Director of Public Prosecutions (WA) v O'Brien
[2015] WASC 163
•8 MAY 2015
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- O'BRIEN [2015] WASC 163
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 163 | |
| 08/05/2015 | |||
| Case No: | DSO:1/2015 | 8 APRIL 2015 | |
| Coram: | SIMMONDS J | 9/04/15 | |
| 41 | Judgment Part: | 1 of 1 | |
| Result: | Supervision order made | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) ROSS FINCH O'BRIEN |
Catchwords: | Criminal law Dangerous Sexual Offenders Act 2006 (WA) Application for div 2 order Whether unacceptable risk of committing further serious sexual offences Whether serious danger to the community Whether detention order or supervision order appropriate No contest as to whether unacceptable risk or choice of order to make |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 3, s 7, s 8, s 14, s 17, s 27, s 29, s 38, s 41, s 42 Evidence Act 1906 (WA), s 106A |
Case References: | Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 Director of Public Prosecutions (WA) v Misko [2012] WASC 259 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 Director of Public Prosecutions (WA) v Yates [2014] WASC 136 Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 Italiano v The State of Western Australia [2009] WASCA 116 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
ROSS FINCH O'BRIEN
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for div 2 order - Whether unacceptable risk of committing further serious sexual offences - Whether serious danger to the community - Whether detention order or supervision order appropriate - No contest as to whether unacceptable risk or choice of order to make
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 3, s 7, s 8, s 14, s 17, s 27, s 29, s 38, s 41, s 42
Evidence Act 1906 (WA), s 106A
Result:
Supervision order made
Category: B
Representation:
Counsel:
Applicant : Mr M T Trowell QC
Respondent : Mr D J McKenzie
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : David McKenzie Legal Pty Ltd
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Misko [2012] WASC 259
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions (WA) v Yates [2014] WASC 136
Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v West [2013] WASC 14
- SIMMONDS J:
(This judgment was delivered orally and has been edited against the transcript.)
Introduction
1 The Director of Public Prosecutions (the DPP) has applied for orders, under s 14 and s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), pursuant to s 8 of the DSO Act, in relation to Mr O'Brien (the DPP's application).
2 On 12 February 2015, McKechnie J made orders under DSO Act s 14 for, among other things, detention in custody of Mr O'Brien until the conclusion of the hearing and judgment on the application for a 'Division 2 order' on 9 April 2015 (the interim detention order).
3 DSO Act s 17(1) provides for a choice between two forms of order. The form of order under s 17(1)(a) is an order for the detention of the offender in custody for an indefinite term for control, care, or treatment, an order defined in s 3(1) as a 'Division 2 continuing detention order' (detention order). The form of order under s 17(1)(b) is an order that at all material 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, an order defined in s 3(1) as a 'supervision order' (supervision order). These are the two forms of what the DSO Act calls in s 3(1) a 'Division 2 order'.
4 The hearing of the DPP's application was over one day. It had originally been listed for two days. However, the positions the parties arrived at in the days immediately before the commencement of that longer period produced the shorter period.
5 In his orders of 12 February 2015, which included the interim detention order, McKechnie J also provided for Mr O'Brien to undergo examination by two named psychiatrists for the purposes of preparing reports to be used at the hearing before me. The two psychiatrists were also to liaise with the Department of Corrective Services (the Department) as to a management plan (if appropriate) for Mr O'Brien to be supervised in the community.
6 These are my reasons for my decision on the DPP's application.
7 I first describe the applicable law, by describing the legislative framework and applicable principles in respect of that framework.
8 Then I describe the evidence before me, Mr O'Brien's background and his history of offending, focusing on the offences, each of which is a 'serious sexual offence' within the meaning of the DSO Act s 3(1).
9 I then describe Mr O'Brien's history under the programmes he has undergone in prison.
10 Next I review the evidence of the two psychiatrists as to Mr O'Brien's risk of re-offending, particularly serious sexual re-offending, and as to his management and treatment needs.
11 I will then address all of the specific matters to which the DSO Act requires me to have regard for making my determination as to whether or not I find Mr O'Brien is a serious danger to the community within the meaning of s 7(1). By the terms of s 17 it is only if I so find that the matter of making the choice of a Division 2 order in respect of Mr O'Brien arises.
12 It was not in contest that I should find Mr O'Brien was a serious danger to the community.
13 Further, it was not in contest that the choice of Division 2 order I should make in this case is that of a supervision order.
14 However, I note that under the DSO Act the determination of those two matters is for me.
15 As I will explain, I have determined that Mr O'Brien is a serious danger to the community. I must therefore make the choice between the Division 2 orders provided for in DSO Act s 17. I will address the making of the choice in the ensuing section of my reasons.
16 As I will also explain, I have determined that the choice I should make is of a supervision order for Mr O'Brien.
17 The concluding section of my reasons summarises my findings and indicates the orders I would make.
18 I turn then to the legislative framework and applicable law.
The legislative framework and the applicable law
19 As I have indicated, the framework has two components. One relates to the making of a finding that an offender is a serious danger to the community, in DSO Act s 7. The other relates to the choice of a Division 2 order the court must make if it so finds, in s 17.
20 DSO Act s 7 is as follows:
7. Serious danger to the community
(1) Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has 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.
(2) The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied -
(a) by acceptable and cogent evidence; and
(b) to a high degree of probability.
(3) In deciding whether to find that a person is a serious danger to the community, the court must have regard to -
(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;
(b) any other medical, psychiatric, psychological, or other assessment relating to the person;
(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future;
(d) whether or not there is any pattern of offending behaviour on the part of the person;
(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;
(f) whether or not the person's participation in any rehabilitation program has had a positive effect on the person;
(g) the person's antecedents and criminal record;
(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;
(i) the need to protect members of the community from that risk; and
(j) any other relevant matter.
22 DSO Act s 17 is as follows:
17. Division 2 orders
(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.
23 The relevant principles relating to the proper construction and effect of the DSO Act s 7 and s 17 were not in dispute before me. As noted in Director of Public Prosecutions (WA) v Yates [2014] WASC 136 [5] (Martin CJ) they are conveniently set out by Corboy J in The State of Western Australia v West [2013] WASC 14 [52], as follows:
(a) Section 7(1) of the DSO Act provides that before the court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The expression 'serious sexual offence' has the meaning given to that term in s 106A of the Evidence Act 1906 (WA) (s 3 of the DSO Act).
(b) The DPP carries the onus of satisfying the court about that matter and the court must be satisfied by acceptable and cogent evidence and to a high degree of probability. The expression 'high degree of probability' is incapable of further definition. Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof: Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307 [28] (Steytler P and Buss JA; and see at [34] for a further elaboration on what the expression means in its application).
(c) In deciding whether to find a person is a serious danger to the community the court must have regard to each of the matters specified in s 7(3) of the DSO Act.
(d) It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence: DPP v GTR [21].
(e) The term 'unacceptable risk' is not defined in the DSO Act. However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made: Italiano v The State of Western Australia [2009] WASCA 116 [4] and [46] (Buss JA).
(f) In a passage that was expressly approved in DPP v GTR, Wheeler JA stated in Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; 35 WAR 297 [63] - [64]:
'In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.'
(g) The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced: DPP v GTR [97] (Murray AJA).
(h) The court must identify what, if anything, constitutes the risk and factor or factors makes that risk unacceptable and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence: DPP v GTR [34].
(i) The court must make a continuing detention order or a supervision order once it is found that the respondent is a serious danger to the community: Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; 38 WAR 217. The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a pre-disposition to making a continuing detention order. As Hall J observed in Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312, '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order' [14].
