Director of Public Prosecutions (WA) v Narrier [No 2] - [2014] WASC 20

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- NARRIER [No 2] [2014] WASC 20

CORAM: JENKINS J

HEARD: 26 NOVEMBER & 3 DECEMBER 2013

DELIVERED : 14 JANUARY 2014

PUBLISHED : 28 JANUARY 2014

FILE NO/S: MCS 13 of 2008

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
PATRICK LEONARD NARRIER
Respondent

Catchwords:

Dangerous Sexual Offenders Act 2006 (WA) - Interpretation - Contravention proceedings - Relevance of respondent's status as sentenced prisoner serving sentence for non-sexual offences - Factual basis for determining the contravention of the supervision order

Legislation:

Dangerous Prisoner (Sexual Offenders) Act 2003 (Qld), s 13
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 22, s 23, s 24, s 37, s 40
Evidence Act 1906 (WA), s 36
Serious Sexual Offenders Detention and Supervision Act 2009 (Vic), s 9

Result:

Psychiatrists preparing s 37 reports to provide opinions based on alternative factual scenarios

The issue in the Act s 23(1)(b) is whether at the time the contravention proceedings are determined there is an unacceptable risk that the respondent, if on a supervision order but not on an indefinite detention order, would commit a serious sexual offence within an undefined reasonable time from the making of the order

The Respondent's status as a sentenced prisoner is a relevant, but not necessarily determinative, factor in the contravention proceedings

Category: A

Representation:

Counsel:

Applicant: Mr T B L Scutt and Ms K Robinson
Respondent: Ms M R Barone and Mr N Terry

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers

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

Attorney‑General for the State of Queensland v Kanaveilomani [2013] QSC 86
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
JENKINS J:
(This decision was delivered orally and has been edited from transcript)

Introduction

By an application dated 18 March 2013, the Director of Public Prosecutions (the DPP), applied for an order under the Dangerous Sexual Offenders Act 2006 (WA) (the Act), s 23, that the respondent be made the subject of a continuing detention order or an amended supervision order. I understand that his final position is that a continuing detention order ought to be made (the contravention proceedings). The contravention proceedings are brought pursuant to the Act s 22. These directions concern the timing of the hearing of the contravention proceedings, the factual basis for it and the issues to be determined at it.

Background

A detailed history of the matter is set out in the DPP's document entitled 'Particulars of Alleged Contraventions - Statement of Material Facts', dated 2 December 2013 (the particulars) which are agreed to by both parties.
In summary, in 2009, the respondent was declared to be a serious danger to the community and he was made the subject of a five year supervision order under the Act. The conditions of the supervision order were amended on 7 December 2009 due to contraventions that year.
The respondent has pleaded guilty, and is yet to be sentenced for charges against the Act, s 40A, which allege that at various times in 2011, he contravened his supervision order by failing to attend for supervision, urinalysis and counselling as directed, and by using prohibited drugs.
On 24 May 2012 the respondent was sentenced in the District Court on his plea of guilty to one count of aggravated burglary and one count of stealing a motor vehicle, both offences having been committed on 21 April 2011, during the currency of the supervision order. He was sentenced to a total of 5 years imprisonment. That term was backdated to commence on 6 May 2011. The respondent has been in custody since that date. He will become eligible for parole in respect of the District Court sentence in May 2014, and that sentence will conclude in May 2016.
A trial of the issues was held by the sentencing judge to determine the facts relevant to sentence. Following the trial of the issues, the sentencing judge made findings of fact which are relevant to the contravention proceedings. However, another finding of fact which the DPP asks this court to make for the purpose of the contravention proceedings was not made by the sentencing judge.

Issue – construction of the Act s 23(1)(b)

