Director of Public Prosecutions (WA) v MJD [No 2]
[2015] WASC 346
•15 SEPTEMBER 2015
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MJD [No 2] [2015] WASC 346
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 346 | |
| 15/09/2015 | |||
| Case No: | DSO:3/2015 | 9 - 11 SEPTEMBER 2015 | |
| Coram: | MITCHELL J | 11/09/15 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Supervision order made | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) MJD |
Catchwords: | Criminal law Dangerous Sexual Offenders Act 2006 (WA) Application for div 2 orders Whether a serious danger to the community Whether a continuing detention or supervision order should be made Duration and conditions of supervision order Turns on own facts |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17 Community Protection (Offender Reporting) Act 2004 (WA), s 85G |
Case References: | Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 Director of Public Prosecutions (WA) v W [2014] WASC 257 Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 The State of Western Australia v Latimer [2006] WASC 235 The State of Western Australia v West [2013] WASC 14 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
MJD
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for div 2 orders - Whether a serious danger to the community - Whether a continuing detention or supervision order should be made - Duration and conditions of supervision order - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17
Community Protection (Offender Reporting) Act 2004 (WA), s 85G
Result:
Supervision order made
Category: B
Representation:
Counsel:
Applicant : Mr M T Trowell QC
Respondent : Ms M R Barone
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Barone Criminal Lawyers
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 W [2014] WASC 257
Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v West [2013] WASC 14
- MITCHELL J:
(These reasons were delivered extemporaneously and have been edited from the court's record.)
Summary
1 In May 2010, the respondent presented himself to the Midland police station and offered a confession to sexual offending against his half-sister in 1983 - 1984 and his 6-year-old granddaughter in 2009 - 2010. At this time the respondent was suffering from several serious psychiatric disorders including bipolar disorder, he was abusing alcohol and drugs, he was not taking his prescribed medication and he was living an itinerant lifestyle. Following his confession to these offences, of which police were not previously aware, the respondent was arrested and eventually sentenced to a total effective term of 5 years 3 months' imprisonment. That term expired on 24 August 2015.
2 The Director of Public Prosecutions asks this court to make a supervision order under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). While the Director recognises that the respondent has made significant progress towards his rehabilitation, he contends that there remains an unacceptable risk that the respondent will commit serious sexual offences if released into the community without being subject to a supervision order. The Director does not contend that I should make a continuing detention order.
3 The effect of the psychiatric evidence is that the respondent poses a high risk of committing further serious sexual offences if not subject to a continuing detention order or supervision order, but that the risk can best be managed under a supervision order imposing conditions on the respondent's release into the community.
4 For the reasons which follow, I agree with the psychiatrists and the Director that the court should make a supervision order. The respondent did not oppose the making of such an order.
Evidence and issues
5 The evidence in this case comprised two volumes of documents containing material related to the respondent's past offending and antecedents, as well as copies of reports and management plans prepared for the purposes of this hearing.1 Two psychiatrists, Dr Febbo and Dr Wojnarowska, supplemented their reports with oral evidence. I also heard oral evidence from Dr Cooney, a forensic psychologist employed by the Department for Corrective Services and Ms Henshall, a senior community corrections officer employed by that Department, which supplemented the proposed offender management plan included in the exhibits. I also received an email describing a desktop assessment, prepared by Western Australian Police, of the respondent's proposed residence if released under supervision.2
6 The respondent did not adduce or call any evidence.
7 There was no dispute between the parties that I should find that the respondent posed an unacceptable risk of committing a serious sexual offence if not subject to a continuing detention order or supervision order. Further, the Director did not contend that a continuing detention order should be made, accepting that the risk could appropriately be managed by conditions of a supervision order. The contentious issues between the parties concern the length of the proposed supervision order and some of the conditions which should be imposed.
8 Questions of whether a continuing detention order or supervision order should be made are matters for the court's assessment, not the parties' consent. Therefore, I must consider whether the evidence supports a conclusion that the respondent poses a relevant unacceptable risk if not subject to a continuing detention order or a supervision order, and which kind of order will provide for an adequate degree of protection of the community. I shall deal with these issues before turning to disputes about the terms and conditions of the proposed supervision order.
9 There was little disagreement between the witnesses as to any matters of fact or expert opinion, and the primary facts did not appear to be in dispute. I make the following findings of fact based on that evidence. Where it is convenient to note a particular reference to a document appearing in the bundle of materials, which comprised exhibits P1 and P2 in the application.
Personal history
10 There are a number of accounts of the respondent's personal history in exhibit P1, which emanate from the respondent. Many of the summaries appear to be based on a plea in mitigation delivered by the respondent's counsel when the respondent was sentenced in 2011. It is difficult to distil an accurate chronology from the accounts, as the ages attributed to the respondent and his daughters and the dates of his convictions do not reconcile. For example, in 2011 the respondent was described as separating with a former partner at age 19.3 This would have meant that the separation occurred in about 1980. However, the couple's youngest child was said to be 29 years old in 2011, meaning that she was born in around 1982 when the respondent was 21 years old.
11 In what follows I will give an account of the respondent's personal history which I accept. I am not able to be precise about the dates and the ages of the respondent at the time of the events described, which must be regarded as very approximate.
Childhood
12 The respondent was born in Carnarvon on 4 February 1961. He was the oldest of three children born to his Aboriginal father and mother of Irish-Aboriginal background. His parents, who were reportedly both chronic users of alcohol and had a violent relationship, separated when the respondent was about 5 years old. The respondent's father went to live in Mingenew while his mother stayed in Carnarvon.
13 Shortly after separating from the respondent's father, his mother began a relationship with a violent alcoholic man who was later imprisoned for sexual offences against children other than the respondent. The respondent observed this stepfather physically assault his mother and siblings, and was subject to serious physical abuse himself. The respondent was also taken to a hotel where his stepfather would drink, following which the stepfather would make the respondent 'stand guard' while he had sex in a car with women he met while drinking.
