Director of Public Prosecutions (WA) v Pindan
[2013] WASC 393
•28 OCTOBER 2013
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- PINDAN [2013] WASC 393
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 393 | |
| Case No: | DSO:2/2013 | 1 AUGUST & 9 OCTOBER 2013 | |
| Coram: | McKECHNIE J | 28/10/13 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Finding that the respondent is a serious danger Continuing detention order made | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) NIGEL PINDAN |
Catchwords: | Dangerous sexual offender Criteria for assessment Whether order should be made Need for adjournment Incomplete information to decide whether detention or supervision should be ordered |
Legislation: | Dangerous Sexual Offenders Act 2007 (WA) |
Case References: | Attorney General (Qld) v Beattie [2007] QCA 96 Attorney General (Qld) v Francis [2006] QCA 324; (2007) 1 Qd R 396 DPP (WA) v Alvisse [No 6] [2013] WASC 154 DPP (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
NIGEL PINDAN
Respondent
Catchwords:
Dangerous sexual offender - Criteria for assessment - Whether order should be made - Need for adjournment - Incomplete information to decide whether detention or supervision should be ordered
Legislation:
Dangerous Sexual Offenders Act 2007 (WA)
Result:
Finding that the respondent is a serious danger
Continuing detention order made
Category: B
Representation:
Counsel:
Applicant : Mr M T Trowell QC
Respondent : Ms M R Barone
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Barone Criminal Lawyers Pty Ltd
Case(s) referred to in judgment(s):
Attorney General (Qld) v Beattie [2007] QCA 96
Attorney General (Qld) v Francis [2006] QCA 324; (2007) 1 Qd R 396
DPP (WA) v Alvisse [No 6] [2013] WASC 154
DPP (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
1 McKECHNIE J: The DPP applies for orders that the respondent be declared a dangerous sexual offender and detained in custody and/or released on supervision.
How this matter comes to court
2 The respondent was serving a sentence of 6 years' imprisonment for sexual assault and due for release on 6 July 2013.
3 On 20 May 2013, on application by the DPP. I made orders that the application for a Division 2 order be heard on 1 and 2 August 2013. I appointed Dr Sam Febbo and Dr Gosia Wojnarowska as psychiatrists to prepare reports under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) s 37.
4 I also ordered that the respondent be detained in custody until the div 2 order was heard and determined.
The respondent's age and background
5 The respondent's date of birth was unclear. It is variously recorded as 21 December 1976 and 21 December 1977. Following further enquiries, the DPP tendered a birth certificate which established that the respondent was born on 31 December 1978. As many report writers used the earlier dates, assumptions made about the age of the respondent at the times of his offending must be revised. He commenced offending at a younger age.
6 The respondent was born in Derby. He has never known his biological father. He has, however, been raised by his mother and step-father who have been supportive and positive influences on him. The respondent's mother is a traditional Aboriginal woman and the family moved between Looma and Nundugan Communities as well as Broome, although the respondent was mainly brought up in Broome. This created confusion within him regarding the Law. He refused to go through the traditional Law.
7 In interviews at various times the respondent described his childhood as happy. He was well looked after and always encouraged to go to either school or work. At school he did quite well.
8 The overview is incomplete without reference to the respondent's criminal history, the result of which is that he has spent many years of his adult life in prison. The respondent has a particular predilection. He has sex with sleeping women. On occasions this has occurred without their consent so that he has a number of convictions for sexual assault.
Is the respondent a serious danger to the community?
9 Under the DSO Act s 7 the court must be satisfied by acceptable and cogent evidence to a high degree of probability that there is an unacceptable risk that, if the respondent were not subject to a continuing detention order or supervision order, he would commit a serious sexual offence.
10 In deciding whether the respondent is a serious danger to the community I have regard to the statutory criteria:
Section 7(3)(a) - Report of psychiatrists
Dr Wojnarowska
11 Dr Wojnarowska's diagnosis is not materially different from that made in 2007. She explained the diagnosis of paraphilia not otherwise specified as follows:
DIAGNOSTIC FORMULATION
Mr Pindan presents with a long history of sexual offending. Although there are no major traumas identified in his early development, there is a history suggestive of social deficit which was a likely contributor to his first sexual offence. Unfortunately, this developed further into deviant interest in sleeping women and deviant sexual arousal This has been confirmed by both Mr Pindan and his history of sexual offending, therefore the diagnosis of paraphilia not otherwise specified has been made. In relation to the diagnosis of antisocial personality disorder, there was strong evidence of the presence of conduct disorder in childhood which continued throughout adulthood in the form of criminal activity, drug taking and impulsivity. The diagnosis of alcohol and cannabis dependence is based on Mr Pindan's self report and information produced from the collateral history.