There is an issue between the parties as to the precise issue for determination under the Act, s 23. Section 23(1)(b) states:
(1)If the court is satisfied on the balance of probabilities that the person who is subject to the supervision order is likely to contravene, is contravening or has contravened a condition of the supervision order, the court may:
(a)make an order amending the conditions of the supervision order, and if the court considers it appropriate in order to achieve compliance with the supervision order, or necessary in order to ensure adequate protection of the community, make any other order, or;
(b)if the court is also satisfied that there is an unacceptable risk that if an order under this paragraph were not made, the person would commit a serious sexual offence, order that the person be detained in custody for an indefinite term for control, care or treatment.
The first issue between the parties arises from the terms of s 23(1)(b) and its application to a case such as this where the respondent to the application is serving a sentence for a non‑sexual offence.
The first matter which s 23, says that the court must be satisfied of before an order can be made under s 23 is that the respondent is likely to contravene, is contravening, or has contravened a condition of the supervision order. Once that decision is made, the section provides that the court may either amend the supervision order or make any other order or, if the court is satisfied that there is an unacceptable risk that if a continuing detention order were not made, the person would commit a serious sexual offence, order that the person be detained in custody for an indefinite term for control, care or treatment. That latter option is provided for in s 23(1)(b).
It is clear that before the court could amend the supervision order or make any other order under s 23(1)(a), it has to consider whether, instead, a continuing detention order should be made under s 23(1)(b). However, it is not clear, and the parties are in dispute about what the court should take into account, and the timeframe that should be used to assess whether there is an unacceptable risk that if a continuing detention order were not made, the respondent would commit a serious sexual offence.
The possibilities that have been suggested in this regard are first that the court should consider whether at the time of the hearing of the contravention proceedings application there is an unacceptable risk that if a continuing detention order were not made, the respondent would commit a serious sexual offence (option 1). This is the respondent's position, and he submits that the question should be determined taking into account his current circumstances. He says that as he is in custody under sentence, that risk would be almost negligible and, therefore, a continuing detention order would not be justified.
If contravention proceedings were focused solely on the risk at the date of the hearing of the application, or at the date of decision, dangerous sexual offenders who happened to be in custody at the time of the hearing of the contravention proceedings, but whom were an unacceptable risk of committing a serious sexual offence if in the community would not be made the subject of a detention order, even if they were due for release shortly. This does not appear to be consistent with the intention of parliament.
A second possible interpretation which has been suggested is that the court should consider whether at the time the respondent is due for release from his current sentence, or any additional sentence, there would be an unacceptable risk that if an indefinite detention order were not made, he would commit a serious sexual offence (option 2).
As the respondent is in custody and his release date is uncertain, it would be very difficult to prognosticate what his risk of offending would be at the date of his release. At the last hearing, I suggested that an alternative would be to assume that his risk of offending would be what it was at the time of the hearing. However, on considering this further option I have rejected that option, as it just does not make sense, having regard to the provisions of the Act and the circumstances of the case.
A third possible interpretation is that the court should consider whether at the time of the hearing of the contravention proceedings application there is unacceptable risk that if an indefinite detention order were not made, the respondent would commit a serious sexual offence. However, instead of deciding the question having regard to the respondent’s then status as a sentenced prisoner as in option 1, the court should consider the risk as if the respondent was at liberty in the community on a supervision order. That is, it should disregard the sentence of imprisonment which the respondent is serving (option 3).
If option 2 was chosen, the DPP may apply to adjourn the contravention proceedings to a date closer to the respondent's release date. However, this would not entirely resolve the issues that arise under s 23(1)(b), as the court would still have to decide whether the fact that the respondent was in custody at the time of the adjourned hearing was a factor to be taken into account or not. Further, an adjournment may well not be fair to the applicant or the respondent for other reasons which were canvassed at the hearing.
The DPP favours option 3, but says that if the court does not agree, then option 2 is to be preferred to option 1. The DPP says option 1, would produce the perverse result that dangerous sexual offenders would be released into the community on supervision orders, because they, perchance, were in custody at the time the contravention proceedings application was heard.
Option 3 would avoid the issues which arise in respect of option 1, but the respondent says that disregarding an existing term of imprisonment for a non‑sexual offence is not consistent with the present tense wording in s 23, or with the parliamentary intention encapsulated in s 24 that imprisonment for a non‑sexual offence should extend a supervision order, but not otherwise result in a detention order. The respondent submits that disregarding his circumstances, such as whether he is subject to an external control is contrary to what the court traditionally does when deciding whether a person is a serious danger to the community under the Act s 7(1).
I leave it for another case to decide on the construction of s 7. That is a broader issue than simply deciding on the construction of s 23(1)(b), which is my task.
The first step in construing s 23(1)(b) is to look at its wording. I note that s 23 presumes that the person who is the subject of the contravention proceedings application is on a supervision order. So that when a court asks itself whether it is satisfied of the matter in s 23(1)(b), it does so in the knowledge that the person in question is subject to a supervision order. Next, the question in s 23(1)(b) requires the court to consider the risk of offending if the person the subject of the application is not subject to a continuing detention order. Only those two circumstances are prescribed and assumed by the section. To summarise them again; first, the person is subject to a supervision order, and secondly, that he is not subject to a continuing or an indefinite detention order. I see no reason to exclude or mandatorily include any other circumstance as being potentially relevant to whether there is an unacceptable risk that the person would commit a serious sexual offence for the purpose of s 23(1)(b). In my opinion, the court should consider all other relevant circumstances pertaining to the person, in order to decide whether such a risk exists, and whether it is unacceptable. It is up to the court to decide, having regard to the facts of the particular case, what circumstances are relevant, and which are not.