14 When the respondent was about 6 years old he was taken into State custody by welfare authorities and placed at an institution operated by the Native Welfare Department. The conditions in that institution were harsh, and the respondent recalls being subject to physical and emotional abuse. At the age of about 8 years, the respondent was placed at a mission operated by Catholic priests. In addition to physical and emotional abuse continuing, the respondent was subject to sexual abuse by a priest. The respondent remained at the mission for about five years.
15 While the respondent was in the custody of welfare authorities, his father had been in a relationship with a woman with whom the father had a further five children. The woman died when the respondent was about 13 years old, after which his father resumed caring for the respondent. The respondent spent two years at a school in Perth, but was made to return to his father in Geraldton when his father was not coping after the death of his partner. The respondent's father was drinking excessively and was violent and unpredictable. The respondent was required to shoulder the burden of caring for a number of half-siblings aged between about 5 and 9 years. He left school at around the age of 14 - 15 years.
Relationship with Rosemary in New Norcia
16 Shortly after leaving school, the respondent went to work on a farm near New Norcia. At around the age of 15 years he started drinking and attempted to hang himself from a tree. He developed a relationship with Rosemary, the daughter of the farm owner, who was a couple of years older than him. The relationship lasted about four years, until the respondent was around 19 years old, and produced two daughters. When the respondent was about 19 years old, the relationship broke down and he returned to Geraldton to live.
Relationship with Valerie in Geraldton
17 The respondent then had a relationship with Valerie, an Aboriginal woman, for about seven years. The couple had five children, the eldest of whom died at childbirth from unknown causes. After his son's death, the respondent drank to excess and made a number of suicide attempts. He incurred assault, traffic and disorderly conduct convictions over this period.
Relationships with Rhonda and Carlene in Darwin
18 In the late 1980s, the respondent moved to Darwin with Valerie and their children. The respondent's Western Australian and Northern Territory criminal records suggest that the move to Darwin would have occurred in around 1987 - 1988, when the respondent would have been 26 - 27 years old. He remained in the Northern Territory and later established a relationship with Rhonda, with whom the respondent had a daughter, and Carlene, with whom the respondent had two daughters.
19 Carlene committed suicide after the respondent's relationship with her ended.
Living as a 'long-grasser' in Darwin
20 After Carlene's suicide, the respondent was homeless for about five years. He became what is known in the Northern Territory as a 'long-grasser', or person who sleeps in public spaces around Darwin. The respondent was drinking every day, mostly methylated spirits, over this time.
Living in Palmerston circa 2000 - 2009
21 In around 2000, the respondent secured public housing in Palmerston, which is one of Darwin's outer suburbs. He continued to abuse alcohol and began using cannabis. His depression and suicidal ideation continued. Towards the end of his time in Darwin, the respondent began a relationship with Tina, with whom he has a son. In around 2007, the respondent was working full-time as a cleaner, and in 2008 - 2009 he was working full-time installing bathrooms.
Living in Perth from 2009 until imprisonment
22 The respondent moved to Perth in around 2009, after being dealt with for offences involving domestic violence to which I will refer. He was unable to find work, and was living an itinerant lifestyle, using alcohol and cannabis. He also began using amphetamine at this time.
23 On 20 March 2010, the respondent was admitted to the Swan Valley Centre suffering from suicidal ideation and low mood. He had been brought in by police after trying to climb an industrial power line in an attempt to end his life. He reported a low mood which had been ongoing for the past six months, other attempts at suicide which he had not been able to follow through and to feelings of guilt. Psychotic features were noted. The respondent was admitted to an open ward and discharged on 7 April 2010, with a final diagnosis of 'major depressive disorder, moderate to severe bipolar mood disorder, depressive episode'. He was prescribed medication, and referred to a Derby health service for a follow up appointment which had been booked for 12 April 2010.4
24 The respondent was again admitted to the Swan Valley Centre on 12 April 2010. He reported suicidal ideation, conflict with a brother with whom he was staying and having not slept due to amphetamine use. The respondent admitted to non-compliance with medication and substance abuse since his last discharge. The respondent was discharged again on 19 April 2010 with a final diagnosis of 'amphetamine induced psychosis/mood disturbance; situational crisis'.5
25 The respondent was admitted to the Swan Valley Centre again on 21 May 2010. He was admitted after he was found cutting himself by a brother, and police were called. During the admission he expressed suicidal ideation, said that he had sexually abused his niece and admitted to cannabis and amphetamine use. He was discharged on 24 May 2010.6
26 On the day of his last discharge, the respondent attended the Midland police station and participated in a recorded interview in which he volunteered admissions that he had been sexually abusing his granddaughter, SAL, who was 6 years old. The respondent also volunteered information that he had raped his half-sister, DET, in Boulder when (he said) he was about 16 years old and she was about 18 years old.
27 The respondent was charged and remanded in custody from 25 May 2010. On 29 April 2011, the respondent was sentenced to a total effective sentence of 5 years 3 months' imprisonment for offences against his granddaughter and half-sister.
Sexual offending
Sexual offending with half-sisters - mid 1970s
28 In his interview with Dr Wojnarowska, the respondent admitted to sexual conduct with his younger half-sisters when he returned to Geraldton in the mid-1970s.7 In his interview with Dr Febbo he admitted rubbing the vaginas of three half-sisters when he was responsible for bathing them and getting them to bed.8 The age which the respondent assigned himself in his accounts of this offending to the psychiatrists was inconsistent, and did not match the period when he was responsible for the care of his half-sisters. However, I accept that the incidents occurred at some time, probably in the mid-1970s, based on these admissions. The respondent was never charged with these offences.
Sexual offending with woman on beach - circa 1980
29 In his interviews with Dr Wojnarowska, the respondent admitted approaching a woman he did not know and grabbing her breast. The incident occurred on a beach at Geraldton when the respondent was about 19 years old.9
Sexual offending against DET - 1983 - 1984
30 In 1983 and 1984, the respondent was living with Valerie in Boulder. During that time DET, who was the respondent's half-sister, moved into the address and had the use of a separate bedroom. There is no clear evidence as to DET's age at this time, but the submissions of both parties indicate that she was an adult. The respondent was 22 or 23 years old at this time.