(j) The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 and Decke.
24 There is a further matter of the principles relating to the proper construction and effect of DSO Act s 17 described in DPP v Yates as follows (referring to, among other authorities, Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297):
Having regard to established principles of statutory construction, there are two anomalies evident in these principles. First, two different expressions in the Act ('an unacceptable risk that … the person would commit a serious sexual offence' and 'serious danger to the community') have been given precisely the same meaning. Second, in s 17 the word 'may' has been construed as 'must', and consequently as conveying a duty to make an order, rather than a discretion. However, those aspects of the construction of the Act have been endorsed by decisions of the Court of Appeal of this State ([DPP v Williams]; Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307), and must be taken to represent the current state of the law. In any event, for the reasons which follow, the differing nuances of meaning which might be given to the relevant provisions of the Act would have no bearing upon the outcome of these proceedings.
In some previous cases, questions have arisen as to whether the Act imposes an obligation upon executive government with respect to the provision of resources relating to the management and treatment of offenders falling within the purview of the Act, and as to the extent to which the court should proceed on the basis of an assumption that those resources will be provided (see for example, Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95; Attorney-General (Qld) v Francis [2006] QCA 324; [2007] 1 Qd R 396; Attorney-General (Qld) v Lawrence [2008] QSC 230; Winters v Attorney-General (NSW) [2008] NSWCA 33; Director of Public Prosecutions (WA) v Pindan [No 2] [2012] WASC 234; Director of Public Prosecutions (WA) v Alvisse [No 6] [2013] WASC 154; Attorney-General (Qld) v Sybenga [2009] QCA 382). There may come a point in time at which the resolution of those issues may be relevant to Mr Yates. However, for the reasons which follow, that point has not yet been reached [6] - [7].
25 I also note the following further matter of principle from DPP v Williams (Wheeler JA, Le Miere AJA agreeing):
Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2), it would have been necessary for him to have made a continuing detention order [86].
26 Finally, I note that the DSO Act s 27 provides for the giving of reasons for making a continuing detention order or a supervision order as follows:
(1) If a court makes a continuing detention order or a supervision order, it must give detailed reasons for making the order.
(2) The reasons must be given at the time the order is made.
Evidence before me
27 DSO Act s 41 provides for deciding certain matters on the papers. It does so as follows:
1. This section applies to how the court may decide -
(a) whether it is satisfied, as required by section 14(1), that there are reasonable grounds for the belief described in that subsection; or
(b) whether it is satisfied as required by section 20.
(2) The court may decide entirely or partly from a consideration of the documents filed, without the offender or person subject to the order or witnesses appearing and without the offender or person subject to the order consenting to, or being heard on, the making of the decision.
(3) In making its decision, the court may receive in evidence -
(a) any document relevant to the antecedents or criminal record of the offender or person subject to the order;
(b) anything relevant contained in the official transcript of any judicial proceeding against the offender or person subject to the order for a serious sexual offence, or contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind.
(2) Before the court makes a decision or order on the hearing of an application it must, if the evidence is admissible -
(a) hear evidence called by the DPP; and
(b) hear evidence given or called by the offender or person subject to the order, if that person elects to give or call evidence.
(3) Except as modified by subsection (4), ordinary rules of evidence apply to evidence given or called under subsection (2).
(4) In making its decision, the court may receive in evidence -
(a) any document relevant to a person's antecedents or criminal record;
(b) 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.
30 One exhibit was a one volume book of materials for the hearing, tendered into evidence by the DPP by consent as exhibit 1. There was no objection to any of its contents. I follow the approach of referring to particular contents of exhibit 1 by reference to the number given it in exhibit 1's Table of Contents, as in exhibit 1.42. This, as will be seen, is the report of one of the two psychiatrists.
31 The other exhibit document is one setting out the conditions of a supervision order proposed to be made by me, also tendered into evidence by the DPP by consent as exhibit 2. I return to exhibit 2 in more detail at a number of points below. Its terms, with one amendment I describe, appear as the orders I made at the hearing in Appendix 1 to these reasons.
32 The other form of evidence before me was testimony by four witnesses called by the DPP. A report from each of those witnesses was included in exhibit 1.
33 There was evidence in both forms from the two psychiatrists named in McKechnie J's orders of 12 February 2015.
34 One psychiatrist was Dr Sam Febbo, consultant psychiatrist with about 20 years' experience in forensic psychiatry, in which he has published. His report dated 30 March 2015 was exhibit 1.42.
35 The other psychiatrist was Dr Gosia Wojnarowska, a consultant psychiatrist with a sub-speciality in Forensic and Child and Adolescent Psychiatry. She was Clinical Director of the State Forensic Services of Western Australia in the Inpatient unit. Her report dated 28 March 2015 was part of exhibit 1, as exhibit 1.41.
36 Both psychiatrists have had experience over several years preparing reports for and testifying in proceedings under the DSO Act.
37 The two other witnesses, both also called by the DPP, were Ms Sarah Ballantyne and Ms Erin Hutchings.
38 Ms Ballantyne was a counselling psychologist who was Senior Counselling Psychologist with the Specialist Psychological Service in the Department. Ms Ballantyne was the author of the document Proposed Dangerous Sex Offender Management Plan dated 24 March 2015, which was part of exhibit 1, as exhibit 1.39.
39 Ms Hutchings was a Senior Community Corrections Officer, Public Protection Unit in the Department. She was the author of the document Community Supervision Assessment dated 25 March 2015, which included the document Proposed Supervision Order Conditions, and which was part of exhibit 1, as exhibit 1.40.
40 No other witnesses than the four listed were called by the DPP. None were called by or for Mr O'Brien.
41 I turn now to describe the background of Mr O'Brien and also describe his offending. My descriptions are drawn from the evidence before me and are not as it appears to me in contest.
Background
42 Mr O'Brien was born on 17 December 1951, the middle child of three, and was raised on a farm in this State. He described an uneventful childhood. This was except for two incidents he reported of being 'groped', one at YMCA facilities and one in bathrooms which he had attended for football. However, he indicated that this childhood sexual abuse had not affected him significantly. At the same time, he reported that he had noticed he had begun to feel more distant from his family after that time.
43 Mr O'Brien reported that in his teens his best friend was killed in a motor vehicle accident and another one died of a drug overdose. He also sustained a knee injury which prevented him from participating in sport at the level at which he had previously performed.
44 Mr O'Brien reported that in his late teens he had learnt that his father had committed sexual offences against female children. However, his father was not convicted for those offences until 1994. On 30 September 1994 his father was sentenced to a total of 2 years and 3 months' imprisonment for 12 offences of indecent dealings with a child under 14 and three offences of carnal knowledge of a girl under 13.
45 Mr O'Brien finished school in year 12. He secured work with the Road Traffic Authority as a clerk and progressed with that employer over a period of seven years to 'Officer-in-Charge'.
46 Over the next three years Mr O'Brien worked in farming with his brother. The venture failed because of factors related to the weather.
47 Mr O'Brien then moved to Saudi Arabia where he worked for a year, returning to Australia after his contract there ended and paying some of the money owed to creditors of the farming venture.
48 After a period of about two months spent with his parents who were touring around Australia, in 1981, Mr O'Brien went to the United States with a cousin. After a period of a holiday there he began to work for that cousin's company. He continued working for the company for about 10 years, during which he spent a period of time in England setting up a similar company.
