Director of Public Prosecutions (WA) v Misko

[2012] WASC 259

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MISKO [2012] WASC 259

CORAM:   McKECHNIE J

HEARD:   5 JULY 2012

DELIVERED          :   5 JULY 2012

FILE NO/S:   DSO 2 of 2012

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

JOHN TERRY MISKO
Respondent

Catchwords:

Dangerous sexual offender - Whether serious danger to community - Declined ISOTP on three occasions - Whether supervision order appropriate - No new principles

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 7

Result:

Declare respondent is a serious danger to the community
Order detention in custody for an indefinite term for control, care and treatment

Category:    B

Representation:

Counsel:

Applicant:     Mr A L Troy

Respondent:     Mr D J McKenzie

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     David McKenzie Legal Pty Ltd

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

Nil

McKECHNIE J: 

How this matter comes to court

1. The Director of Public Prosecutions (DPP) applies for orders that the respondent John Terry Misko be declared a dangerous sex offender and detained in custody.

2. The DPP filed two books of material which were tendered by consent.  Prior to the hearing I had read all the material.

The respondent's background

1. Mr Misko was born on 17 December 1968 and is now 43.  His birth was difficult.  From an early age (as reported in hospital notes) he showed inappropriate sexual interest.

2. He commenced offending as an 11‑year‑old and by the age of 20 had been dealt with for lighting many fires.  His other offending, though relatively minor, has been persistent and includes acts of violence and dishonesty.

3. A characteristic has been assaulting or resisting police officers and in the past has shown attitude to those in authority though in this he does appear to have mellowed.

4. The respondent's background is summarised by Dr Wojnarowska (vol 2 page 659 ‑ 662).

Sexual offences

1. His first sexual offence occurred on 5 February 1993.  His second sexual offence occurred on 15 May 1994 and his third sexual offence occurred on 13 August 1997.  On New Years Day 1998, his fourth sexual offence was committed.  The offending chiefly occurred within a relatively short time after being released from custody.  Clearly prison had no great inhibitory effect.

2. For the offence committed on 15 May 1994, Mr Misko was sentenced to a term of 8 months' imprisonment on 11 August 1995.

3. The offence of 5 February 1993 was not solved until 1998 when the respondent's DNA profile was obtained matching that of the offender.

4. For that and the other sexual offences, Mr Misko was sentenced by Fenbury DCJ to a total of 20 years' imprisonment on 23 September 1999 backdated to 20 March 1999.

5. While in custody he declined to participate in the legal and social awareness course.  He has also declined two offers of participation in the intensive sex offender treatment programme (ISOTP).

6. This is consistent with the attitude he expressed to Dr Wojnarowska, and Dr Hall, effectively denying his involvement in any of the offences as criminal conduct.

Serious danger to the community

1. In assessing whether the respondent is a serious danger to the community as defined in the Dangerous Sexual Offenders Act 2006 s 7, I have regard to the applicable criteria set out in s 7(3).

(a)     reports of psychiatrists

1. The reports commissioned by the court from the psychiatrists, Dr Wojnarowska and Dr Hall, are similar in the conclusions they reach.  For the reasons outlined in their comprehensive reports, and amplified by their evidence, each is of the view that the respondent is at high risk of re‑offending if released into the community.  Dr Wojnarowska would not commit to a definition of 'very high' because she has no knowledge about his inner thoughts and attitudes or sexual drive.  This lack of knowledge is relevant both to the question whether he is a serious danger to the community and whether he should be detained in custody or released on supervision.  It comes about because of the superficial response by the respondent, his inconsistent answers and his denial or minimisation of offences.  As a result she could not establish any risk factors that could be addressed in treatment.

2. Dr Hall's opinion is that the respondent is at high risk of re‑offending sexually.  The essence of his risk relates to the nature and extent of his prior history of sexual offending, some of which occurred whilst under community supervision, his denial of offending and addressing treatment needs and lack of self‑awareness.  The latter particularly applies to factors contributing to his offending, his history of alcohol dependence and an appreciation of the challenges of remaining sober.  He lacks a relapse prevention strategy and is as yet untested in the community.

(b)     any other medical, psychiatric, psychological or other assessments

1. There have been many reports on the respondent over the years, from childhood onwards, including reports from hospital, the McCall Centre and later from Corrective Services.

2. He has had engagement with DSC from whom there are also reports over the years until he requested no further involvement.  The first sex offence occurred shortly after the consequent withdrawal of services.  All paint a picture of a low functioning individual with many treatment issues.  He has cognitive impairment and is intellectually disabled. 