31 One night, when DET was sleeping in her bedroom, the respondent returned home alone and entered the bedroom. The respondent sat on the edge of DET's bed to speak to her, and asked her to move over. DET said that she could not, but the respondent pushed his way under the blankets and got on top of her. DET said 'you can't do this to me'. The respondent pulled DET's nightie over her breasts and pulled her underpants down. He pulled his own pants down, and put his erect penis into DET's vagina for a period of 5 - 10 minutes. After the rape, DET got out of bed, got dressed and left the house.
32 DET had not made a complaint about this incident when the respondent made his confession to police at Midland on 24 May 2010.
Sexual offending against CD - 25 November 1992
33 In November 1992, the respondent was living with Valerie and their four daughters in a demountable at Bulman Outstation near Katherine in the Northern Territory. The circumstances of the offence were that Valerie was sleeping on a single bed while the respondent was sleeping with their children on a mattress on the floor. The respondent reached over one of his daughters, CD who was then 11 years old, and placed his hand down the front of her shorts He used his finger to rub her vagina on the outside of her underpants, stopping when Valerie got up to turn the television on. CD reported the incident to Valerie the following morning. The respondent was arrested on 4 December 1992 and said that he could not recall the incident as he had been smoking marijuana.10
34 The respondent was 31 years old at the time of committing this offence.
35 On 15 December 1992, the respondent was charged with one count of indecently dealing with a child under the age of 14 years.11 He was convicted by the Darwin Court of Summary Jurisdiction on 21 February 1997 and released on a good behaviour bond.
Sexual offending against SKS - June - July 1997
36 In June - July 1997, the respondent was living with Carlene in Darwin. Carlene's daughter, SKS, was visiting for the school holidays. At this time SKS was 12 years old and the respondent was 35 years old. The respondent had only recently been convicted of the 1992 offence concerning CD, and released on a good behaviour bond for that offence.
37 At about 5.00 am one morning in June or July 1997, the respondent entered SKS's bedroom and sat on her bed. He kissed SKS on the mouth, and attempted to put his tongue in her mouth but she turned her head to stop him. The respondent then rubbed his groin against SKS's thigh but was pushed away. The respondent attempted to kiss SKS again, but she pushed him away again. The respondent then left the room, returning a short while later to apologise.12
38 SKS reported the offence to the Alice Springs police on 5 May 2001. The respondent was interviewed by police on 11 May 2001 and admitted the offence. On 15 May 2001, he was charged with unlawfully and indecently dealing with SKS, a child under 16 years, and granted bail.13 He was convicted of the offence by the Darwin Court of Summary Jurisdiction on 1 April 2003, and sentenced to a suspended term of 6 months' imprisonment.14
Sexual offending against SAL - 1 August 2009 - 30 April 2010
39 In 2009 and 2010, the respondent was living an itinerant lifestyle, staying with various family members. From time to time he would stay at the house of one of his daughters. The respondent's granddaughter SAL was also living at her mother's house. The respondent was convicted of eight counts involving five separate incidents of sexual abuse of his granddaughter on dates unknown between 1 August 2009 and 30 April 2010. At this time the respondent was 49 years old and SKS was 6 years of age.
40 The first incident involved digital and penile penetration of SAL while they lay on a mattress on the floor of the lounge room together. The second involved digital penetration as the respondent and SAL were sitting on a lounge chair watching television. The third incident involved the respondent lifting SAL onto a washing machine at the house and digitally penetrating her. The fourth incident occurred when SKS came to the respondent's bedroom one night and involved penile and oral penetration. The fifth incident involved SAL coming into the respondent's room and involved vaginal rubbing and penile penetration.
41 The offences against SAL involved penetrating the labia and touching the clitoris.
42 The respondent approached his daughter on 21 May 2010 and told her he had been sexually molesting his granddaughter. He admitted himself into the Swan Valley Centre on that day and volunteered a full confession to police on 24 May 2010, as I have described.
Other offending
43 The respondent has been convicted of a number of non-sexual offences. They are of limited relevance to the question of whether the respondent presents an unacceptable risk of committing a serious sexual offence if he is not subject to a continuing detention order or a supervision order. The relevance lies in what both psychiatrists described as common risk factors underlying both kinds of offending behaviour.
44 On 6 October 1975, the respondent was convicted of his first offence when he was convicted of aggravated assault by the Geraldton Children's Court and given 12 months' probation. He was 14 years old at this time. The respondent was convicted of traffic and other minor offences at the Geraldton Children's Court on 7 February 1977, 26 September 1977 and 27 December 1978.
45 Between March 1980 and November 1986, the respondent appeared in various Courts of Petty Sessions on nine occasions. Apart from an offence of aggravated assault, of which the respondent was convicted on 4 March 1980 and fined $100, they were all traffic or public order offences for which he received fines. The respondent was also convicted of aggravated assault before the Northampton Children's Court on 16 March 1983 and sentenced to one month's imprisonment.
46 The respondent was convicted of a number of relatively minor offences in South Australia in 1995.
47 In the Northern Territory the respondent has incurred a number of assault and aggravated assault convictions. He was convicted of assault on 29 May 1992 and 8 May 2001. On the latter occasion he was also convicted of trespass and failing to comply with a restraining order, and sentenced to a total suspended term of imprisonment of 3 months.
48 On 12 September 2008, the respondent was convicted in the Darwin Court of Summary Jurisdiction of a number of aggravated assault, assault and threat to kill offences. He was sentenced to 9 months' suspended imprisonment. He breached the suspended imprisonment order by engaging in conduct that contravened a domestic violence order on 7 January 2009. On 30 January 2009 he was ordered to serve 3 months' imprisonment in respect of those matters.