49 During that period in the United States Mr O'Brien married. This was in order to obtain a green card. That marriage lasted for two years. He had had a few intimate relationships in his early adulthood, with one of them lasting for three years. Mr O'Brien reported that after his return to Australia he had not entered into any further relationships.
50 Mr O'Brien returned to Australia in 1990. He left all of his assets in the United States. He reported having left that country after having become overloaded with work several months prior to his departure and after having suffered what he described as a 'nervous breakdown'.
51 Following Mr O'Brien's return to Australia, he experienced a period of depression during which he did not leave his house for 12 months. A friend of his, with whom he had left a power of attorney to manage his affairs in the United States, embezzled all of his assets. Mr O'Brien did not pursue the matter because of a lack of energy resulting from his depression. He also reported having become less oriented to material things at that time.
52 Subsequently, Mr O'Brien began working in farming again and also did work related to computers, although he did not obtain regular employment.
53 He began to coach children in Little Athletics in the early or mid 1990s.
54 On 7 December 2000, Mr O'Brien was convicted in the Perth District Court of the first of what have been his two sets of sexual offences. I will describe both in more detail below. After a period of imprisonment for that first set of offences, he was released on parole in March 2002 and completed that order successfully in July 2003.
55 Between 2002 and 2006 Mr O'Brien supported himself on the Disability Pension, which he received after having been diagnosed while he was in prison with epilepsy and chronic fatigue syndrome. He supplemented his income by working with computers.
56 On 27 January 2006, Mr O'Brien was taken into custody in relation to the second of the two sets of sexual offences. In April 2008, in the District Court, he was sentenced to a term of imprisonment for those offences backdated to 27 January 2006. As a result of an amendment of his sentence in July 2008, and the refusal of his two applications for parole, that sentence was due to expire on 27 March 2015. As a result of the interim detention order he has remained in custody after that date.
Offending other than sexual offences
57 The Western Australia criminal history for Mr O'Brien, compiled 8 December 2014 at 11:36:37, has no convictions for any offending other than the two sets of sexual offences below.
58 However, I will also note below that there is an indication of matters pending in the United States for him.
Sexual offending
59 Turning then to his sexual offending, as I have indicated, Mr O'Brien was convicted of sexual offending on two occasions, on 7 December 2000 for the first set of sexual offences, and 4 April 2008 for the second set of sexual offences.
60 The first set of sexual offences comprised 11 of indecent dealings with a child under 13 years. Mr O'Brien was sentenced to 2 years' imprisonment for each. These sentences were combined to produce a total of 4 years' immediate imprisonment with eligibility for parole. His convictions were on his pleas of guilty.
61 Each of the offences in the first set of sexual offences was a serious sexual offence within DSO Act s 3(1) 'serious sexual offence', read with Evidence Act s 106A.
62 The first set of sexual offences was committed by Mr O'Brien over a period of approximately 10 years, between a date as early as 1 January 1991 and a date as late as 18 April 1999. The victims were five females aged between 8 and 12 years.
63 The indecent dealings included Mr O'Brien both touching the victims' genital areas and touching their breasts (on the outside of their clothing); placing his hands inside the victims' shorts; kissing victims on their mouths; and taking one of the hands of one of the victims and placing it down the front of his trousers. He committed those acts while engaged under the Little Athletics programme. He spent time alone with victims while coaching them at sporting and recreational facilities. He also developed close relationships with their families and was often invited to family events and dinners. A number of the indecent dealings were committed at the family homes of the victims.
64 The second set of sexual offences comprised of a total of 18 offences. Seven of those offences were of indecent dealings with a child under 13 years. Another seven of those offences were of indecently recording a child under 13 years. Another three were of possession of child pornography. The remaining offence was sexual penetration of a child under 13 years. Mr O'Brien's convictions for those offences were on his pleas of guilty.
65 For the offences of indecent dealings, Mr O'Brien was sentenced to terms of imprisonment of between 10 and 18 months.
66 For the offences of indecently recording he was sentenced to sentences of between 10 and 20 months.
67 For the offences of possession he was sentenced to terms of imprisonment of 10 months each.
68 And for the offence of sexual penetration he was sentenced to a term of imprisonment of 10 years.
69 The sentences of imprisonment for this offending were combined for a total effective term of immediate imprisonment, with eligibility for parole, of 10 years' imprisonment, a term which was amended on 11 July 2008 to one of 9 years and 2 months.
70 Each of the offences in the second set of sexual offences, except for the three of possession, was a serious sexual offence within DSO Act s 3(1) 'serious sexual offence', read with Evidence Act s 106A.
71 The second set of sexual offences as charged occurred, as to the indecent dealings, the indecent recordings and the sexual penetration, on a date unknown between 1 December 2005 and 25 January 2006; and as to the possession on 26 January 2006. The victims were sisters, aged 6 and 8.
72 Mr O'Brien had befriended the victims' mother and family while he had been engaged by them as a computer repairman. He had gained the mother's trust and was given permission to babysit the children on several occasions. The majority of the offences in the second set of offences were committed on the one occasion after he had taken the victims to the beach before returning to his home. He coerced the victims to undress and be photographed in various sexual poses. He then directed each of them to take photographs while he was engaged in sexual behaviour or posing with the other. The sexual acts included touching the victims' vaginas and included the penetration of the vagina of one of them before he ejaculated on to her stomach. He downloaded the images he acquired on that occasion on to his home computer before showing the images to both victims. When his computer was confiscated by police examination of it revealed 7,351 images and 16 video files of children, some as young as 3 years old, engaged in various sexual acts including oral sex and intercourse.
73 Information from the Western Australian Police Intelligence unit indicates that Mr O'Brien has a number of outstanding felony warrants from the United States for sexual offending. That offending was allegedly committed in that country in 1991. It includes one offence of sexual abuse in the first degree; seven offences of sodomy; and one offence of rape. However, extradition to the United States is not being pursued by the relevant authorities. The offences remain, on the information available to me, matters of allegation only.
74 I turn now to programmes Mr O'Brien has undergone while in prison, and certain related matters. I understand none of this description to be in contest.
Programmes in prison
75 Mr O'Brien has completed two Sex Offender Treatment Programs, one at Karnet Prison Farm in 2001, a Medium Sex Offender Treatment Program (MSOTP); and the other at Bunbury Regional Prison in 2012, an Intensive Sex Offender Treatment Program (ISOTP). Both are group programmes. There are no indications he has undertaken any course of individual psychological counselling.
76 I now describe a number of matters in respect of each of the MSOTP and ISOTP he completed. These matters are drawn principally from the evidence of Ms Ballantyne, including her report, exhibit 1.39.
77 Mr O'Brien received a relatively positive report in the MSOTP from the facilitators of the programme. However, his own account of his participation and any gains he made as a result of that participation was more negative. He had acknowledged that his participation in the programme had been minimal. He attributed this to his having avoided accepting the seriousness of his actions or the possibility he might re-offend in the future. He had focused on comparisons of his own offences with those of other group members and concluded his actions had not been as severe. Nor did he view himself as posing any future risk. On that basis he had said he had gained nothing from his participation. On his release he did little to avoid high risk situations, which ultimately led to him re-offending.
78 Mr O'Brien received a positive completion report from the facilitators of the ISOTP. He spoke in positive terms about his experiences in the programme. He emphasised the requirement that he focus on his own behaviour and experiences rather than comparisons of himself with other group members. He was able to describe situational, emotional and psychological precipitants to his offending.