Mr Pindan participated in two sex offender programs and the reports from both programs are positive. Of a concern is, that despite the successful completion of the first program, he re-offended in a sexual manner. It is also of a concern that his current understanding of his cycle of offending is superficial and he does not demonstrate insight or strategies to decrease his risk.
12 In assessing the respondent's risk, Dr Wojnarowska used a Structured Clinical Guide with two Actuarial Instruments, Static-99 and the Hare Psychopathy Check-List - Revised (PCL-R):
Structural Clinical Guides in contrast use both static and dynamic risk factors. They require clinicians to consider different factors which impact upon the assessment of risk.
13 Dr Wojnarowska chose to use the Risk Sexual Violence Protocol (RSVP). The respondent is in the high risk category (25% risk of offending within the next five years on Static-99).
14 His score on the Psychopathy Scale assessment under PCL-R does not fulfil the criteria for being perceived as a psychopath. The diagnosis of anti-social personality disorder does not bring any more information in relation to the risk assessment.
15 Her opinion of risk:
Mr Pindan's risk of re-offending is high as consistently assessed by both actuarial and clinical tools, including the cultural-sensitive one. The main areas of concern include his continuous treatment needs which include the presence of deviant sexual interest and his poorly addressed substance use. In my opinion, Mr Pindan is likely to continue to use substances as he failed to demonstrate development in his coping skills and his insight into the cycle of his offending remains limited. Therefore, in my opinion, it would be difficult to manage Mr Pindan safely in the community.
16 Dr Wojnarowska explained why she thinks it would be difficult to manage the respondent in the community: he is likely to be impeded by his propensity for a nomadic lifestyle, his difficulty in committing himself to a relationship and his strong anti-social and anti-authority stance.
17 The respondent does not perceive a need for further psychological counselling or treatment. He was confident that he would not reoffend, 'I won't drink that's all'.
Dr Febbo
18 Dr Febbo's report is dated 16 July 2013. Dr Febbo's diagnosis is:
Axis One (Clinical Disorders)
• History of alcohol abuse/dependence and cannabis abuse/dependence.
• The presence of a paraphilia (paraphilia not otherwise specified) has not been excluded.
Axis Two (Personal disorders and mental retardation)
• Possible mild treatment retardation (in my view this diagnosis has not been excluded).
• Antisocial Personality traits.
• Borderline and avoidant personality traits.
Axis Three (Physical conditions)
• Diabetes.
Axis Four (Psychosocial and environmental problems)
• Relocation and accommodation issues.
Likelihood of significant stress related to release and relocation into a community setting.
Axis Five (Global Assessment of Functioning)
Is in the region of 70 with 'some mild symptoms'.
19 The diagnosis of Dr Wojnarowska is not in substantial conflict with that of Dr Febbo. There is a difference as to the presence of paraphilia. Dr Febbo's diagnosis is less definite. However, he did not have the disclosure by the respondent, which Dr Wojnarowska was given during interview, about the respondent's interest in sexual relations with sleeping women.
20 Like Dr Wojnarowska, Dr Febbo used both actuarial instruments and Structured Professional Judgement, in particular Static-99 and the PCL-R. He also used the HCR-20 and RSVP noting that the risk assessment instruments, though useful, have to be used with caution in an Aboriginal man of Mr Pindan's background.
21 Dr Febbo's score of the respondent put him in the high risk category as a 39% chance of sexual reoffending within a five year period. Dr Febbo's calculation under PCL-R was similar to that of Dr Wojnarowska. Dr Febbo scored him at 13.7 points. Under HCR-20, Dr Febbo concluded that the respondent has a significant risk of future violence. After considering the results of RSVP, Dr Febbo noted risk scenarios:
In Mr Pindan's case, if he were to reoffend, a future offending scenario would be that he would again return to drinking excessively, possibly at a time when he has moved from a community into town. Alternatively, if he were to be placed in a town, then he would be breaching any order that required him not to drink. After consuming considerable quantities of alcohol, Mr Pindan would then separate himself from the group with which he was drinking and returning wondering aimlessly on the streets. He would then, most likely, if he were to reoffend, make an attempt to enter a dwelling, find a woman asleep and commence to have sexual intercourse with her. As in the past the woman may well wake which can result in either Mr Pindan leaving or alternatively forcing himself upon her and not allowing her to leave. In this second possible scenario there is a potential for significant physical harm in addition to psychological harm.
Whilst appropriate monitoring and supervision and a requirement that he abstain from alcohol and substance abuse would decrease the likelihood of this event taking place, the fact that Mr Pindan's drinking is intermittent it may be difficult to predict and control for this.
22 Dr Febbo concludes that the respondent would be at high risk of committing a further sexual offence if he is not the subject of a detention or supervision order and that alcohol intoxication is a particularly significant factor in the offending. In relation to management:
1. In my opinion individual psychology input is required in order to further address the sexual offending. Ideally it would be useful to commence this input in a custodial setting and for it to continue following release. I understand that there may be significant practical problems with this plan.