49 The Northern Territory convictions for assault related to offences by the respondent against persons with whom he was in a domestic relationship.
Engagement in prison programs
50 Prior to being eligible for parole, the respondent attempted but failed to complete the Pathways program, which is a structured program providing treatment to individuals who have a history of offending behaviour and substance abuse.15 He also attempted but failed to complete the Intensive Sex Offender Treatment Program.16 In both cases the reasons for him ceasing to participate in the program was attempted self-harm. However, the respondent was able to successfully complete the Pathways program on 22 July 2015. He successfully completed the Intensive Sex Offender Treatment program on 4 December 2014.17
51 During his incarceration, the respondent has also engaged with the Prison Counselling Service. The Department's clinical psychologist registrar reported on 23 June 2015 that the respondent's engagement with the Service has enabled him to become more emotionally contained, to develop some pro-social coping skills and to better manage his own emotions at times of stress. However, it is noted that the respondent's individual resources remain limited, as demonstrated by the requirement of regular external support to assist with stressful situations. It was noted that the respondent had a considerable reduction in risk behaviour in relation to suicide since entry into prison. His self-referral to the Service for support prior to becoming suicidal signified a considerable increase in mental stability and much improved insight into his own mental state.18
Application under the DSO Act
52 On 19 May 2015, the Director applied for orders under s 14 and s 17(1) of the DSO Act. On 4 June 2015, Simmonds J ordered that the respondent be detained in custody until the conclusion of the hearing and judgment on the application for a div 2 order, pursuant to s 14(2)(b) of the DSO Act. The application for a div 2 order under s 17(1) of the DSO Act was listed for hearing on 9 - 11 September 2015 and psychiatric reports were ordered. The respondent's sentence expired, as I have noted, on 24 August 2015.
Psychiatric reports and evidence
53 I have received and considered reports on the respondent prepared by two consultant psychiatrists, Dr Wojnarowska and Dr Febbo, provided as required by an order under s 37 of the DSO Act. Both psychiatrists express the view that the respondent poses a serious risk to the community if not subjected to a continuing detention order or supervision order under the DSO Act. Those opinions are based on a review of material disclosing the respondent's history, which I have outlined, interviews with the respondent and a process of structured professional judgment based on that material. Both psychiatrists also gave oral evidence before me.
Dr Wojnarowska
54 After noting the respondent's personal history, Dr Wojnarowska indicated that the respondent was first diagnosed with bipolar disorder in 2003 in Broome.19 He was started on medication, but presented to Darwin Hospital in April 2004 with elevated mood and some paranoid psychotic symptoms. The respondent was discharged at that time on medications. Dr Wojnarowska noted the respondent's report that he stopped taking medications when he moved to Perth in 2009 and that his mental state deteriorated rapidly.
55 Dr Wojnarowska referred to the respondent's admissions to the Swan Valley Clinic in March, April and May 2010. Dr Wojnarowska noted that, after his remand in custody in May 2010, the respondent experienced a manic episode and required admission to the Frankland Centre, a forensic psychiatric ward. A diagnosis of bipolar disorder was confirmed, and the respondent was discharged when his mental state stabilised after four weeks.
56 Dr Wojnarowska then refers to various other matters, including the respondent's multiple attempts at self-harm over his first three years in custody, and her interview with and mental state examination of the respondent. Dr Wojnarowska diagnoses the respondent with bipolar disorder, type 1 anti-social personality disorder, dependent and anxious personality traits, paedophilia (non-exclusive type) and alcohol and cannabis use disorder.
57 After referring to a number of risk-assessment tools, Dr Wojnarowska concludes that the respondent's risk of sexual offending is high if he is not made subject to a continuing detention order or supervision order.20
58 Dr Wojnarowska observes that the most likely reoffending scenario is an opportunistic assault against a female victim who is vulnerable by way of age. He would be motivated by fulfilling his sexual needs, would likely be intoxicated and the victim is likely to be a relative. Warning signs that the respondent's risk may be escalating include failure to comply with supervision conditions, use of alcohol or cannabis and associations with people drinking alcohol, failure to comply with medication and disengagement with services.21
59 In her oral evidence, Dr Wojnarowska expressed the opinion that the respondent could be managed in the community on a supervision order.
60 Dr Wojnarowska recommends that, if the respondent is released into the community, he should continue individual psychological treatment on a weekly basis, as well as drug and alcohol counselling. The respondent would benefit from referral to the Community State Forensic Mental Health Services, should be banned from premises that sell alcohol and should not be allowed any unsupervised contact with children under 16. Dr Wojnarowska says that a curfew could assist with managing the respondent's access to alcohol, and recommended in her written report that any period of supervision be not less than eight years. In her oral evidence, Dr Wojnarowska's reduced her recommendation to a period of five years.
Dr Febbo
61 Dr Febbo refers to the respondent's background and interview, and diagnoses the respondent as suffering from bipolar disorder, paedophilia and a history of substance abuse/dependence and alcohol abuse. He says that the respondent suffers from paranoid personality disorder, dependent personality disorder, borderline personality disorder and anti-social personality traits. He notes the respondent's childhood history of abuse, his significant psychological instability relating to the above conditions and a likelihood of significant stress related to transfer into a community setting.22
62 After describing his risk assessment, Dr Febbo expresses the opinion that the respondent would be at high risk of further sexual offending if he is not the subject of a detention or supervision order.23
63 Dr Febbo expresses the opinion that, if the respondent were to re-offend, a future offending scenario would be similar to his earlier offending. In the context of significant stress in the community (which may relate to difficulties within an intimate relationship or difficulties in transitioning into the community), the respondent may return to maladaptive behaviours such as the use of substances or alcohol. The respondent's mental state may deteriorate with a development of a depressive, manic or hypomanic syndrome, which may be partially related to non-compliance with medication in the context of psychological stress.24
64 Dr Febbo expresses the view that the respondent's risk could be managed in the context of a supervision order within the community. He considers management should include psychological intervention for sexual deviance and alcohol and substance abuse and assertive follow-up in relation to his major psychiatric disorder, bipolar disorder. Dr Febbo notes that the Community Forensic Service is best placed to provide intensive psychiatric input. A supervision order should include a condition that the respondent does not have any unsupervised contact with children, and monitoring by Corrective Services and police resources would also be useful in managing the respondent's risk.25
Psychiatrist's oral evidence
65 Neither psychiatrist altered their opinion as to the nature and extent of the risk posed by the respondent of committing a serious sexual offence if not subject to a continuing detention order or supervision order. Nor was their view of that risk challenged in cross-examination. It will be necessary to return to the oral evidence of the psychiatrists when considering whether a continuing detention order or supervision order should be made and the conditions which may be applied to a supervision order.