79 I turn now to the evidence of the two psychiatrists, Dr Wojnarowska and Dr Febbo.
The evidence of the two psychiatrists
80 There was no objection to any of the evidence of Dr Wojnarowska or Dr Febbo. Both of them have substantial experience as consultant psychiatrists. Both of them have expertise in the assessment of offenders for the purposes of proceedings such as these.
81 There were some differences, including some significant differences, between the opinions of the two psychiatrists. However, I consider that in relation to the matters of the greatest significance for my purposes, those differences significantly reduce, if they do not altogether disappear, when those differences are closely examined.
82 I begin with Dr Febbo, who testified first before me.
83 Dr Febbo had two interviews with Mr O'Brien, one of a duration of about three hours and the other of a duration of one hour 15 minutes to one hour 30 minutes.
84 As well, Dr Febbo had access to materials provided by the DPP to the psychiatrists for the purposes of the present hearing, under DSO Act s 38(1). Those materials appear to have been the materials in exhibit 1, being exhibit 1.1 - 1.29, as well as some further materials, apparently medical reports.
85 Dr Febbo's overall assessment of the risk of a further sexual offence by Mr O'Brien was that that risk was high if he were not the subject of a detention or supervision order. However, Dr Febbo added that it was not his opinion that continuing detention was likely to decrease Mr O'Brien's risk of re-offending. Dr Febbo further added that it was likely that a supervision order could be crafted to manage Mr O'Brien's level of risk in the community.
86 As will be seen, Dr Febbo used the same actuarial and clinical assessment tools as Dr Wojnarowska. It appeared that he arrived at similar, if not identical, assessments on each of them to those at which she arrived.
87 Dr Febbo in his report, exhibit 1.42, noted the following from his use of the clinical assessment tool, the RSVP. Mr O'Brien demonstrated the risk factors of psychological coercion in sexual violence, escalation of sexual violence and chronicity of sexual violence. Diversity of sexual violence was partially or possibly present. Physical coercion in sexual violence was absent.
88 It will be noted that these conclusions are very similar to if not identical with those of Dr Wojnarowska in respect of the same matters.
89 Dr Febbo in his report, exhibit 1.42, noted that the risk factors and problems with self-awareness and extreme minimisation or denial of sexual violence were partially or possibly present. The risk factors of problems with stress or coping, attitudes that supported or condoned sexual violence and problems resulting from child abuse were partially or possibly present.
90 It will be noted that Dr Febbo assessed the matters just described at a higher level, if not a dramatically higher level, than did Dr Wojnarowska.
91 Dr Febbo in his report, exhibit 1.42, noted the presence as a risk factor of sexual deviance. However, the risk factors of psychopathy, problems with substance use, major mental illness and violent or suicidal ideation were absent.
92 It will be noted that Dr Febbo's conclusions just described are very similar to those of Dr Wojnarowska in the same respects.
93 Dr Febbo in his report, exhibit 1.42, noted the presence for Mr O'Brien of the risk factor of problems with intimate relationships. Risk factors of problems with non-intimate relationships and problems with employment were partially or possibly present. However, non-sexual criminality was absent.
94 It will be noted that these conclusions are very similar to, if not identical with, those of Dr Wojnarowska in respect of the same matters.
95 Dr Febbo in his report, exhibit 1.42, noted that the risk factor of problems with treatment was partially or possibly present. However, the risk factor of problems with planning and problems with supervision was absent.
96 Again, it will be noted that these conclusions are very similar to, if not identical with, those of Dr Wojnarowska in respect of the same matters.
97 However, as will be seen, a more significant difference emerges from later in Dr Febbo's report in exhibit 1.42. In Dr Febbo's summary he makes particular mention of Mr O'Brien going on to re-offend after the MSOTP, despite a relatively positive assessment in relation to his participation in the programme. This, in Dr Febbo's opinion, raised two possible issues. The first was that Mr O'Brien's history remained of questionable reliability. The second was that Mr O'Brien remained treatment resistant notwithstanding the relatively favourable, more recent, ISOTP completion report. However, as will be seen, Dr Febbo's opinion did not prevent him arriving at his preference as to the management of Mr O'Brien's risk of re-offending in terms of a supervision order with suitable conditions. I return to that preference and those conditions below.
98 Dr Febbo testified that there was, as a factor relevant to risk, the matter also of Mr O'Brien's age and physical condition. I understood his opinion in those respects to be very similar to that of Dr Wojnarowska, below. Dr Febbo's report, exhibit 1.42, describes Mr O'Brien's physical condition in terms of nocturnal/clonic seizures, idiopathic hypersomnolence and hypertension, a description similar, save for the inclusion of hypertension, to that of Dr Wojnarowska.
99 On the actuarial tool of the STATIC-99R, which I describe in a little more detail below, Dr Febbo in his report, exhibit 1.42, noted that Mr O'Brien's total score placed him in the low-moderate risk category without indicating the score number. This is very similar to the position described in Dr Wojnarowska's report, exhibit 1.41.
100 On the actuarial tool of the PCL-R, Dr Febbo in his report, exhibit 1.42, indicated he gave Mr O'Brien a total score of 13 points out of a possible 40, placing him significantly below the cut-off traditionally used to diagnose psychopathy. Mr O'Brien's score relating to interpersonal and affective features of psychopathy was at a higher level than for his score on the social deviance scale. Dr Febbo noted that psychopathy was significantly related to sexual recidivism. However, the strongest effect was obtained when the PCL-R was combined with a measure of sexual deviance. At the same time, there is no indication that the PCL-R results for Mr O'Brien were such as to engage a concern on either account.
101 It will be noted that Dr Febbo's conclusions as I have described them are comparable to those of Dr Wojnarowska.
102 Overall, Dr Febbo's evidence was that, relying particularly on his use of the RSVP tool, and having regard to the re-offending scenarios he described, which I will reach, the factors accounting for his overall assessment of the risk of a further sexual offence by Mr O'Brien if he was not the subject of a detention or supervision order as high were the following.
103 First, there was Mr O'Brien's long standing and entrenched sexual deviance in the form of paedophilia, which was the major risk factor.
104 Second, there were the personality factors for Mr O'Brien of a long-standing difficulty in intimate relationships, a somewhat 'isolatory' lifestyle with difficulties in the areas of self-confidence and self-esteem combined with depression and being far more comfortable in engaging with young children than with adults.
105 Third, there was Mr O'Brien's offending involving the gradual development of trust with victims in the first set of sexual offences over a significant period of time and in the second set of offences over a relatively short period of time, and with the conclusion Dr Febbo drew that Mr O'Brien was capable of impulsive offending.
106 Fourth, Mr O'Brien's history, as recounted by him, remained of questionable reliability with implications for the possibility of his re-offending, notwithstanding what he had indicated about his participation and what he had learnt from the ISOTP.
107 As to the fourth factor, as will be seen, Dr Wojnarowska did not share the view of Mr O'Brien described in it.
108 Dr Febbo's evidence was that if Mr O'Brien were to re-offend the most likely future re-offending scenario would be similar to his earlier offending. There were two such possible re-offending scenarios Dr Febbo described, together with a third, which he considered much less likely.
109 In the first re-offending scenario, Mr O'Brien might be able to develop a relationship with a family in which there were relatively young pre-pubescent children. Over a period of time he would be able to obtain the trust of the family. Then, when he was in the company of the children, he would take the opportunity to inappropriately touch them. This inappropriate touching might even occur while adults were in the area, particularly if the adult were some distance away from the child. It was likely that over time this offending would escalate, particularly if Mr O'Brien were given the opportunity to be alone with the child or children. The escalation might involve inappropriate touching from outside the clothing to inside the clothing, and might go on to involve penetration that included digital and possibly penile penetration.