I do not accept that the fact that a person is in custody should be necessarily excluded from consideration, and neither do I think that it should be assumed that the person is at liberty in the community. For these reasons, I exclude option 3. However, neither do I think that the fact that a person is in custody under sentence will be determinative of the issue to be decided in s 23(1)(b). To that extent, I do not agree entirely with the respondent's preferred option, option 1, either.
First, I will explain why other factors, such as incarceration are not to be necessarily excluded or mandatorily included when determining the issue in s 23(1)(b). Parliament could have specified the matters that are to be taken into account in deciding the issue in s 23(1)(b) and matters which are not to be taken into account. There are examples of other Parliaments having prescribed such matters. In the Dangerous Prisoners (Sexual Offenders) Act2003 (Qld) s 13, the Queensland Parliament said that when a court is deciding whether there is an unacceptable risk that a respondent will commit a serious sexual offence, the court is to consider that issue on the basis the prisoner is released from custody, or if the prisoner is released from custody without a supervision order being made. In the Serious Sex Offenders Detention and Supervision Act 2009 (Vic), s 9(4), it has been stated that in determining whether or not the offender poses an unacceptable risk, the court must not consider the means of managing the risk or the likely impact of a supervision order on the offender.
In comparison, the Western Australian Parliament has chosen to include the two presumptions I have specified but not others. I do not believe that the court should add words to the section which, in my view, are not required for the section to have purpose or to meet the objectives of the Act.
Secondly, there are sound reasons why in some cases it would be appropriate to take into account circumstances pertaining to the control and management of a respondent, such as whether he was incarcerated and for how long, when deciding whether the relevant risk exists for the purpose of s 23(1)(b). This is because when s 23(1)(b) is applied, the respondent has already been found to be a serious danger to the community and has been placed on a supervision order. The focus in the section is on determining whether, in light of a contravention of that order, the risk posed by the respondent is unacceptable and so cannot be managed in the community. In those circumstances, it is only fair to the respondent that circumstances pertaining to the management of his risk should be taken into account.
In this context I have considered specifically whether it is reasonable to exclude from consideration that the person is in custody, or, looked at in another way, whether it should be assumed that he is on a supervision order in the community. I have decided that it is not. There are obvious circumstances where to do so would work an injustice to the applicant. For example, if an offender had a bad record for committing predatory sex offences whilst in custody but not when he was in the community, would it be suggested by the applicant, the DPP, that the fact that the respondent was in custody should be ignored for the purpose of deciding the risk in s 23(1)(b)? I think not. It would be clearly relevant. Similarly, it may work an injustice to a respondent to fail to take into account that he is serving a very long sentence and therefore not going to be an unacceptable risk of committing sexual offences against young children in the community, if that is what the circumstances show his risk is.
That concludes my remarks about what factors are relevant to a decision under s 23(1)(b). Next, I will explain why the fact that a person is in custody under sentence at the time contravention proceedings are held or determined will not, in my view, be necessarily determinative of the issue to be decided in s 23(1)(b), even though such custody should be, or may be, taken into account in deciding the issue in s 23(1)(b).
The parties' submissions in this regard were predicated on the basis that the determination of risk in s 23(1)(b) has a narrow temporal ambit. I disagree. When the court makes a decision under s 23(1)(b) as to risk, or indeed in s 7 of the Act in respect of risk, it does not ask itself whether on the day of the hearing the respondent is an unacceptable risk of committing a serious sexual offence that day, or even on the day of decision, or even within six months of the decision. Rather, it considers whether on the day of the hearing, the respondent is an unacceptable risk of committing a serious sexual offence within an undefined reasonable time from the making of the order.
Various matters establish this. For example, it is a matter of common sense that at the time soon after a decision under the Act is made, in most cases, a respondent will be motivated not to offend. However, the court always looks beyond this immediate period in order to determine the risk of re‑offending and whether it is an unacceptable risk. The court looks at the likelihood of re‑offending over a period of time, not at a fixed and narrow point in time. That period of time may differ depending on the circumstances of the particular respondent. Supervision orders are often for a period of years, say, five to 10 years, and this recognises that the risk that is being considered and managed is one that is for a similar length of time. It may be longer for a young person and shorter for an older offender. These are matters for the court to consider, having regard to the particular facts of the case.
I also note that when psychiatrists give reports for the purpose of the Act, they do not give an assessment of risk limited to a certain date, or even limited to a certain period of time. They consider all the facts of the case and the circumstances of the respondent when giving their risk assessment. They also take into account risk assessment tools, such as the Static‑99, which gives a risk assessment in the likelihood of re‑offending over a five year period.
This is further evidence that what is being considered is a risk of re‑offending over a period of time rather than at a particular point in time. The reason why incarceration at the time of a hearing or decision is not usually mentioned in psychiatric reports or judgments under the Act as being relevant to risk, is not because it must be ignored, but because it is usually temporary that it is not important to the risk assessment. To refer to it would simply be to add an irrelevancy to the already difficult task of assessing risk.
The respondent submits that the Act is against prognostication and that the High Court in the decisions it has made in respect of indefinite detention is too. I see the situation differently. I do not believe that the Act is against prognostication; I believe that it requires it. However, it requires the court to make prognostications involving the risk of re‑offending, having regard only to cogent and reliable evidence, and it requires the court to be persuaded to a high level of certainty before it decides on issues such as risk of re‑offending, which requires such prognostication.
The High Court in considering legislation that permits indefinite imprisonment has required courts also only to act on cogent and reliable evidence, and to be persuaded to a high level of certainty before making such orders. It has also referred to the difficulty in making a prediction about a person's behaviour a long time in the future, but this is in the context of directing courts to act on cogent and reliable evidence, and to be persuaded to a high level of certainty before making such decisions: McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121.