Statutory provisions
66 The objects of the DSO Act are to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community, and to provide for continuing control, care, or treatment, of persons of a particular class.26
67 The DSO Act pursues these objects by providing for the Director to apply for orders under the DSO Act in relation to a person who is under sentence of imprisonment wholly or in part for a serious sexual offence.27 It is clear in the present case that the respondent was, at the time the Director made this application, serving a term of imprisonment for serious sexual offences.28
68 The task of the court in dealing with an application for a div 2 order is set out in s 17 of the DSO Act, which provides:
(1) If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may:
(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.
(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
69 If the court makes an order under s 17(1)(b), referred to as a 'supervision order', the mandatory and discretionary conditions of supervision are provided for in s 18 of the DSO Act.
Unacceptable risk if not subject to a continuing detention order or supervision order
70 Before I can make a relevant order I have to 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.29
71 The Director has the onus of satisfying the court of this matter 'by acceptable and cogent evidence' and 'to a high degree of probability'.30
72 If I am satisfied that there is such an unacceptable risk, my power and duty is to make either a continuing detention order or a supervision order.31 For this purpose an 'unacceptable risk' is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the respondent offending, the type of sexual offence which he is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, I am required to consider whether, having regard to the likelihood of the respondent offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that he has already been punished for the offences he has actually committed, it is necessary in the interests of the community to ensure that the respondent is subject to further control or detention.32
73 The ordinary rules of evidence apply in these proceedings, except as modified by s 42(4) of the DSO Act.33 Under s 42(4)(a), I may receive in evidence 'any document relevant to a person's antecedents or criminal record'. Under s 42(4)(b) I may receive in evidence:
anything relevant contained in the official transcript of any proceeding against a person for a serious sexual offence, or contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind.
74 Section 7(3) of the DSO Act identifies a number of mandatory relevant considerations to which I must have regard in deciding whether to find that a person is a serious danger to the community. These are:
(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b) any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d) whether or not there is any pattern of offending behaviour on the part of the person; and
(e) any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program; and
(f) whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and
(g) the person's antecedents and criminal record; and
(h) the 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; and
(i) the need to protect members of the community from that risk; and
(j) any other relevant matter.
Psychiatrists' report
75 I have considered the reports of Dr Febbo and Dr Wojnarowska together with their oral evidence. I have already summarised the principal aspects of their reports. Both practitioners conclude that the respondent presents a serious risk of committing further serious sexual offences if not subject to a continuing detention order or supervision order.
Other assessments
76 I have also considered the assessments reflected in the reports which form part of exhibits P1 and P2. Those reports indicate that the respondent has successfully completed the Intensive Sex Offender Treatment program and the Pathways program. The reports are also consistent with the psychiatrists' observations that the respondent has been mentally stable over approximately the last two years.
Propensity
77 The material to which I have referred satisfies me that the respondent does have a propensity to commit serious sexual offences in the future. I do not regard the risk as imminent. The psychiatric evidence establishes that the principal pathways leading the respondent to offend are his psychiatric conditions (particularly depression and bipolar disorder), consumption of drugs and alcohol and the breakdown of intimate relationships. Further, the psychiatrists are of the view, expressed in their oral evidence, that it is highly unlikely that the respondent would commit a serious sexual offence against a stranger. The group at most significant risk from the respondent are children with whom the respondent has an established trusting relationship.
78 While the respondent's psychiatric conditions are well managed by medication, his mental state is stable and he abstains from drug and alcohol use, the risk to children is very much reduced. However, the respondent has a sporadic history of compliance with treatment recommendations and has a significant history of alcohol and drug dependence. The risk is that stressors in the respondent's life - unemployment, possible homelessness and future relationship breakdown or biological factors - will lead the respondent to disengage with treatment and resume alcohol and substance abuse further damaging his mental state. If the respondent has an opportunity in those circumstances to establish a relationship with a child the prospect of his reoffending is, as the psychiatrists have noted, high.
Pattern of offending behaviour
79 The past pattern of the respondent's offending behaviour is to commit serious sexual offences against family members, principally pre-pubescent children, with whom he has developed a close relationship. The offending occurs at times of stress in the respondent's personal situation, in particular, relationship breakdown and periods of homelessness, during which the respondent has abused alcohol and drugs.
Efforts by the respondent to address causes
80 The respondent has undertaken significant steps to rehabilitate himself while in custody. He has actively engaged in and successfully completed programs in prison. He has also voluntarily engaged with the prison psychological service on numerous occasions, demonstrating increasing self-awareness of his psychiatric conditions. It is also significant that he took the initial step to address his offending behaviour of approaching police and confessing to the crimes he had committed against his granddaughter and sister. His openness is also indicated by his disclosure to the psychiatrists, who he knew would make a report to the court, of incidents of sexual offending with which he had never been charged.
Positive effects of rehabilitation programs
81 The steps which the respondent has taken towards rehabilitation have seen him make significant advances. The respondent had enjoyed a period of mental stability over approximately the last two years, and has gained insight into his condition. He has accepted voluntary treatment for his mental conditions, and adhered to a regime of medication. He is highly motivated to avoid further offending and alcohol and drug consumption. Despite being subject to stressful situations in prison, involving significant and continuing bullying by other prisoners, there is no evidence of the respondent resorting to maladaptive coping strategies.