110 It may be noted that this re-offending scenario corresponds to that described by Dr Wojnarowska as the most likely re-offending scenario for Mr O'Brien.
111 Another possible re-offending scenario was more similar to Mr O'Brien's second set of sexual offences. In that scenario, Mr O'Brien might develop a relationship with a family with young children. However, there would be no re-offending until Mr O'Brien had the opportunity to be alone with the children. A number of sexual offences, including sexual penetration, might occur.
112 The third re-offending scenario might occur in the absence of psychological coercion and grooming. Mr O'Brien might develop an increased preoccupation with inappropriate sexual fantasies against a background of his sexual deviance, thus increasing his sexual frustration. In that context if Mr O'Brien found himself alone with a child or children he might well impulsively re-offend even if the children were strangers.
113 While this third scenario was much less likely than the previous two, the concern was that this form of offending was much less likely to be avoided even in the context of a supervision order.
114 In all three re-offending scenarios, Dr Febbo's opinion was that there was a potential for considerable adverse psychological consequences for the victims, in addition to significant physical injuries to them.
115 In his testimony, Dr Febbo stated that were Mr O'Brien to have access to child pornography this might well escalate his risk of re-offending by making his sexual deviance more intense. Dr Febbo noted in the history of Mr O'Brien his use of adult pornography, which had gone on to the modelling of adults as children, and then to child pornography in stories and videos.
116 Dr Febbo's recommendations for the management of Mr O'Brien in the community were the following. In his testimony Dr Febbo made it clear his preference for the management of Mr O'Brien's risk of re-offending was for supervision in the community rather than a detention order, where that supervision was under suitable conditions in a supervision order. It will be seen that was also the preference of Dr Wojnarowska.
117 Individual psychological input was required in order to further address Mr O'Brien's sexual offending. In that context the issue of his sexual deviance could be addressed and monitored. In addition, it was likely that Mr O'Brien would encounter significant adjustment issues as he moved from his long period of incarceration into the community. Psychological input would be a benefit in addressing that stress and any concerns arising from that transfer. Psychological input might also be useful in addressing his long-standing and fluctuating low mood.
118 Mr O'Brien would require regular medical review. In addition, consideration could be given to commencing a trial of antidepressant medication.
119 Any supervision order would require that Mr O'Brien had 'absolutely' no contact with children, either supervised or unsupervised. In his testimony, Dr Febbo stated this did not mean a prohibition of forms of contact which I understood to be the unavoidable normal incident of a person being permitted to go out of their accommodation into the community. However, strict controls were required. Dr Febbo's attention was drawn to the provision in exhibit 2 regarding contact with children. He indicated his only concern was with that condition permitting authorisation of such contact by a Community Corrections Officer in the Department (CCO), to the extent that provision might allow for blanket authorisations as opposed to case-by-case ones. As will be seen, this matter is addressed by an amendment of the conditions in exhibit 2, which I describe below.
120 Mr O'Brien should not be allowed to have access to pornography. This might well involve a complete ban on Internet use. In his testimony, Dr Febbo stated he recommended a complete ban unless there were alternative ways of avoiding him being exposed to pornography, which I understood to be both adult and child pornography.
121 Mr O'Brien would require supervision and monitoring through the Department and the Sex Offender Management Squad (SOMS). The usual requirements for an environment check and GPS monitoring would be necessary in his case. In his testimony, Dr Febbo appeared to me to commend a team-based approach involving those agencies through their representatives of a kind which the proposed conditions in exhibit 2 provide for, as I consider to be the effect of the testimony of Ms Ballantyne and Ms Hutchings.
122 Dr Febbo also testified he was quite confident, based on what he knew of Mr O'Brien, that Mr O'Brien would comply with the conditions of the kinds Dr Febbo commended in a supervision order. This was especially having regard to Mr O'Brien's personality, particularly its obsessional aspects.
123 It will be noted those views of Dr Febbo correspond to views of Dr Wojnarowska.
124 Dr Wojnarowska testified after Dr Febbo. Dr Wojnarowska had two interviews with Mr O'Brien, one of three hours and the other of two and a half hours. As well, Dr Wojnarowska had access to materials provided by the DPP to the psychiatrists for the purposes of the present hearing, under DSO Act s 38(1). Those materials appear to have been the materials in exhibit 1 being exhibit 1.1 - 1.29.
125 Dr Wojnarowska's overall assessment of the risk of Mr O'Brien re-offending sexually in the absence of supervision in the community was high. This assessment was arrived at based on Dr Wojnarowska's clinical analysis of risk factors for Mr O'Brien as guided by the RSVP, or Risk for Sexual Violence Protocol (Hart, Kropp, Klaver, Logan & Watt 2003). I note that the Risk for Sexual Violence protocol that Dr Wojnarowska as well as Dr Febbo used is associated with Hart, Kropp, Klaver, Logan & Watt (2003).
126 Dr Wojnarowska's assessment of that level of risk was greater than her assessment using actuarial methods, being ones that, unlike the structured clinical guides such as the RSVP, use mainly static risk factors, and produce scores that could be related to statistical reference data.
127 Dr Wojnarowska used two actuarial methods or instruments. One was the STATIC-99R (Hanson & Thornton 1999). The other such instrument Dr Wojnarowska used was the Hare Psychopathic Checklist - Revised (PCL-R) (Hare 1991 and 2002).
128 Dr Wojnarowska in her report exhibit 1.41 noted the following from her use of the RSVP. Mr O'Brien possessed a risk factor of chronicity of sexual violence, which referred to the multiplicity of offences over a period of time. He had been convicted of multiple offences over a period of years against female pre-pubescent children. However, the acts undertaken had been similar in nature and degree of depravity. They had been facilitated by similar coercive methods. Therefore, Dr Wojnarowska did not consider diversity in sexual violence to be a risk factor in Mr O'Brien's case.
129 There was evidence of an escalation of sexual violence as a risk factor. Mr O'Brien had offended against children outside his family. His offending occurred where the time between meeting the victims and offending against them was much shorter than previously. The number of offences which he committed in one day was comparable to the number of offences he had committed previously over 10 years. Finally, and most importantly, the nature of his offending became much more serious.
130 Psychological coercion, although not physical coercion, was a significant risk factor for Mr O'Brien. His offending had not involved physical coercion in that it had not arisen in the course of an act of sexual violence. He controlled his victims in a more general, non-sexual context, through the use of dominance and grooming. He engaged in a gross violation of the inherent trust of the parent and carer against a young dependent child with a gross exploitation of close social relationships.
131 Mr O'Brien did not exhibit the risk factor of extreme minimisation or denial of sexual violence. He did not possess attitudes that supported or condoned sexual violence. Although he had the motivation to offend, in his paedophilia, and as such had cognitive distortions which served to rationalise his behaviour, these had largely been addressed and corrected during his ISOTP. He did not display a callous attitude or lack empathy towards his victims.
132 Mr O'Brien did not possess the risk factor of problems with self-awareness in that he appeared to have insight into the factors and processes that had placed him at risk of sexual violence. He was aware of his previous lack of boundaries in relation to children.
133 There were problems with stress or coping which were significant risk factors. However, Mr O'Brien's own assertions with respect to his childhood sexual abuse led Dr Wojnarowska to conclude that she would not consider this factor was important in his risk of re-offending.
