Director of Public Prosecutions (WA) v Misko [No 3] - [2014] WASC 332

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MISKO [No 3] [2014] WASC 332

CORAM: EM HEENAN J

HEARD: 30 JULY 2014

DELIVERED : 19 SEPTEMBER 2014

FILE NO/S: DSO 2 of 2012

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
JOHN TERRY MISKO
Respondent

Catchwords:

Dangerous sex offender - Second annual review of order

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Expressly decline to rescind order for detention

Category: B

Representation:

Counsel:

Applicant: Ms K Robinson
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):

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Misko [2012] WASC 259
Director of Public Prosecutions (WA) v Misko [No 2] [2013] WASC 300
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297

EM HEENAN J: This is the second annual review of the continuing detention order made by McKechnie J pursuant to s 17(1)(a) of the Dangerous Sexual Offenders Act 2006 relating to the respondent John Terry Misko. That original decision is Director of Public Prosecutions (WA) v Misko [2012] WASC 259. The first annual review of that order was conducted by Simmonds J on 29 July 2014 and resulted in a decision by his Honour which expressly declined to rescind the order: Director of Public Prosecutions (WA) v Misko [No 2] [2013] WASC 300.
At the commencement of the present hearing counsel for the respondent expressly acknowledged that Misko remains a 'serious danger to the community' but submitted that his current circumstances were such that a continuation of the detention order was not warranted and that, instead, Misko should be placed on an Intensive Supervision Order. Consequently, the focus of the present review was upon whether or not the respondent should be placed on an Intensive Supervision Order subject suitable protective conditions. The applicant submitted that this was not warranted and that the court should expressly decline to rescind the existing detention order, whereas the respondent through his counsel submitted the contrary. It will be necessary to outline and consider the evidence adduced at the hearing and the submissions made but, before doing so, a resume of the applicable principles and the background of this offender are necessary.

The legal framework

Pursuant to s 33(1) of the Act, the court is required to determine whether the respondent remains a serious danger to the community. By virtue of s 7 the court must 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' before making such a finding. However, once a finding is made that there is such an unacceptable risk, it follows inexorably that the person will be 'a serious danger to the community' - Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307.
The onus of establishing that an offender is a person who constitutes a serious danger to the community rests upon the applicant and the standard of proof is to a 'high degree of probability' which is something less than a finding of proof beyond reasonable doubt: Director of Public Prosecutions (WA) v GTR [28]. In determining whether there is 'an unacceptable risk' as required by s 7, the court must engage in a balancing exercise and have regard for the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order): Director of Public Prosecutions (WA) v GTR [27]. That requires the court to identify what, if anything, constitutes the risk and what makes it unacceptable and then to consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence. This exercise must be undertaken having regard for the matters set out in s 7(3). The paramount consideration of the court is the need to ensure the adequate protection of the community (s 33(3)) but in determining whether or not to decline to rescind an existing detention order or to make a supervision order the court should adopt the least restrictive alternative which is compatible with the protection of the public: Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297.

Background

Misko's background is recounted by McKechnie J in Director of Public Prosecutions (WA) v Misko [2012] WASC 259. A brief recapitulation is necessary. Misko is now aged 45 years, having been born on 17 December 1968. His delivery at birth was difficult and he accumulated a lengthy series of offences after attaining the age of 11 years. These included the lighting of many fires and persistent, though minor, acts of violence and dishonesty. He committed four sexual offences which occurred, respectively, on 5 February 1993, 15 May 1994, 13 August 1997 and 1 January 1998. These chiefly occurred within a short period after he had been released from custody.
The first offence which was detected was that which had been committed on 15 May 1994 and for which Misko was sentenced to a term of 8 months' imprisonment on 11 August 1995. The other offences were not detected or resolved until 1998 and for them Misko was sentenced to a total of 20 years' imprisonment on 23 September 1999, backdated to take effect from 20 March 1999. While in custody, before the first application under this legislation, he had declined to participate in the Legal and Social Awareness course and had also declined two offers of participation in the Intensive Sex Offender Treatment programme. McKechnie J regarded this as being consistent with the opinion of the psychiatrists, Dr Wojnarowska and Dr Hall, who explained that Misko did not regard his involvement with any of the offences as being criminal.
At the time of the 2012 application McKechnie J accepted the evidence of the two psychiatrists who were of the opinion that too much was unknown about Misko's motivations and inner control. The offending had been associated with excessive drinking and neither the reasons for the offending nor the drinking had been adequately explored, identified or controlled, so the possibility of sufficient supervisory measures being established or successful then remained unknown. Also at that stage McKechnie J regarded the various forms of supervision as being impractical because of a lack of any realistic plans for the future or a viable relapse prevention strategy. His Honour concluded by observing that the prospect of Misko's release under supervision in the future was then unlikely unless he developed the capacity, and the desire, to start acknowledging his crimes and to engage realistically in resolving his many, so far unmet, treatment needs.
In the course of the 2013 annual review it was again conceded on behalf of Misko that he remained a serious danger to the community and the issue then, as now, was whether he should remain in detention or whether his risk could be adequately managed by placing him on an intensive supervision order.
In declining the latter course Simmonds J concluded that:
(a)the respondent continued to demonstrate a lack of insight into the factors contributing to his offending;
(b)nevertheless, then recent changes in the respondent's readiness to acknowledge his offending representing 'the beginning of a possible significant change, but not in itself such a change';
(c)Misko did not have a realistic release plan and his proposed accommodation was unsuitable;
(d)Misko did not have a viable relapse prevention strategy;
(e)he had not participated in any group based sex offender treatment programme but Simmonds J considered that it would be desirable for him to undergo such a programme for which it would necessary for him to transfer to the Karnet Regional Prison;
(f)that individual counselling did not seem sufficiently to reduce the risk of reoffending and Misko's ability to comply with the terms of a supervision order, particularly in the light of his distrust of authorities.

