the court consider applying conditions which required:
(1)the resumption of treatment with antidepressant medication;
(2)participation in a community‑based sex offender maintenance programme;
(3)ongoing individual psychological counselling with the dangerous sexual offender psychology team;
(4)prohibition of alcohol consumption;
(5)random breath analysis for the detection of alcohol use;
(6)substance abuse counselling;
(7)regular reporting and random home visits;
(8)electronic GPS monitoring; and
(9)adult supervision of any access to children under the age of 16.
On 24 May 2013, Ms Julie Dabala, senior community corrections officer with the Public Protection Unit of the Department, completed a community supervision assessment in respect of the respondent. Ms Dabala also gave evidence at the review hearing. The assessment advised that the respondent's initial proposal was that he reside with a long‑term female friend in her home. However, when this placement was investigated, it was discovered that his friend had children who visited her and this made it inappropriate for the respondent to reside there.
The respondent's friend's son, who is apparently a law‑abiding member of our community, was identified as being prepared to have the respondent live with him in his Department of Housing property. Mr D, as I will call him, has known the respondent for a long period of time and has visited him regularly whilst he has been in custody. He is 42 years of age, single, and does not have children. He has some health problems, but he does not drink alcohol.
There are two potential problems with this accommodation. The first is that it cannot be a long term placement. This is because of the tenancy arrangement between the Department of Housing and Mr D. The other potential problem is the proximity of the property to a public school.
In respect of the first issue, Ms Dabala said that once the respondent was in the community, it would be a lot easier for him to find suitable alternative accommodation. She testified that the respondent would not be thrown out onto the street from Mr D's property and she appeared confident that in the medium term other suitable accommodation could be found for him once he was in the community.
In respect of the second issue, Ms Dabala and Dr Hall were of the opinion that the risk of the respondent being close to a school would not be as great as it would be in respect of some other offenders because most of the respondent's victims had been [suppressed] who he was able to groom over a period of time. Further, the risk could be reduced by GPS tracking. Ms Dabala said that the GPS would set off an alert if the respondent went into an exclusion zone, such as the school.
I note that the assessment details attempts by the Department to obtain alternative suitable accommodation for the respondent and either none could be found or it was unsuitable whilst the respondent was in custody. As I have said, it is easier to obtain accommodation when a person is in the community and able to take up accommodation immediately. It is also noted that the proposed accommodation with Mr D is 'transitional, short term accommodation only' until the respondent is able to source private accommodation with the assistance of his friend, the Department's Public Protection Unit or Outreach.
Another matter that I have taken into account, which is referred to in the assessment, is the proximity of other children in the neighbourhood. There is a reference in the assessment to one of Mr D's neighbours having younger children. However, it is noted that in May an eviction notice had been served on this neighbour and, therefore, it could be assumed that this neighbour would be moving out. That is a matter which has provided me with some comfort in placing the respondent in Mr D's property.
The assessment then sets out a list of proposed supervision order conditions, which are 47 in number. They are very stringent and will ensure that there is very close supervision of the respondent at all times whilst he is on a supervision order.
In summary, these conditions will require the respondent to:
(1)reside at Mr D's address or at a different address with the permission of his Community Corrections Officer (CCO);
(2)report to a particular CCO who is responsible for the supervision of dangerous sexual offenders. The CCO will see him weekly, and it could be more often if that was deemed required. The CCO, I am told, will also make home visits;
(3)comply with the directions of the CCO in respect of a very broad range of matters, such as employment, attendance at programmes or treatment and other directions to ensure that the supervision order is enforced;
(4)consult and engage with any psychiatrist or other medical practitioner, mentor, support service and/or support person nominated by the CCO. Ms Dabala said that within a week the respondent would have a further appointment with Mr Summerton and that his counselling with Mr Summerton would continue on a regular basis;
(5)report to the officer in charge of the Sex Offender Management Squad of the Western Australian Police Service 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. The respondent would also be required to comply with all obligations imposed on him pursuant to the Community Protection (Offender Reporting) Act 2004 (WA). He would be required to report to the police within 48 hours and there would be ongoing obligations to the police. The police would also visit the respondent on occasions;
(6)comply with a curfew;
(7)not have any contact with his victims;
(8)not commit any sexual offence, any other criminal offence where the maximum penalty includes imprisonment and which involves either violence, threats of violence, or the possession of weapons or offensive instruments, any offence in ch XXII of the Criminal Code (WA) which relates to obscenity, indecency, showing offensive material to children under 16, using electronic communication to procure or expose indecent matter to a child, any offence under ch XXV of the Criminal Code relating to child exploitation material, and any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA);
(9)not possess, consume or use any prohibited drugs or substances;
(10)not associate with known sex offenders;
(11)not possess, consume or use alcohol;
(12)attend for and submit to any testing for alcohol or prohibited drugs as directed by the CCO or a police officer;
(13)not have any contact with a child under the age of 16 by any means unless the contact is authorised in advance by the CCO and such conduct is supervised at all times by an adult approved in advance by the CCO or the conduct is necessary to complete a commercial transaction and another adult is present;
(14)report to his CCO the formation of any domestic or other intimate relationship by him with a person who has children under the age of 16 years in their care, either full‑time or part‑time; and
(15)make full disclosure regarding his past offending and his current supervision order to anyone with whom he commences a domestic or other intimate relationship.