134 Mr O'Brien possessed the sexual deviance risk factor stemming from the diagnosis of him as having paedophilia. He had a sexual interest in pre-pubescent children. There were repeated acts of a sexually deviant and depraved character. Dysthymia, meaning a persistent depressive disorder, and an avoidant personality disorder were both present. Both had a strong relevance to his risk of re-offending and should continue to be a focus of future treatment.
135 Mr O'Brien demonstrated problems with intimate relationships. He acknowledged having avoided intimate relationships. Those relationships he had had tended to be of a shorter duration. However, there was a protective factor here of no evidence of hostility towards women.
136 Non-intimate relationships were also a risk factor for Mr O'Brien. This was manifested by his offending against children of friends. At the same time, however, he had a supportive family, who remain supportive of him. On balance, Dr Wojnarowska concluded that the matter of non-intimate relationships was not a major risk factor. She further suggested that the presence of strong supports was a protective factor moderating his overall high risk of sexual re-offending.
137 Employment was not a risk factor for Mr O'Brien. His early history indicated significant periods of employment stability. He presented with realistic plans. He was eligible for DSP, which I understood to be the Disability Support Pension. He was motivated to perform and capable of performing some casual work in his brother's business.
138 Mr O'Brien did not have any history of non-sexual criminality. This was a reflection of his personality. He had good behavioural controls and he lacked any anti-social attitudes.
139 Mr O'Brien did not have problems with treatment. He had taken advantage of the ISOTP and was considered to be achieving many goals. Furthermore, his attitude had consistently been positive. He reported benefiting from participation and was confident that the programme assisted him with becoming more self-aware and gaining insight into his behaviour, acting in a more assertive manner and creating clearer boundaries in relation to others.
140 Planning was not a risk factor for Mr O'Brien. He had developed a capacity for planning to prevent re-offending. He was able to articulate that during the ISOTP. He repeated this during his interview with Dr Wojnarowska. Specifically, he displayed a strong motivation to avoid any contact with children which might potentially expose him to high risk situations. He had also begun to develop open communication with the family members who would be his primary supports in the community.
141 There was no problem with supervision. Mr O'Brien had not been oppositional to or defiant against custodial staff while in prison. He had been fully compliant with the prison routine and requirements. He had not indicated any negative attitudes towards the Department or SOMS staff. In view of his personality structure, and more specifically his need for social acceptance and the lack in him of anti-social traits, the risk of not cooperating in relation to possible conditions of a supervision order, should one be made, was low.
142 Dr Wojnarowska in her testimony acknowledged the opinion of Dr Febbo regarding the reliability of Mr O'Brien's history. However, she did not share that opinion. This was based on her assessment of Mr O'Brien drawing on her own experience as a forensic psychiatrist.
143 There was an additional consideration in relation to risk. This was the amelioration of such risk associated with a person of Mr O'Brien's age as well as with the medical complications for him of chronic fatigue syndrome or equivalent. Mr O'Brien reported he did not maintain sound physical erectile function. However, Dr Wojnarowska noted this would be difficult to confirm in a clinical situation.
144 On the actuarial tool of the STATIC-99R, Mr O'Brien achieved a score of two. That placed him in the low-moderate risk category on that instrument.
145 On the actuarial tool of the PCL-R, Mr O'Brien's total score placed him in the lower range. He did not reach the threshold for psychopathy. He did not possess many psychopathic features. His scores for Factor 1 (Interpersonal/Affective) and Factor 2 (Social Deviance) were exceptionally low. This was relevant in discussing future re-offending and management.
146 Overall, Dr Wojnarowska's evidence in her report exhibit 1.41 and her testimony was that, apparently relying particularly on her use of the RSVP tool, the major factor accounting for her opinion that Mr O'Brien was at high risk of committing serious sexual violence if not subject to supervision in the community was the presence in him of a deviant sexual interest in pre-pubescent children of a long-standing kind, manifesting itself in his history of sexual offending. However, that did not mean that interest had not been present previously. Further, Mr O'Brien in his interviews with Dr Wojnarowska had acknowledged that interest could re-emerge in what I understood to be a behavioural form.
147 Dr Wojnarowska's evidence was that the most likely form of re-offending involving sexual violence would be sexual penetration involving digital or penile penetration. His most likely victims would be pre-pubescent females to whom he had pre-existing access and had been able to groom through a position of trust. His most likely motivation would be the gratification of his deviant sexual interest in children.
148 The psychological harm to the child or children involved would be that of enduring psychological disturbance characterised by low self-esteem, vulnerability to the development of psychiatric disorders, and emotional fragility.
149 However, the potential for his sexual violence to escalate to serious life-threatening violence was low, as that would not be consistent with the selection of a victim or victims and the grooming practices Mr O'Brien had in the past employed.
150 In her testimony, Dr Wojnarowska made it clear that her preference for managing Mr O'Brien's risk of re-offending was for supervision in the community under suitable conditions in a supervision order.
151 Dr Wojnarowska's recommendations as to strategies for such management of Mr O'Brien's risk of re-offending were the following.
152 There should be psychological treatment of Mr O'Brien, with a focus on his interpersonal difficulties and encouragement of him to continue to develop and consolidate personal strategies to avoid offending. He should have no access to children unless under the supervision of the Department. In that regard Dr Wojnarowska testified to the effect she was of the same view as Dr Febbo as to the discretion of the CCO to authorise conduct in the form of contact with children, which she indicated should not be such as to allow for a blanket authorisation but rather case by case authorisation.
153 Mr O'Brien should be required to disclose any intimate relationship to his CCO. He should be required to disclose any non-intimate relationships to that Officer if there were a potential for any such relationship to give Mr O'Brien access to children. He should be required to disclose his offending history to any intimate partner. There should be close monitoring of Mr O'Brien's Internet activity. The use of a monitoring device (GPS) was a matter that should be considered.
154 Dr Wojnarowska's testimony included that she was quite confident Mr O'Brien would be compliant with a supervision order having the features she commended. This was given his personality structure, including its lack of any anti-social element and its obsessional aspects.
155 I turn now to address all of the specific matters to which the DSO Act requires me to have regard before making my determination as to whether or not Mr O'Brien is a serious danger to the community within s 7.
Whether or not I find Mr O'Brien to be a 'serious danger to the community'
Introduction
156 I believe I must address this question in the detail below, notwithstanding that the answer to the question is not, as I have indicated, in contest before me. I so believe, both because I must make that determination having regard to the matters listed in DSO Act s 7(3) consistently with my responsibility under s 27(1) to provide detailed reasons for the determination, and because a number of matters to which I must have regard also go in my view to the choice I must make between the options in DSO Act s 17(1)(a) - (b).
157 I adopt the structure used by McKechnie J in Director of Public Prosecutions (WA) v Misko [2012] WASC 259. That structure follows DSO Act s 7(3).
(a) The psychiatric reports, including cooperation in the examinations
158 I previously reviewed the evidence of the psychiatrists. That review included taking account of their respective reports.
159 I note from those reports that there are indications Mr O'Brien cooperated in the psychiatrists' respective examinations.
160 I have noted the similarities and differences I have discerned in the reports of the two psychiatrists, exhibit 1.41 and exhibit 1.42.
161 Overall, allowing for all the similarities and differences I have referred to, I conclude that the psychiatric reports indicate that there is a high risk of serious sexual re-offending, in the sense of a significant likelihood of such offending if Mr O'Brien were not subject to a detention order or a supervision order.