82 However, while gains have been made, there remain significant risks. The gains have been maintained in the controlled environment of a prison. They have yet to be tested by the stresses which the respondent will face on release into the community. While those stresses of transition to the community may not be greater than those to which the respondent is subject in prison, they will be different in kind. The respondent's reaction to those stresses has not been tested. In the community the respondent, if not subject to a supervision order, will be subject to a much lesser degree of control and support and the opportunities to return to old habits will be much greater. Both psychiatrists describe the respondent's current mental state as vulnerable.
Antecedents and criminal record
83 The respondent's antecedents and criminal record are described above.
Risk of further serious sexual offences
84 Having regard to the evidence to which I have referred, I am of the view that there is a high but not immediate risk that, if released into the community without a supervision order, the respondent will commit further serious sexual offences against children.
Community protection
85 The terrible damage which results from child sexual abuse is well established. It is illustrated by the tragic effects of early childhood sexual abuse on the respondent. Persons in the community should be protected from those consequences which would flow from future offending by the respondent.
Other matters
86 It is also relevant to note that the respondent is a reportable offender who will have reporting obligations, and may potentially be subject to a protection order, made under the Community Protection (Offender Reporting) Act 2004 (WA) (CPOR Act). This legislation will operate even if neither a continuing detention nor a supervision order is made under the DSO Act. However, in all the circumstances I do not consider the reporting obligations under this legislation, and the potential for an application for a protection order to be made, to adequately protect the community against the risk of the respondent's future offending.
Conclusion as to serious risk
87 Having regard to all of the above matters, I am satisfied to the requisite standard that there is an unacceptable risk that, if the respondent is not subject to a continuing detention order or a supervision order, he will commit serious sexual offences in the future.
Continuing detention order or supervision order
88 I must now decide whether the respondent should be detained pursuant to a continuing detention order or released into the community pursuant to a supervision order. The submission advanced by counsel for both parties was that the risk presented by the respondent could be adequately managed by the conditions of a supervision order. I accept those submissions.
89 It is established that the paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a predisposition to making a continuing detention order. It cannot be simply assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order. The court should choose the order that is least invasive of the respondent's liberty while ensuring an adequate degree of protection of the community.34
90 This is one of the cases where the protection of the community is best advanced by a supervision order rather than a continuing detention order. The respondent has established a period of sustained mental stability and voluntary compliance with medication prescribed for his bipolar disorder. He has actively engaged with prison programs designed to teach him protective behaviours. The respondent has good insight into his psychiatric conditions. He feels a great deal of shame for his sexual offences, and has been prepared to volunteer information about offences which would not have been detected without his spontaneous confessions. The respondent presents to the psychiatrists as open to treatment and supervision, and recognising the value of supervision. The respondent has taken as many steps as he can towards his rehabilitation in custody. I find it difficult to imagine that there will be a better opportunity for successful release of the respondent into the community. In my view, the frustration and distress which would naturally flow from the imposition of a continuing detention order may be counterproductive by damaging the respondent's mental state and willingness to comply with the court's requirements. The fact remains that the respondent will inevitably be released into the community one day. It is appropriate to take this opportunity for transition into the community while the respondent has made real progress in his rehabilitation, and is receptive to further supervision.
91 I am satisfied that if the respondent were again to follow his pathway to reoffending, the conditions I will impose will detect the risk before it translates into further serious sexual offending. The respondent will be prohibited from having unsupervised access to children, or from consuming alcohol or illicit drugs, and will be required to receive psychiatric and psychological treatment. His mental state will be regularly monitored by a forensic mental health team. The supervision for which the conditions will provide should detect any failure to take medication, deterioration in the respondent's mental state or alcohol or drug consumption which is likely to be a precursor to offending. The respondent must expect that any significant failure to comply with the conditions will lead to his return to custody.
Proposed accommodation
92 One matter that caused me concern was the arrangements for the respondent's accommodation on release. Dr Febbo saw stable accommodation as being of significant benefit to the respondent's metal state.35 Dr Wojnarowska and Dr Cooney both saw stable accommodation as one of the most important protective factors. In that context, what is proposed is that the respondent transition to a house rented by his brother, L, with whom another brother, A, lives.
93 There are a number of positive features to this arrangement. The respondent will have family support which is hoped to be a positive influence on his mental state. There are no children or females residing in the house. L has indicated to the Department that for health reasons he does not consume alcohol or illicit substances and does not allow people who are consuming alcohol or illicit substances onto his property.
94 I was initially concerned that the accommodation was only being offered on a temporary basis, which would not provide the stability which the respondent requires. However, after giving her initial evidence, Ms Henshall obtained clarification from L that he was prepared to support his brother for a maximum of 12 months and would not make his brother homeless within that time. That significantly addresses my concern, as does Ms Henshall's evidence that the Department is well versed in transitioning persons supervised under the DSO Act between accommodations, and provides significant support to persons in the respondent's position in finding accommodation.
95 The desktop risk assessment provided by police indicates, in a non-specific manner, a number of locations which could be of concern (such as parks, schools and liquor outlets) within a 2 km radius of the proposed residence. That is not unusual for a location within the Perth metropolitan area. The risks of the respondent potentially attending these locations will be addressed by the GPS monitoring to which the respondent will be subject, which facilitates the creation of exclusion zones and alerts being sent to authorities when the offender enters those zones.