Applying these principles to this case, I am of the view that both I and any psychiatrist ordered to prepare a report for the contravention proceedings should take into account that the respondent is under sentence, that he may be released at any time on parole from May 2014 onwards and that he will be released at the end of his sentence in May 2016. The risk assessment performed by the psychiatrist should, as is usually the case, look at the respondent’s risk over time, and having regard to any consideration personal to the respondent which the psychiatrist believes is relevant to his or her assessment of risk.
As this, in my view, is what a psychiatrist normally does in these cases, I am unsure that it is necessary for any particular direction to be given to the psychiatrists in this case. However, I will hear the parties in respect to that issue.
I will now say something about the interpretation of the Act s 23, having regards to the Act s 24. This is because Ms Barone made submissions to me about that, and it may be helpful for the parties for me to indicate what my general view is in that regard.
The respondent says that s 24 provides that if a person who is subject to a supervision order is sentenced to a term of imprisonment for any offence other than a sexual offence as defined in the Evidence Act (1906), s 36A, whether committed before or after the supervision order was made, the period for which the supervision order applies is extended by any period after the order is made during which the person is in custody serving the sentence of imprisonment. Therefore, he says that s 24 applies to him, and it means that Parliament does not intend that he will be subject to a continuing detention order or contravention proceedings simply because he committed a non‑sexual offence whilst on the supervision order.
In my view, such an interpretation is too simplistic. Section 24 alone may have applied to the respondent if the DPP had not brought the contravention proceedings. Now that those proceedings are on foot, the respondent is subject to s 23 and to the possibility of a continuing detention order being made if the requirements of the section are met. Nothing, in my view, in s 24 prohibits the DPP from bringing contravention proceedings under s 23, unless the alleged contravention involves serious sexual offending.
Other submissions were put to me about the prejudicial effect of choosing option 3 over option 1. I am not going to deal with all those arguments. Having decided on the proper construction of s 23(1)(b), the parties need to address the section on that basis, regardless of whether the construction is prejudicial to them or not.
I also heard submissions about Attorney‑General for the State of Queensland v Kanaveilomani [2013] QSC 86. I do not regard it as necessary for me to deal with that case in any great detail. The case is distinguishable on two bases; the first is that the statutory wording of the test for the making of an order under the comparable Queensland Act is different to the wording in s 23. As I have mentioned, the Queensland provision expressly states that the court is to consider the respondent's risk on the basis that he is released from custody or released from custody without a supervision order being made. Those words do not appear in s 23(1)(b).
The second basis on which to distinguish the case is that it was decided on the assumption that the court has a discretion not to make either a supervision or a continuing detention order, even if it is satisfied that the respondent is a serious danger to the community. In the Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297, and the Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, the Court of Appeal determined that such a discretion does not exist under the Act, s 7. It has not been decided whether such a discretion exists under the Act, s 23, and I have not heard submissions from the parties about that issue. However, the fact that, ultimately, the judge's decision in Kanaveilomani was influenced by the fact that the judge had a discretion not to make an order even if the requirements of the section were met, and it is doubtful whether this court has the same discretion, is a second basis for deciding that Kanaveilomani is not of direct assistance.