(b) Any other medical, psychiatric, psychological or other assessments
162 There were a number of these in exhibit 1, in relation to his sentencings for his sexual offences, the sex offender treatment programmes he underwent in prison, assessments of him for parole and reports on his medical conditions or treatment of those conditions. See exhibits 1.16 - 1.19 and exhibits 1.25 - 1.38. I consider that either the two psychiatrists take sufficient account of them for my purposes, or those other assessments do not add significantly to their evidence.
(c) Propensity
163 I take the view that the legislature has used the word 'propensity' in its ordinary meaning in the context of the criminal law, as described in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 (Murray AJA), as follows:
In my view 'propensity' in this context means what it ordinarily means in the context of the criminal law. It means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder [178].
164 On the evidence before me, I consider Mr O'Brien has a propensity to commit serious sexual offences of the kind described as the most likely re-offending scenario by Dr Wojnarowska above which corresponded, as I have indicated, with the first kind of re-offending scenario described by Dr Febbo.
(d) Pattern
165 On that same evidence there is a pattern of offending behaviour by Mr O'Brien that may be described in terms of Mr O'Brien grooming pre-pubescent females in the context of ingratiating himself with their adult carers.
(e) and (f) Efforts to address the cause or causes of behaviour including participation in any rehabilitation programme and its effect
166 As to these matters, I note the evidence from Ms Ballantyne and the two psychiatrists I have reviewed as to Mr O'Brien's participation in the MSOTP and the ISOTP he underwent.
(g) Antecedents and criminal record
167 I have previously described these.
(h) Risk of a serious sexual offence
168 I consider that this 'risk' in DSO Act s 7(3)(h) refers to the likelihood of such an offence being committed, rather than the nature of the particular serious sexual offence of concern. I note the distinction between those two aspects of 'risk' in Italiano v The State of Western Australia [2009] WASCA 116 [4], [46] (Buss JA), referred to in The State of Western Australia v West [52](e).
169 I have previously described the respective assessments by the two psychiatrists of the likelihood of a serious sexual offence being committed by Mr O'Brien if he were not subject to a detention order or a supervision order.
(i) Need to protect the community from that risk
170 I note again the corresponding re-offending scenarios as described by Dr Wojnarowska and Dr Febbo and their further descriptions of the potential psychological harm from such re-offending. I consider, on that evidence, that there is a strong need to protect the community from such re-offending.
(j) Any other relevant matter
171 There was no other such matter.
Conclusion: whether I find Mr O'Brien a serious danger to the community
172 In accordance with DPP v GTR [34] (Steytler P & Buss JA), if I determine that Mr O'Brien is a serious danger to the community on my satisfaction that there is for him an unacceptable risk within DSO Act s 7, I must identify what it is that constitutes the risk and makes the risk unacceptable. Further, I must consider whether or not that matter has been proved to a high degree of probability by acceptable and cogent evidence.
173 I have so determined on such satisfaction so proved.
174 What constitutes the risk in this case, and makes that risk unacceptable, is the level of likelihood I have indicated, as to be drawn from the evidence of the two psychiatrists, of a serious sexual offence of the kind described by Dr Wojnarowska as the likeliest re-offending scenario, corresponding to the first of the three kinds of re-offending scenario described by Dr Febbo, with the potential psychological harm from such re-offending they describe as I have indicated.175 I consider that in accordance with DSO Act s 7(2), the DPP has discharged its onus of satisfying me in those terms by acceptable and cogent evidence and to a high degree of probability I so determine by reference to my review of the matters to which s 7(3) says I must have regard.
176 I turn now to the choice I must make on that determination.
The choice of order to make
Introduction
177 I believe I must address this choice in the detail below, notwithstanding that that choice is not, as I have indicated, in contest before me. I so believe because I must make that determination with the paramount consideration in DSO Act s 17(2) and consistently with my responsibility under s 27(1) to give detailed reasons for the choice.
The applicable law
178 As I previously indicated I drew from The State of Western Australia v West that I should choose the order that is least invasive or destructive of Mr O'Brien's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 [49] (Murray J), where a continuing detention order was made.
179 I should add from Latimer the following, which is accepted in Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 [15] (Hall J), where a supervision order was made:
The [DSO] Act prescribes no overall limit of time after which the prisoner must be released, and so it can be seen that a continuing detention order, when made, has the potential to last indefinitely, for a period well beyond the term of any sentence of imprisonment which might be imposed as punishment upon the commission of a serious sexual offence by the offender. It is having regard to that such matters that I express the opinion that the scheme of the Act requires the Court to do no more than is necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection for the community [24].
180 As I have indicated, the paramount consideration is the need to ensure the protection of the community (DSO Act s 17(2)).
181 Thus, as I have previously indicated, I drew from DPP v Williams [86] (Wheeler JA, Le Miere AJA agreeing), if I am satisfied that I have before me all relevant evidence concerning possible conditions which might be imposed on a supervision order, but am simply left in doubt as to whether such an order would adequately protect the community, then, having regard to DSO Act s 17(2), I must make a detention order.
182 I should immediately note that in this case I have no such doubt.
183 I turn then to making the choice.
Making the choice
184 I have noted in this regard the evidence of the two psychiatrists in relation to making a supervision order for Mr O'Brien.
185 I have further noted the conditions their reports refer to in the supervision orders they so commend.
186 Those conditions have similarities, in relation to him undergoing psychological treatment; to monitoring or prohibition of his access to the internet; to controlling his access to children, understood as I have indicated; and to monitoring of his movements with GPS technology.
187 Those conditions in Dr Wojnarowska's report also include ones in relation to him disclosing any intimate relationships to his CCO; to him disclosing any non-intimate relationships to his CCO if there were a potential for those relationships to give Mr O'Brien access to children; and to him disclosing his offending history to any intimate partner.
188 Those conditions in Dr Febbo's report also include regular medical review with consideration to be given to commencing a trial of anti-depressant medication; supervision and monitoring through the Department and the SOMS; and a check of the environment, which I understood to be the environment in which he would live.
189 Shortly before the hearing before me on 8 April 2015, senior counsel for the DPP produced a supervision order which it was proposed should be made in respect of Mr O'Brien. This, as I have indicated, became exhibit 2. The conditions in exhibit 2 appear to me to cover the ground of all of the conditions I have described thus far in this section of my reasons, together with a range of other matters. Exhibit 2 is virtually identical with the Proposed Supervision Order set out in exhibit 1.40, the Community Supervision Assessment report of Ms Hutchings, with two exceptions.
190 The exceptions are that in exhibit 2 there is no provision for attendance for and submission to urinalysis or other testing for prohibited drugs; and there is no provision prohibiting Mr O'Brien, while in a public place, being in possession of any children's toy, game or confectionery capable of constituting an enticement for children, unless such possession were for a legitimate purpose. Ms Hutchings had her attention drawn specifically to both omissions. She testified that both could be accounted for by reference to the lack of any known history of Mr O'Brien behaving in either of the ways against which the omitted provisions were intended to guard.