96 Another aspect of the proposed accommodation which initially concerned me was that the respondent's brother A, who also resides at the address, is a reportable offender under the CPOR Act. Obviously, it is far from ideal for two sex offenders to reside in the same location. However, in the particular circumstances of this case I am satisfied that the living arrangements will not give rise to an unacceptable risk. Dr Febbo did not see this as a major problem in a situation where the respondent's mental state was stable, avoiding the use of alcohol, taking medication and seeing a clinical psychologist. With those protective measures being put in place, Dr Febbo did not consider the mere fact that A had committed offences in the past would destabilise the situation.36 The respondent's pathology was not such that there was a particular concern of someone else reinforcing his already present deviance.37 Dr Wojnarowska saw the residence arrangement as less than ideal but thought that the situation could be managed.38 However her concerns were reduced in circumstances where A currently works as a fly in/fly out worker on a four weeks on one week off cycle.39 On balance, while the situation is less than ideal, I am satisfied that the risks presented by the respondent can be adequately managed if he resides at the proposed location. No better available location has been identified.
97 Having considered the evidence and the above matters, I am satisfied that the risk to the community presented by the respondent can be reduced to an acceptable level by the conditions of a supervision order.
Duration of supervision order
98 Both psychiatrists were of the view that the respondent's supervision in the community should continue for five years. In Dr Febbo's view this period will give the respondent an additional period of stability that would enable the respondent to remain stable once external controls were removed. Dr Febbo was of the view that a very long period of supervision (by which he meant 15 - 20 years) might have a detrimental effect on the respondent's mental state. Further, Dr Febbo noted that, in five years' time, the respondent would be 59 years of age and that studies indicate that, after 60, the risk of reoffending rapidly declines.
99 Dr Wojnarowska was also of the view that too long a period of supervision would be counter-productive. She expressed the view that the whole purpose of rehabilitation was to make the respondent accountable and in control of his own emotions and behaviour. She thought that 'overall control would be demoralising in the end'.40 Ultimately, she too recommended a period of supervision of five years.
100 I accept the recommendations of the psychiatrists as to the appropriate length of the supervision order, which I will specify as five years.
Conditions
101 I accept the evidence of both psychiatrists that what is involved in the circumstances of this case is a balancing exercise. The conditions should be framed so that the respondent's rehabilitation is supported and not be so intrusive or oppressive that they are unnecessarily damaging to the respondent's vulnerable mental state. On the other hand the conditions must be framed so as to ensure, so far as practicable, that circumstances which may lead to reoffending are detected before the reoffending occurs.
Condition 11: supervision
102 I agree with the submissions of counsel for the respondent that condition 11, which requires the respondent to be under the supervision of a community corrections officer (CCO) and to comply with the lawful orders and directions of a CCO, is an unnecessary replication of condition 4. I will not impose this condition.
Condition 14: approval of employment
103 I do not see any real benefit to be gained in the circumstances of this case in requiring the respondent to obtain a CCO's approval before commencing or changing employment. It seems highly unlikely that the respondent would be able to take on employment working with children even absent any conditions. Further, the conditions will prevent the respondent from having unsupervised or unauthorised access to children in any event. I do not consider the condition that the respondent obtain the prior approval of a CCO for employment to be necessary.
104 However, I do consider it appropriate to order that the respondent advise the CCO of any employment or change in employment. This will enable the CCO to make inquiries to ensure that the condition for unsupervised access is being complied with. I will amend the proposed condition 14 to delete 'without the prior approval of' and substituting 'without first notifying'. I will also insert the word 'reasonably' before 'directed'.
Condition 16: programs to address offending behaviour
105 Condition 16 requires the respondent to comply with programs designed to address offending behaviour generally. The respondent's contention is that the condition should relate only to programs designed to address the risk of serious sexual reoffending. Given the purpose and scope of the DSO Act, I accept that this condition should be directed to the risk of serious sexual offending and not offending generally. I will delete the words 'offending behaviour and/or'. In the end the Director did not oppose this approach.
Condition 19 and 20: permission to enter and search
106 Conditions 19 and 20 require the respondent to give police permission to enter and search his residence, vehicle and person. Given the serious risks that alcohol and drug use present as a pathway to the respondent's offending, it seems to me that these conditions should be imposed to increase the likelihood of detection, despite their intrusive nature.
Conditions 27: not to commit offences
107 Condition 27 requires the respondent not to commit any non-sexual offence for which the maximum penalty is imprisonment and involves violence, threats of violence or the possession of weapons or offensive instruments. The respondent points out that the conditions should be directed to preventing serious sexual offending. While that is correct, the psychiatric evidence is that there are common contributors to the respondent's sexual and non-sexual offending. Non-sexual offending of the kind referred to in this condition will be an indicator of risk of sexual offending.
108 This is not because the respondent's past violent offending is a cause of his past sexual offending. The effect of the psychiatrists' evidence was that there was no causal relationship of this kind. However, if the respondent is committing serious violent offences, the conditions which in the past have prompted the commission of serious sexual offences are likely also to be present. Engaging in conduct of the kind described in condition 27 should itself be an available ground for the issue of a summons or warrant under s 21 of the Act or for the court to make an order under s 23 of the Act. For that reason, I consider the condition proposed by the Director to be appropriate.
Conditions 34 - 39: compulsory medical treatment
109 In my view conditions 34, 38 and 39, which require the respondent to undertake treatment directed by a medical practitioner, are overly broad. The psychiatric evidence was that the most critical medication was psychotropic medications to deal with the respondent's mental state, in particular mood stabilisers. In any event the psychiatrists' evidence was that that a medical practitioner would not direct a patient to take medication without their informed consent outside the auspices of the Mental Health Act 1996 (WA).
110 Neither psychiatrist saw the need for a condition requiring compliance as to psychotropic medication, as each considered the treating psychiatrist would have the power to make a community treatment order under the Mental Health Act 1996 (WA) if necessary. Dr Febbo had no objection to a condition which required the respondent to consent to recommended treatment, as opposed to empowering a medical practitioner to issue a direction. Dr Wojnarowska was concerned that forced medication may be counterproductive because it interfered with the therapeutic relationship and would not promote self-management.