I was advised in evidence that the respondent had recommenced taking the SSRI medication and that he would continue to do so as long as it was prescribed for him. Therefore, Dr Hall's recommendation that he resume treatment with antidepressant medication will be met on the supervision order.
The proposed conditions do not give details of the proposed participation of the respondent in a community based sex offender maintenance programme as recommended by Dr Hall.
I was advised by Ms Dabala in evidence that the community based sex offender maintenance programme had been suspended for a couple of months due to facilitators not being available. However, since the hearing, I have received advice from the Department by email (exhibit 4) that the programme is running on a fortnightly basis. The respondent, once released, will be assessed for his suitability for inclusion in the programme. If he is deemed to be suitable, then he will commence it immediately.
Dr Hall gave evidence that this programme, in conjunction with the evidence that the respondent will continue to receive counselling from Mr Summerton, satisfied his recommendation that the respondent participate in a community‑based sex offender maintenance programme.
I was advised in evidence that the respondent will have ongoing psychological counselling with Mr Summerton on a weekly basis. This satisfies Dr Hall's recommendation that he have individual psychological counselling.
The proposed conditions meet Dr Hall's recommendation that there be a prohibition on alcohol consumption. Ms Dabala said that random breath analysis for the detection of alcohol use would be carried out by the police.
There is nothing in the proposed conditions mandating substance abuse counselling and Ms Dabala said that in discussions with Mr Summerton it had been decided that substance abuse counselling will be provided by Mr Summerton. Mr Summerton will advise the CCO if a referral is needed to an independent or separate organisation, such as Holyoake, for further counselling. Dr Hall testified that this arrangement met his recommendation for substance abuse counselling.
Pursuant to the supervision conditions, there will be regular reporting and random home visits by the CCO and the police as recommended by Dr Hall. There will be electronic GPS monitoring or tracking of the respondent. This is very important as it provides a level of supervision not able to be provided before the Department introduced it earlier this year. Ms Dabala explained that the system can be set so that certain geographical areas are excluded. If the respondent should enter into one of these areas, such as a park or a shopping area, the system will send an alert to that effect so that the authorities will know, as I understand it, in close to real time that a breach has occurred.
The draft conditions of the supervision order also provide for adult supervision of any access to a child under the age of 16 as recommended by Dr Hall. I raised with Ms Dabala whether the conditions of the supervision order should include a provision that the respondent be prohibited from going onto or loitering around the grounds of the school which will be closest to him.
Ms Dabala expressed concern that if that was a condition, it might imply that the respondent was able to go to other schools or other public areas that were not specifically named in the conditions even though the CCO may have excluded him from going to such areas. I concede that there is a possibility for such confusion, but, in my view, it is very important for the respondent to be explicitly told that he is not to go onto or loiter around the grounds of schools, in particular, that which is closest to him.
Therefore, I would not be prepared to release the respondent on a supervision order unless it contained such a condition worded similarly to the following:
Not go onto the grounds of any school for children under the age of 16 years or loiter around such grounds. The grounds of a school includes the verge on the side of a road which is adjacent to the grounds of a school. This condition does not limit the power of a CCO to give a direction for the purpose of another condition.
For the sake of clarity, the conditions should also include a condition which states something to the effect of 'comply with any direction given by a CCO not to go to or be on a particular property, in a particular area or at a particular location'. I note that there is no specific condition to this effect in the draft conditions. The condition relating to electronic monitoring simply requires the respondent to be subject to electronic monitoring. It does not prohibit the respondent from going to any particular place.