The present review

At this hearing and by consent, a booklet of materials was put in evidence by the applicant. This contained various reports about the respondent and consisted of:
1.Department of Corrective Services charge history - prisoner - 29 July 2013 to 6 June 2014.
2.Department of Corrective Services 'incidents history' - prisoner -29 July 2013 to 6 June 2014.
3.Department of Corrective Services Prison Incident Description Report and Incident Report Minutes relating to incident occurring 20 September 2013 (with identifications of officers' and other prisoners' details redacted).
4.Individual Management Plan 13 January 2014.
5.Department of Corrective Services 'Think First' Programme Completion Report, 6 March 2014.
6.Department of Corrective Services - 'Dangerous Sex Offender Treatment Progress Report' - Dr D Galloghy, 17 July 2014.
7.Dr G Wojnarowska - Psychiatric Report, 9 July 2014.
8.Department of Corrective Services - 'Community Supervision Assessment' by J Dabala, 24 July 2014.
In addition, oral evidence was given by the following witnesses for the applicant, each of whom was cross-examined:
1.Dr G Wojnarowska FRANZCP, the author of the report of 9 July 2014;
2.Dr Dylan Galloghly, psychologist, the author of the report of 17 July 2014;
3.Ms Julie Dabala, the author of the community supervision assessment of 24 July 2014.
Dr Wojnarowska is familiar with Misko's case and had given evidence at the first hearing in 2012. She noted that there was now a significant improvement in Misko's situation in that he had established a good rapport and exchange with the new psychologist who was attending him and that she had been able to discuss with him the desirability of undertaking an Intensive Sexual Offender Treatment Program (ISOTP) on an individual basis. Dr Wojnarowska also explained that more was now known about the nature and extent of Misko's long-standing cognitive disability and his problems and disabilities arising from that condition, which meant that it was impractical for him to undertake an ISOTP in a group session and that he really required a special ISOTP adapted for the needs of the cognitively disabled. She was of the opinion that the extent of his cognitive disability was worse than the authorities had realised in 2012 and that his way of thinking was very concrete and simplistic. She regarded him as having become institutionalised in the prison regime and that continued institutionalisation may increase his risk of future offending. She gave as her opinion that the existing ISOTP was not suitable for Misko because he would quickly decompensate; that he was subject to enormous anxiety; and that he relies more and more on the structure and support provided by the regimentation in prison and is very reliant on the prison staff at Casuarina on whom he has come to depend for being able to obtain regular medical treatment and counselling whenever anxious.
Dr Wojnarowska said that in her opinion Misko had developed some insight into the nature of his offending and into the role of his alcohol consumption when offending but that he is extremely self-focussed and dwells only on how the offending affected him rather than the victims. She expressed the view that Misko would require very close supervision if he were to be released because of his tendency towards violence and an attitude of anger towards women. She was of the opinion that he continued to minimise the extent of his violent behaviour and wrongly denied the existence of feelings of anger towards women. She regarded his ability to cope with stress as decreasing rather than increasing and that he coped with chronic anxiety principally because of the reassurances that he obtained from prison staff and counselling from medical staff. Her opinion was that he would not be able to function in the community without very close support of an entire multi-disciplinary team but that he still represented a high risk of reoffending if he were to be released to the community. This offending was likely to involve the risk of violence, particularly if he resorted to significant alcohol intake.
In Dr Wojnarowska's opinion, if Misko were to be released into the community he would require 24 hours a day seven days a week supervision for at least three months and that supervision of that nature and extent was not available. She regarded the proposal for supervision through the Disability Services Commission as insufficient for Misko and instanced the need for constant close supervision and basic assistance for such elementary matters as the use of credit cards, shopping, doing banking, the use of automatic teller machines and to deal with all the other paraphernalia of routine modern life from which he has been excluded by reason of his constant imprisonment dating back to March 1999. In her view, he needed an ever constant companion for at least one month to have any hope of surviving in the community.