In the context of this psychotherapeutic relationship the possible presence of sexual deviance can be explored. In addition, considering the limited information that Mr Pindan provided me in relation to the factors that are behind the sexual offending, it would be useful to revisit these issues.
2. It would be useful to have some clarification in relation to the presence or absence of any cognitive impairment. In my opinion neuropsychological testing would be useful although I understand that this would be a difficult process considering the presence of significant culture issues.
3. Depending on where Mr Pindan is released it would be beneficial for there to be additional input in relation to the alcohol abuse and it would be appropriate to consider both continuing counselling that could be part of the psychological input and a residential rehabilitation program.
4. It would be most appropriate if Mr Pindan were to be placed in a dry community. I understand that Luma is a particularly functional dry Aboriginal community. Unfortunately Mr Pindan is at the very least ambivalent about being placed in this community. It is also unclear as to whether the community is prepared to have Mr Pindan back.
5. In the community, Mr Pindan will require regular monitoring and supervision through the Department of Corrective Services and police resources. This level of monitoring and supervision needs to be relatively intense considering Mr Pindan has reoffended in the context of supervision in the past.
6. Other practical measures should be put in place and these would include a curfew and limiting Mr Pindan's potential to wander within the community.
23 During cross-examination each psychiatrist commented on the respondent's nine years of non-offending behaviour during which time he continued to have alcohol dependence. There were many occasions where he was intoxicated, not only in remote communities but also in the urban community of Broome. Yet he did not offend during that time. He told Dr Wojnarowska, though not Dr Febbo, that he had consensual sexual relations about 30 times during that period. This is clearly a relevant factor as each psychiatrist acknowledged. Nevertheless, it did not affect their opinion as to the high risk which the respondent poses of committing a serious sexual offence.
24 Cross-examination, particularly of Dr Febbo, also explored the fact that the first two convictions did not involve violence beyond, of course, the nature of the sexual assault itself. The third conviction did involve violence. It was suggested, fairly, that the third conviction involving violence may not have been an escalation of offending behaviour, but was explained as the respondent had explained it to Dr Febbo: 'it didn't work out, I thought it was going to be quick'. I accept that, if it was necessary for me to be convinced, I could not be satisfied to the required standard that the respondent would offend again in a similarly violent manner in the future because it is at least a reasonable conclusion that the violence was opportunistic on that occasion and not part of his usual method of offending. There was no evidence from either Dr Wojnarowska or Dr Febbo that the respondent has fantasies of rough non-consensual sex.
25 However, the issue of violence in the third conviction is of limited relevance. The DSO Act is concerned with predicting further sexual offending and is not limited to violent sexual offending.
Section 7(3)(b) - Any other medical, psychiatric, psychological or other assessment relating to the person
26 There have been a number of assessments over the years commencing with the report of 11 January 1994. That report, when the respondent was still a child, is now of marginal use. However, both that report and a subsequent report dated 16 February 1995, by Ms M Drage, Senior Juvenile Justice Officer, Broome Office, highlighted the respondent's alcohol and cannabis use as factors in his offending.
27 On 17 July 1997 P Lowe, a clinical psychologist, noted:
[Mr] Pindan is of normal intelligence, but he has few social graces, and his demeanour is not that of a young man with a good opinion of himself ...
Mr Pindan spends most of his time at Looma or working at his parent's outstation. He drinks heavily when he goes into Derby, usually at week-ends. Reports on the Community Corrections file suggest that he also smokes marijuana heavily. Mr Pindan claims he only uses marijuana when it is offered to him; he does not go out of his way to acquire it.
28 The fact that he had not been through Law was an issue. The psychologist considered that he had a confused identity:
Born to a Looma woman, brought up in Broome by his mother and a stepfather of mixed descent, and now living back amongst Looma people. ... He is thus a misfit in a community in which ritual induction into adulthood is still both the norm and a prerequisite for an approved sexual life.
29 The psychologist continued:
Mr Pindan expressed a somewhat negative attitude towards marriage in general as restrictive, and I suspect a certain antipathy for, or sense of alienation from, the opposite sex. I was not able to explore this possibility in depth, but if my hunch is correct it would be a significant factor in accounting for Mr Pindan's sexual difficulties and offending behaviour.
30 The psychologist concluded:
[Mr] Pindan's offending behaviour, though it seems opportunistic rather than premeditated, is evidence of underlying adjustment problems. He does not seem to have advanced socially over the past two years, and some intervention is required to assist him in his sexual adjustment. His abuse of substances, particularly alcohol, is a contributory factor, but he shows little motivation to change his pattern of consumption except by prevention: that is, by remaining out of town ... To do so might prevent reoffending in the short term, but would do nothing to assist his social and sexual development.