I now turn to the decisions I am required to make on the review. The Act provides that I must rescind the continuing detention order if I do not find that the respondent remains a serious danger to the community: the Act, s 33(1). I am satisfied the respondent remains a serious danger to the community. Given the respondent's extensive record of serious sexual offending against children, even though it all occurred over 20 years ago, the fact that his steps towards rehabilitation have not been tested by time spent in the community and that he has not remained offence‑free in the community for a significant period of time, I am of the same view as Commissioner Sleight and Hall J in this respect.
Having found that the respondent remains a serious danger to the community, I may either expressly decline to rescind the continuing detention order or rescind the order and make a supervision order. In making that decision, the paramount consideration is to be the need to ensure adequate protection of the community: the Act, s 33(2) and s 33(3).
Having regard to the list of the following matters, I am prepared to rescind the continuing detention order and make a supervision order. The matters that I have relied upon in making this decision are as follows:
(1)The Public Protection Unit of the Department, which is the unit set up by the government to assess dangerous sexual offenders, supports the making of a supervision order.
(2)The Director, having regard to the opinion of Dr Hall and the views of the officers of the Department, does not argue against the making of a supervision order.
(3)Dr Hall is of the view that if a supervision order is made with appropriate conditions, the risk of the respondent re‑offending can be appropriately dealt with in the community.
(4)Since the respondent was declared a dangerous sexual offender, he has completed the intensive sex offender treatment programme and received a positive report from those who run the programme.
(5)Since completing the intensive sex offender treatment programme, the respondent has had weekly counselling with Mr Summerton and has continued to make treatment gains.
(6)As a result of the programme and the counselling, the respondent has greater insight into the causes of his offending, greater victim empathy, and has a positive plan for his conduct whilst he is in the community. His risk of re‑offending has decreased.
(7)In the community, the respondent will be residing with a single man, without children, who does not drink alcohol.
(8)In the community, the respondent will have support from Mr D and his mother, both of whom are long‑term friends of the respondent and who are aware of his past offending.
(9)The respondent will also have support from Outreach and his CCO.
(10)The respondent will be required to report to his CCO and the officer in charge of the Police Sex Offender Management Squad and to comply with all obligations imposed on him by them. His supervision by his CCO and the police will ensure close supervision of him whilst he is in the community.
(11)The respondent will not be living with or be in day‑to‑day contact with children. I note that in respect to his prior offending, apart from perhaps his initial offence in 1970, all the respondent's victims [suppressed]. As Dr Hall has concluded, it is reasonable to assume that the risk of future offending would be with similar victims. Thus, in managing that risk in the community, it is important to ensure that the respondent does not develop or have the opportunity to develop any relationships with adults who have young children; that he does not live with children or in a house that has children visiting it regularly; and that he does not have the opportunity to befriend children. Having regard to all the conditions which are proposed to be included in the supervision order, I am satisfied that none of these situations will occur without it coming to the notice of those who will be supervising the respondent well before there is any opportunity for the respondent to re‑offend.
(12)The respondent will be required to continue to have counselling with Mr Summerton and to take SSRI medication in order to decrease his risk of re‑offending.
(13)There will be a curfew during the first six months that the respondent is in the community to ensure that he does not go to places at night where he can access alcohol.
(14)The respondent will be subject to electronic monitoring so that he will not be able to go to any place children frequent without the knowledge of the authorities.
(15)The respondent will not be able to consume alcohol and that prohibition will be monitored by appropriate testing. The consumption of alcohol is a significant risk factor.
(16)The respondent will not be able to have unsupervised contact with a child.
(17)The respondent will be required to attend the community‑based sex offender maintenance programme in order to reduce his risk of re‑offending.
(18)The respondent is now older than 60, and according to Dr Hall, the risk of a person re‑offending over this age decreases and continues to decrease as they age.
(19)The supervision order will be for a period of five years, which, according to Dr Hall, is at the outside of the length of a supervision order which is required to ensure that the community is protected.
(20)The supervision order includes all the recommendations of the authors of the reports which I have received for conditions to be included in such a supervision order for the protection of the community.
For these reasons, I make the finding, under the Act, s 33, that the respondent remains a serious danger to the community. In the exercise of my discretion under s 33(2), I rescind the continuing detention order made on 16 May 2011 and make an order that at all times for the period of five years commencing from his release on the order, when the respondent is not in custody, he is to be subject to the conditions in the minute that I will approve and sign after it has been discussed by me with counsel and has finally been settled by me.