Issue – factual basis for determining the nature of the contravention

The final issue which was canvassed at the directions hearing was what facts are relevant to prove the contravention of the supervision order. This issue arises because when the respondent committed the District Court offences, he grabbed the female complainant who was in the home he burgled and said to her that if she did not give him some money, he would make her perform a sexual act on him. He then released her and she looked for some money. The respondent then walked towards a bathroom door and said to the female complainant, 'Give me the money now or I will take you to the bathroom,' and pushed the bathroom door. The female complainant then managed to escape. The respondent did not commit any sexual offence.
At the District Court sentencing, the respondent did not admit that he either said those words or did the actions referred to above. A trial of the issues was held, and the sentencing judge found the respondent said the words and did the actions. However, no finding was made and none was asked for by the State as to whether the respondent intended to carry out his threat of committing a sexual offence or whether he was motivated to do so.
The parties agree that the contravention proceedings should be determined on the basis of the facts found by the District Court sentencing judge. Additionally, the DPP says that this court should find that the respondent opportunistically formed an intention, albeit briefly, to sexually offend against the complainant, but that he abandoned the intention a short time later. The DPP says that he abandoned that intention because of his co‑offender being nearby and because the female complainant's partner, whose exact location, capabilities and intentions were unknown to him, was also nearby. The DPP says that those are the reasons why he abandoned the intention, not because he managed to control his desire.
The DPP says that if the court found that the respondent intended to commit a sexual offence against the female complainant, it would be relevant to the psychiatrist's determination of risk and the issues which the court must decide in the contravention proceedings. Assuming that the court is of the opinion that it is still open to make disputed factual findings relevant to contravention proceedings, the DPP says that a determination of the facts should be made prior to the psychiatrist or psychiatrists preparing reports under the Act s 37.
However, an alternative view, which the respondent supports, is that the court may wish to take into account a psychiatrist's view about the respondent and his motivations before deciding the facts. Also, it would not be efficacious for the court to decide that the respondent had no intention to commit a sexual offence on the complainant, only to have other evidence led at the hearing, which would warrant a different decision.
An alternative option canvassed with counsel is for the factual findings to be delayed until the end of the contravention proceedings and for any psychiatrist who is asked to prepare a report for those proceedings to be asked to give the opinions as to risk of the respondent committing a serious sexual offence, having regard to both factual circumstances.
In that alternative situation, the psychiatrist would also be given the option of giving their own expert opinion as to the respondent's intention at the time he committed the District Court offences.
A third alternative is that the court may decide not to order a psychiatric report for the contravention proceedings. Psychiatric reports are not mandatory for contravention proceedings.
At the conclusion of the hearing I asked the parties to confer with a view to preparing draft directions to a psychiatrist or psychiatrists.
As a consequence, Mr Scutt for the DPP forwarded to my associate and to Ms Barone an email, dated 4 December 2013, containing suggested directions in this respect. I have not heard the respondent's view about those directions, but, in my view, directions similar to those contained in paragraph 3 of Mr Scutt's draft would be appropriate.
I am not minded to make an interim finding about a disputed matter of fact before I have heard all the evidence in the case, including the psychiatrist's evidence and before I have heard the parties' submissions in respect of the whole of the evidence. That is why I favour directions to the psychiatrists in terms, or in similar terms to that contained in paragraph 3.
It should be clear from what I have said that, in respect of the proper construction of the Act s 23(1)(b), I do not believe that the psychiatrists should be directed in any of the alternative forms of that draft paragraph 4. I have raised for the parties' consideration whether the psychiatrists need to be given directions in that regard at all.