111 Notwithstanding Dr Wojnarowska's concerns, I think it is appropriate to impose a condition requiring the respondent to take recommended psychotropic medication prescribed and recommended by a treating psychiatrist. Mental instability is a primary risk factor for relevant reoffending. The respondent's past compliance with medication regimes has been sporadic. In my view, compliance with recommended treatment for the respondent's psychiatric conditions should be a condition of supervision. Ceasing to take recommended medication should have immediate consequences under the DSO Act even if there may also be consequences under the Mental Health Act 1996.
112 I will delete conditions 34 and 38. I will also delete the text up to the comma in condition 39, and substitute the text 'take psychotropic medication prescribed by a treating psychiatrist in accordance with the psychiatrist's recommendations'.
113 I will also amend conditions 35, 36 and 39 to require relevant directions to be reasonable. The Director accepted that it was implicit that only reasonable directions would be authorised, and I think there are advantages to making the implicit requirement express.
Condition 40: not to associate with sexual offenders
114 Proposed condition 40, as proposed for amendment by the Director, will require the respondent not to associate with a person known to have committed a sexual offence other than a lineal relative, unless such association is authorised in advance by a CCO. The respondent argues that this condition is unnecessary as it simply reflects a prohibition which will apply in any event. However, that prohibition, contained in s 557K of the Criminal Code (WA), operates on a warning given by a police officer. Given the particular risks associated with the respondent, the non-association requirement should apply regardless of action taken by a police officer. In my view the proposed condition, as amended by the Director, is appropriate.
Condition 43: not to be in the presence of females affected by alcohol
115 The Director accepted that this initially proposed condition was unnecessary and should be deleted.
Conditions 49 and 50: not to form and to report 'domestic' relationships with a person who has children under 16 years in their care
116 The respondent advanced some concerns about these conditions, but in the end did not substantively oppose then. Given the respondent's history of offending against children with whom he is in a family relationship these conditions do appear to me to be necessary.
Condition 51: disclose past offending to persons in intimate relationship
117 The respondent's counsel submits that this condition is likely to preclude the respondent from forming any lawful adult sexual relationships. The psychiatrists noted that an adult relationship which provides a lawful sexual outlet for the respondent may be a protective factor against sexual offending. However, they considered the requirement only to be necessary for partners associated with children (not necessarily in their care).
118 In light of that evidence, I will modify the proposed condition by adding after the words 'intimate relationship' the words 'that involve the respondent having contact with children associated with that person'.
Publication order
119 Part 5A of the CPOR Act gives the Commissioner of Police a discretion to publish a photograph and the locality of a person subject to a supervision order under the DSO Act. In exercising that power, under s 85G(2) of the CPOR Act, the Commissioner must give the offender an opportunity to make submissions under s 85G(3) of the Act. The Commissioner is required to have regard to those submissions when exercising the discretion to publish that information. The Commissioner may also take into account the matters referred to in s 85I of the CPOR Act, which include whether publication of the identifying information would increase the risk of the person committing offences.
120 Section 85G(2)(a) of the CPOR Act permits the Commissioner to publish a photograph and the locality of a person under a supervision order if the supervision order 'does not provide that the person's photograph and locality are to be published under this section'.
121 The respondent asks the supervision order provide that his photograph and locality are not to be published under s 85G of the CPOR Act. This is requested for two reasons. First, the publication of those identifying details is said to be unlikely to reduce the risk to the community of the respondent committing a serious sexual offence, as the psychiatric evidence is that the respondent is highly unlikely to sexually assault a stranger. Second, the publication of his photograph and locality on a sex offender website could increase the risk of reoffending by having a destabilising effect on a person in a vulnerable mental state who is deeply ashamed of his conduct.
122 I accept the submissions advanced in that regard by counsel for the respondent, and will include in the supervision order provision that the respondent's photograph and locality are not to be published under s 85G of the CPOR Act.
Orders
123 For the reasons I have given, I am prepared to make a supervision order subject to conditions which I have discussed. I will ask counsel to confer with each other to settle the final terms of the supervision order consistently with the reasons I have given.
1 Exhibits P1 and P2.
2 Exhibit P3.
3 Exhibit P1, pages 47 - 48.
4 Exhibit P1, pages 309 - 317.
5 Exhibit P1, pages 318 - 320.
6 Exhibit P1, pages 321 - 325.
7 Exhibit P1, page 263.
8 Exhibit P1, page 299.
9 Exhibit P1, pages 263 - 264.
10 Exhibit P1, pages 86 - 87.
11 Exhibit P1, page 85.
12 Exhibit P1, page 90.
13 Exhibit P1, pages 89, 91.
14 Exhibit P1, page 14.
15 Exhibit P1, pages 195 - 197.
16 Exhibit P1, pages 207 - 209.
17 Exhibit P1, pages 211 - 224.
18 Exhibit P1, page 227.
19 Exhibit P1, page 267.
20 Exhibit P1, page 279.
21 Exhibit P1, page 277.
22 Exhibit P1, pages 300 - 301.
23 Exhibit P1, page 307.
24 Exhibit P1, page 305.
25 Exhibit P1, page 307.
26 Section 4 of the DSO Act.
27 Section 8 of the DSO Act.
28 See s 3 of the DSO Act (definition of 'serious sexual offence') read with s 106A of the Evidence Act 1906 (WA) and sch 7 to the latter Act.
29 Section 7(1) of the DSO Act.
30 Section 7(2) of the DSO Act.
31Director of Public Prosecutions (WA) v GTR[2008] WASCA 187; (2008) 38 WAR 307, [21].
32GTR [26], citing Director of Public Prosecutions (WA) v Williams (2007) 35 WAR 297 [63].
33 Section 42(3) of the DSO Act.
34Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 [14], [52]; The State of Western Australia v Latimer [2006] WASC 235 [22] - [24]; The State of Western Australia v West [2013] WASC 14 [52]; Director of Public Prosecutions (WA) v W [2014] WASC 257 [18].
35 ts 148.
36 ts 112.
37 ts 127.
38 ts 176 - 177.
39 ts 202 - 203.
40 ts 212.
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