In cross-examination Dr Wojnarowska maintained that there was no programme of the type which she regarded as essential presently available for Misko, whether from the Disability Services Commission, the Department of Corrections or the sexual offenders programme conducted by WA Police.
Dr Dylan Galloghly, the psychologist, was cross-examined upon his report of 17 July 2014. In that report Dr Galloghly set out that since the 2013 annual review Misko continued to resist moving to another prison or to participate in an ISOTP or a Pathways (intensive substance abuse) programme. In response to a proposal that he should move to Karnet prison farm in order to gain entry to such a programme, he threatened that he would attempt to escape from Karnet or to commit self‑harm. He completed a brief Drug and Alcohol programme (six sessions) in early 2014 but this was too short to result in any treatment completion report. The most encouraging development was that he began working with a new DSO psychologist in mid‑January 2014 who had since seen him for individual counselling on a weekly basis. Dr Galloghly's assessment of that programme and counselling is that the psychologist has been able to work with Misko on a broad range of offending relating treatment needs and that there has been good engagement in the process. The reports of the individual counselling have led the psychologist to believe that Misko has made significant progress over the last six months but still had outstanding significant treatment needs, in particular the need for a relapse prevention plan for alcohol use which is very basic. His history of alcohol abuse was regarded as significant but his means of dealing with temptations for the use of alcohol or how he would cope if he had recourse to it were quite inadequate.
Although Misko appeared to have made significant treatment progress since the 2013 annual review, there was less progress in the areas of interpersonal problem solving and stress management. Dr Galloghly's conclusion was that Misko is a man with various long-standing treatment needs who has a chronic history of resisting recommended treatment. While recognised gains have been made since the last review, they were viewed as rudimentary and should be weighted against his reduced intellectual capacity. Dr Galloghly reported that Misko had made less improvement in the areas of stress management and interpersonal problem solving and that for progress in this area to be achieved or measured he needed to be placed in a less dependency oriented environment, such as in a less restrictive prison, but that he was opposed to making any such change. Dr Galloghly confirmed these opinions under cross-examination but offered the opinion that it would be difficult for him to cope with a change in environment, even a prison environment. At present, there was no impaired treatment programme presently available such as Misko requires but such a programme might, subject to resource availability, become available next year.
The community supervision assessment was explained in more detail by Ms Julie Dabala but her essential conclusion was that there was no suitable premises nor any suitable supervisory regime available for Misko at present. It was put to her in cross-examination that any regime for Misko would require regular but random alcohol testing; GPS tracking; the imposition of a curfew and special accommodation under the supervision of an organisation such as UnitingCare West or Outcare. However, there were no vacancies presently available nor, it would appear to be the case, in the near term.
In submissions opposing any release of the respondent on an intensive supervision order, counsel for the applicant stressed the history of Misko's resort to violence and his continuing denial of use of violence during the offences which he committed. This, so it was submitted, revealed that he did not have any sufficient insight into his motivation for the use of violence and, further, that his attitude towards violence had not been properly identified or explored, let alone brought under control.
It is, unfortunately, obvious that Misko has become institutionalised and is highly dependent upon the prison staff and medical team for elementary daily living skills and that his anxiety renders him deeply opposed to any change in his regime as, for example, demonstrated by his refusal to be transferred to Karnet Regional Prison even though such a transfer would provide an opportunity for better suited programmes and an ability to measure his performance in a less restrictive prison.
Having regard to the factors in s 7(3) of the Act and the acknowledged fact that Misko remains a serious danger to the community, I am not satisfied that there is any measure which could be adopted which would be a sufficient protection for the community if he were released on an intensive supervision order. Indeed, all the evidence is to the contrary and there are no facilities, whether in the nature of supervisory programmes nor suitable accommodation, available for him.
In the circumstances, and for these reasons, I decline to rescind the existing detention order.