(c)     propensity

1. There is no specific indication of a propensity.  The respondent has not displayed entrenched deviant sexual behaviour.

(d)     pattern

1. There is a pattern to offending in that the respondent targeted vulnerable women and has undertaken a degree of preparation for the offences.  They are however essentially opportunistic.

2. This is not a decisive criterion.  Rather it indicates the cohort that might be targeted by the respondent in the future.

(e) & (f) rehabilitation programme and its effect

1. The respondent has done nothing in this regard.  It is noted in Mr Bell's report (vol 2 page 715) the respondent has consistently declined to participate in the ISOTP.  Participation in the course - with assistance - is regarded as essential by Dr Wojnarowska and Dr Hall, although in their opinion there are other matters that also have to be addressed before supervision in the community could be considered.

2. The respondent has not addressed his alcoholism.  This is relevant as a triggering event for his past offences was intoxication.  His view that he will control his alcohol intake through willpower gives no confidence.  As the respondent has done nothing there has been no positive effect from any programme.

(g)     antecedents and criminal record

1. The respondent's antecedents are not good.  His record of non‑sexual offending is significant and future offending might demonstrate a loss of control and be a precursor to further sexual offending.

(j)     any other relevant matter

1. The respondent is now much older.  Twenty years have passed since his first sexual offence.  He is now middle aged.  His weight has ballooned to 143 kg and he has significant health issues, including ischaemic heart disease and diabetes.  He has limited mobility.

2. He has developed a great interest in art.  He may have some family support on release though this is not clear.

Conclusion

1. The psychiatric conclusions as to the respondent's risks were not challenged in cross‑examination which focused on the extent at which that risk might be managed under a supervision order rather than in custody.  The issue whether the respondent is a dangerous sexual offender is not however conceded.

2. I have regard to those opinions and to all of the material, including the circumstances of the offending which are set out by Fenbury DCJ (vol 2 pages 613 ‑ 625).  The evidence leads to an unequivocal conclusion to a high degree of probability that the respondent is a serious danger to the community.

Supervision or detention in custody

1. The least restrictive option should be chosen if possible. In this case the only order that would provide adequate protection to the community is an order under s 17(1)(a), that is an order for detention. In reaching that conclusion I have revisited the matters just outlined, especially the opinion of the psychiatrists and the other relevant factors: s 7(3)(j). Those latter factors do tend to lessen the risk that the offender poses to a degree.

2. But as Dr Wojnarowska says there is too much unknown about the respondent's motivations and inner control.  This is a point echoed by Dr Hall in his oral evidence that supervision is not sufficient because, amongst many other reasons, the respondent does not know why he offends or why he drinks.  Without those matters being explored there is a heavy weighting against any of the other supervisory measures being successful.

3. Mr McKenzie, with his usual industry, points to some positives arising from the ARMIDILO test administered by Dr Wojnarowska.  There would be, he argues, a tendency to compliance with management because the respondent seeks to please those in charge.

4. The respondent, in his own words has, 'mellowed out'.

5. I note that some support for this is found in the oral testimony of Dr Hall.

6. Mr McKenzie submits that the respondent has said he has a low libido.  I discount this assertion.  The respondent is a demonstrated unreliable reporter.  I place no weight on his assertion about his libido.  Because he has been unforthcoming generally on his innermost thoughts and desires, no‑one knows. 

7. Mr McKenzie also refers to the amount of supervision and assistance that would be available.  Accommodation has been secured even though funding is not yet approved.

8. Additionally, the respondent would receive supervision and assistance from SOMS, Community Corrections and the DSO psychology team.

9. While I acknowledge these matters have some force, the fundamental difficulty for the respondent in the way of a supervision order is that identified by both psychiatrists.

10. Other reasons why supervision at this stage is impractical include the lack of realistic plans for the future, or a viable relapse prevention strategy. 

11. Having regard that the paramount consideration is the adequate protection of the community, whatever conditions may be put into a supervision order are liable to be ineffective in reducing the respondent's risk to the community to an acceptable level.

12. The prospect of release on supervision in the future is unlikely unless the respondent has the capacity, and the desire, to start acknowledging his crimes and engage realistically in resolving his many so far unmet treatment needs.  However, for the present I order:

    1.that the respondent is a serious danger to the community; and

    2.that he be detained in custody for an indefinite term for control, care and treatment.