191 I note that the conditions in exhibit 2 include:
1. reporting and monitoring conditions, including electronic monitoring and the possibility of visits for monitoring purposes to the residence prescribed for Mr O'Brien;
2. compliance with directed psychological arrangements and with the requirements of programmes designed to address his offending behaviour or risk of serious sexual offending as directed;
3. exchange of information between persons or agencies involved in the implementation and supervision of the order, including confidential information;
4. restrictions on contact with victims of his sexual offending;
5. compliance with medication directions;
6. prevention of high risk situations, including:
(a) not to contact any child under the age of 16 years unless authorised or in compliance with certain restrictive conditions;
(b) to provide details of any contact with a child under the age of 16 years to the nominated agencies;
(c) to report immediately to the nominated agency the formation of any domestic, romantic, sexual or otherwise intimate relationship by Mr O'Brien with a person who has children under the age of 16 years in their care either full or part-time;
(d) not to conduct computer searches for or collect in either electronic or permanent form images of children, whether indecent or not, with the exception of images of Mr O'Brien's immediate family that are not indecent images;
(e) to make full disclosure regarding Mr O'Brien's past offending and the current order to anyone with whom he commenced a domestic, romantic, sexual or otherwise intimate relationship; and
(f) to have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children and to cease or cancel such memberships where directed to do so by one of the nominated agencies.
193 In that regard, I note again the evidence of both psychiatrists that they were confident Mr O'Brien would likely comply with the conditions they commended in a supervision order for him.
194 I also note, as to the resources required to be provided under such a supervision order, the testimony of Ms Ballantyne that she had no concern as to the availability of resources required for that purpose from the Department.
195 I have concluded that, consistently with the paramount consideration of the protection of the community, I should make a supervision order in the terms of exhibit 2. However, this is with an amendment as proposed by counsel for Mr O'Brien, with which counsel for the DPP indicated he had no difficulty. The amendment was, as I understood it, to respond to the evidence of the two psychiatrists as to the proper limitation of the discretion of a CCO to authorise contact by Mr O'Brien with children. The amendment was to substitute the words 'the instance of each contact' for the word 'contact' in exhibit 2 [40]a). See now Appendix 1 [40]a) so providing. I set out in Appendix 1 the terms of the supervision order I would make.
Conclusion on choice and orders
196 I am satisfied that Mr O'Brien is a serious danger to the community within the meaning of DSO Act s 7(1), having been so satisfied by the DPP by evidence to the standard as described in s 7(2).
197 I am also satisfied that, in accordance with the paramount consideration to ensure the adequate protection of the community, a supervision order should be the choice of order under DSO Act s 17(1).
198 Accordingly, I would make a supervision order for Mr O'Brien in the terms of the order in Appendix 1.
Appendix 1
IN THE SUPREME COURT OF WESTERN AUSTRALIA
DSO 1 of 2015
IN THE MATTER of the Dangerous Sexual Offenders Act 2006
DIRECTOR OF PUBLIC PROSECUTIONS
FOR WESTERN AUSTRALIA Applicant
-and-
ROSS FINCH O'BRIEN Respondent
___________________________________________________________________________
SUPERVISION ORDER MADE BY
THE HON JUSTICE SIMMONDS ON 9 APRIL 2015
___________________________________________________________________________
The Court having found pursuant to section 17 and section 7 of the Dangerous Sexual Offenders Act 2006 that the Respondent is a serious danger to the community, the Court orders that the Respondent be the subject of a supervision order pursuant to section 17(1)(b) of the Dangerous Sexual Offenders Act 2006, for a period of 5 years from the date of this order, on the following conditions:
THE RESPONDENT must:
STANDARD CONDITIONS REQUIRED BY THE ACT
1. Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of the person's current name and address;
2. Report to and receive visits from, a Community Corrections Officer as directed by the court;
3. Notify a Community Corrections Officer of every change of the person's name, place of residence, or place of employment at least 2 days before the change happens;
4. Be under the supervision of a Community Corrections Officer, which includes compliance with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B);
5. Not leave, or stay out of the State of Western Australia without the permission of a Community Corrections Officer;
6. Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order; and
7. Be subject to electronic monitoring pursuant to section 19A Dangerous Sexual Offenders Act 2006 (WA).
ADDITIONAL CONDITIONS
8. Take up residence at [suppressed], and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to him;
9. Not leave or remain out of the State of Western Australia without the permission of a Manager of the Department of Corrective Services and, if so permitted, abide by all conditions of such permission whilst absent from the State;
Reporting to the CCO and supervision by the CCO
10. Report to a CCO at Central West Metropolitan Adult Community Corrections, Level 2 Moore Street, East Perth, WA, within normal business hours on the day of release from custody under this order, and thereupon advise the CCO of his current name and address;
11. Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO;
12. Report to, and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments pertaining to him;
13. Notify the CCO of any change of his name at least 2 working days before the change is due to happen;
14. Not commence or change voluntary or paid employment without the prior approval of the CCO;
Attendance at programs or treatment
15. Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;
16. Comply with the requirements of all programs designed to address his offending behaviour and/or risk of serious sexual re-offending, as directed by a CCO;
Reporting to WA Police
17. Report to the Officer-in-Charge of the Sex offender Management Squad located at 297 Hay Street, East Perth, WA, within 48 hours of release, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate; (OR)
18. Comply with all obligations imposed on him pursuant to the Community Protection (Offender Reporting) Act 2004;
19. If requested, permit Police Officers to enter and search his residence for the purpose of monitoring his compliance with the obligations under this order;
20. When requested, advise Police of the names of all of his internet service providers, all mobile or landline telephone services used by him and all internet user names or identities used by him;
Disclosure/Exchange of Information
21. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
22. Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history;
Restrictions on contact with Victims
23. Have no contact, directly or indirectly, with any of the victims of his sexual offending unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Corrective Services;
24. Unless contact with victims is permitted pursuant to the previous condition, the respondent must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert his gaze from such victim at all times;
25. Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;
Criminal conduct
26. Not commit any sexual offence, as defined in the Evidence Act 1906 section 36A;
27. Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;
28. Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA);
29. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
30. Not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis;
Medications/Mental Health
31. Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the CCO;
32. Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to his level of risk of re-offending and compliance with treatment or programs to the Department of Corrective Services;
33. Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor his compliance with that treatment as directed by the CCO;
Prevention of high-risk situations
34. Not associate with any person known by the respondent to have committed a sexual offence, unless such association is authorised in advance by the CCO;
35. Not possess any pornographic materials in any format, and not search for pornographic images during access to any computer or other device capable of internet access;
36. Not access any computer or other device capable of internet access unless such access is supervised at all times by a person approved in advance by a CCO;
37. With respect to any computer or device in the respondent's possession that is connected to the internet or has been used by him to access the internet, not delete or otherwise remove or disguise any search histories or logs capable of identifying the respondent's activities on that computer, without the approval in advance by a CCO or WA Police;
38. Permit a CCO or WA Police to access any computer or any device capable of storing digital date, for the purpose of ascertaining the respondent's computer activities, and to provide the CCO or Police Officer, upon request, with the password to enable them to gain access;
39. Not conduct computer searches for, or collect in electronic or permanent form, images of children, whether indecent or not, with the exception of images of his immediate family which are not indecent images.
40. Have no contact with any child under the age of 16 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
- a) the instance of each contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO; or
b) the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction and another adult is present;
- ('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication);
42. Provide details of any contact with a child under the age of 16 years both to the respondent's CCO and to the Police on the next occasion you report to that person or agency;
43. Report immediately to his CCO the formation of any domestic, romantic, sexual or otherwise intimate relationship by the respondent with a person who has children under the age of 16 years in their care, either full time or part time;
44. Make full disclosure regarding his past offending and the current order to anyone with whom the respondent commences a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
45. Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
THE HON JUSTICE SIMMONDS
I have received a copy of this order. I have had explained to me and understand the effect of this Order and what may happen if I contravene it.
Signed by the Respondent _____________________________
- Ross Finch O'Brien
In the presence of: _____________________________
Name and address: _____________________________
_____________________________
Date: _____________________________
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