Director of Public Prosecutions (WA) v Misko [No 5]

[2017] WASC 8

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MISKO [No 5] [2017] WASC 8

CORAM:   CORBOY J

HEARD:   28 NOVEMBER 2016

DELIVERED          :   28 NOVEMBER 2016

PUBLISHED           :  17 JANUARY 2017

FILE NO/S:   DSO 2 of 2012

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

JOHN TERRY MISKO
Respondent

Catchwords:

Dangerous Sexual Offender - Fourth annual Review - Whether respondent remains a serious danger to the community - Whether continuing detention order should be affirmed or rescinded - Community would not be adequately protected if the respondent was released on a supervision order - Continuing detention order affirmed

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Continuing detention order affirmed

Category:    B

Representation:

Counsel:

Applicant:     Mr C G Astill

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 Prosecution (WA) v Misko [No 4] [2016] WASC 4

CORBOY J: 

Summary

1. The respondent has been convicted of four sex offences.  He was sentenced to a total of 20 years' imprisonment in September 1999.

2. In July 2012, McKechnie J found that the respondent was a serious danger to the community and made a continuing detention order pursuant to s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act). His Honour accepted the opinions of two psychiatrists that there was a high risk of the respondent reoffending sexually if he was released to the community due to the nature and extent of his prior history and denial of offending, his lack of insight and his refusal to participate in treatment programmes.

3. The third annual review of the continuing detention order was conducted by Fiannaca J:  Director of Public Prosecution (WA) v Misko [No 4] [2016] WASC 4. His Honour comprehensively summarised in his reasons the respondent's personal circumstances, his history of sexual offending and the previous proceedings under the DSO Act. The matters summarised by his Honour were not in issue and I had regard to those reasons for the purpose of conducting the fourth annual review of the detention order.

4. Fiannaca J noted that the respondent had been transferred to Acacia Prison and accommodated in the Independent Living Unit following the second review.  The move was intended to assist the respondent to develop self‑care skills, having regard to the extent to which he had become institutionalised.  The respondent had also completed the Sex Offenders Intellectual Disability (SOID) programme by the time that the third review was conducted.  Nevertheless, his Honour found that the respondent remained a serious danger to the community and that his risk of reoffending could not be adequately managed in the community. 

5. As to finding that the respondent remained a serious danger to the community, his Honour accepted the opinions expressed by a consultant psychiatrist, Dr Wojnarowska, and concluded that:

   I am satisfied that his risk of committing a serious sexual offence is high and would be imminent if he were to be released into the community. The offending is likely to be similar to his previous offences: he is likely to be intoxicated with alcohol; it would involve gaining the confidence of a woman with whom he has become casually acquainted; violence is highly likely to be involved and it could be severe; and the impact on the victim is likely to be severe, both psychologically and physically [75].

6. His Honour further found that the conditional release of the respondent on a supervision order was not feasible as there was no suitable accommodation available. However, his Honour added that he would not have been satisfied that a supervision order would provide adequate protection to the community even if accommodation had been available [76].

7. The respondent accepted at the fourth review hearing that he remained a serious danger to the community and that the community could not be adequately protected if he was released pursuant to a supervision order. Those concessions were made on the basis that no suitable accommodation had been identified if the respondent was released to the community. I concluded at the review hearing that those concessions were rightly made. Accordingly, I found that the respondent remained a serious danger to the community and affirmed the continuing detention order. I made orders pursuant to s 33 of the DSO Act.

8. These are my reasons for making those orders.

The review

1. The appellant tendered the following materials for the purpose of the annual review:

   (a)individual management plan compiled by the Department of Corrective Services;

   (b)bundle of Department of Corrective Services incident histories, charge history and substance use test results;

   (c)health encounters report for the period 1 October 2015 to 26 October 2016;

   (d)psychiatric report prepared by Dr Wojnarowska;

   (e)community supervision assessment report prepared by Ms Henshall, senior community corrections officer; and

   (f)dangerous sexual offender treatment progress report by Dr Poli, senior forensic psychologist.

2. The respondent has been previously diagnosed with an anti­social personality disorder and mild intellectual disability.  He has a long history of alcohol dependence and suffers from type 2 diabetes, hypertension and hypercholesterolemia. 

3. The respondent was transferred to Karnet Prison Farm following the last review.  It is apparent from the community supervision assessment report that he settled well at Karnet, was engaged in various work activities and assisted another prisoner who had an acquired brain injury.  However, in late July 2016 an allegation was made by other prisoners about the respondent which resulted in a police investigation.  The respondent denied the allegation and he was not charged with any offence.  However, he was transferred from Karnet to Casuarina Prison.  The move has caused the respondent considerable distress and adversely impacted on his counselling and treatment programme.

4. The respondent declined to participate in the Intensive Sex Offender Treatment Programme (ISOTP) while in prison prior to 2012.  However, he engaged in individual counselling after the continuing detention order was made and completed the SOID programme in 2015.  His treatment gains were described as limited, primarily due to his limited understanding of his offending.  The difficulties were attributed to his intellectual disabilities, his personality profile and deficits in social functioning.

5. The respondent continued to participate in individual counselling sessions following the last review.  Dr Poli's report contained a detailed description of the objectives and content of the counselling sessions.  According to Dr Poli, the respondent had made some gains in general living skills through counselling since the last review but the gains were minimal and he continued to present with significant treatment needs.  Those needs concerned a number of areas relevant to his risk of reoffending - his insight into his offending, including precursors to offending, risk factors and management strategies; substance use; problem solving and coping skills; relationships and boundaries; communication skills; and emotion management. 

6. Dr Poli considered that treatment progress was likely to be slow due to the respondent's cognitive deficits, his rigid thinking style and lack of capacity for insight.  It was doubtful whether the respondent would make any further significant gains from individual counselling.  His counsellor had recommended that his future treatment should focus on developing his general living skills and testing his coping and problem solving skills in a reduced-security environment.  That would involve transferring him to a medium or minimum security prison where he could reside in a self‑care unit.

7. Dr Wojnarowska considered that the respondent's risk of sexual reoffending remained high and was associated with his antisocial personality disorder, his limited social skills and alcohol use disorder.  His intellectual disability was a permanent barrier to treatment progression and his management in the community would be challenging due to his impulsivity and institutionalisation.  His treatment needs were substantial and he would require close supervision if he was released to the community.  He would benefit from supported accommodation with considerable assistance and supervision.

8. The community supervision assessment report confirmed that there was no accommodation under the DSO Supported Accommodation Programme that was available to the respondent.  He had proposed to reside with a long-term family associate but it was considered that this was not a suitable proposal for his accommodation if he was to be released to the community.

Conclusion

1. I accept the opinion of Dr Wojnarowska that the respondent continues to present a high risk of sexual reoffending.  It is clear from all of the material presented in the review that he remains a serious danger to the community and that the community would not be adequately protected if he was released under a supervision order. 

2. It is apparent from the material presented at this review that the respondent has made some progress in addressing the causes of his offending since the continuing detention order was made.  Notably, the respondent now accepts responsibility for his offending and has, consequently, participated in counselling and treatment programmes.  However, his treatment needs remain complex and challenging. 

3. A path to the respondent's eventual release to the community under supervision has, perhaps, emerged - a combination of further developing his self-management skills and the provision of accommodation in which he can be closely supervised and monitored (both for the protection of the community and for the respondent's benefit given the extent of his institutionalisation and intellectual disabilities).  To that end, I note the opinions expressed in the material presented for the review that the respondent would benefit from being housed in a minimum security facility where he would be required to take more responsibility for his care if that could be safely arranged.