Psychiatric report for sentencing on 5 November 2007
31 Dr Wojnarowska's report of 2 November 2007 was referred to in the sentencing proceedings on 5 November 2007. Dr Wojnarowska's diagnosis:
Axis 1 Clinical Disorders
Paraphillac Disorder
Alcohol Dependence
Alcohol Intoxication (while committing the index offence)
Axis II Personality Disorders and Mental Retardation
Antisocial Personality Disorder
Axis III General Medical Conditions
Diabetes type II
Axis IV Psychosocial and Environmental Problems
Social isolation
Axis V Global Assessment Functioning
The accused would score 70 out of 100 on his Global Assessment of Functioning
OPINION AND RECOMMENDATIONS
The accused does not present with a major psychiatric illness. His sexual offending developed in the context of him having an entrenched pattern of deviant ways of gratifying his sexual urges and was facilitated by disinhibition caused by alcohol. Additionally the accused demonstrates an antisocial way of living as evidenced by his previous offending and his impulsivity. Of concern has been his limited empathy for the victims.
The results of the risk assessment using Static-99 place the accused in the high category which means that he has a 25% risk of offending within the next five years. Probability estimates indicate individuals with this risk category have 57% chance of recidivism in ten years and 62% in fifteen years.
Although most members of the original sample from which recidivism estimates were obtained from Static-99 were Caucasians, race has not been found to be a significant factor of sexual offence recidivism. In Canada there is some evidence that Static-99 is as reliable for Aboriginal sexual offenders as it is for Non-Indigenous (Nichalaichuk 2001).
This risk assessment albeit limited clearly indicates that the accused poses a high risk of reoffending and has a multitude of unaddressed treatment needs. Further assessments specifically in relation to his personality structure are required. As a sexual offender he will be assessed for suitability to undergo a Sex Offender Treatment Program. He would also benefit from drug and alcohol counselling.
32 The Community Corrections Officer did not recommend release on parole:
The present offence is Pindan's second conviction for a sex offence. Of concern is that the circumstances of both offences are similar in nature and although Pindan claims the offences were opportunistic, it appears that there was some premeditation, ie: walking around late at night on his own under the pretext of looking for friends to drink alcohol with. He described his offence as having 'sneaky' sex and stated 'some times I get a real feeling for sex'. Pindan is considered to be at high risk of reoffending. He was frank during interview and by his own admission, is likely to reoffend. Furthermore, despite attending an alcohol counselling programme, he advised that he will find it difficult not to consume alcohol.
As mentioned previously, Pindan still appears to have treatment needs. It may be beneficial for a further investigation/assessment by the Sex Offender Treatment Unit to identify specific deviancy, if any, or reinforcer(s) of his offending behaviour. Completion of the SOTP and receipt of the completion report may clarify this issue.
RECOMMENDATION
Pindan is a high risk offender and release on parole is not recommended at this stage. Recommend review upon receipt of the Sex Offender Treatment Programme completion report.
33 Acting on Dr Febbo's advice to seek clarification as to whether the respondent has a cognitive impairment, Dr Angela Cooney a senior forensic psychologist reported that:
In summary, based on an administration of a culturally sensitive test of non verbal reasoning, Mr Pindan scored in the below average range of intellectual functioning. Mr Pindan's overall score placed him on the 10th percentile, indicating that he performed at a level lower than what we would expect of 90% of same-aged peers. This result is noteworthy in that, while it demonstrates that Mr Pindan is functioning at a level lower than average, his performance is not sufficiently low to qualify him for a diagnosis of an intellectual disability nor is it sufficient to consider him unable to understand the Court process or to engage in treatment. Based on these findings, it is unlikely that Mr Pindan's cognitive functioning would prevent him from meaningful engaging in mainstream group or individual psychological treatment.
Section 7(3)(c) - A propensity to commit serious sexual offences
34 I am satisfied that the respondent has a propensity to commit further offences. I accept that he has a paraphilia which is an interest to the point of deviance from the normal in sexual relations with sleeping women. Such an interest is not of course illegal and can be managed with a cooperative consensual partner. In the nine years during which the respondent was offence free he appears to have managed in this way. However, the interest remains and, as has been shown in his past offending, he may be prepared to satisfy this interest without obtaining consent.
Section 7(3)(d) - Pattern of offending behaviour
35 Clearly there is a pattern of offending behaviour. The respondent seeks out sleeping women for sex.
Section 7(3)(e) - Any efforts made to address the cause or causes of the offending behaviour
36 The respondent has made efforts at rehabilitation as earlier detailed by completing a number of courses in prison. The overall impression gained by those who ran the programmes in which he participated was that the respondent was a genuine participant who has developed some insight into his condition and the causes of his offending. Inextricably linked with his offending is his intoxication caused by his alcohol dependence.
Section 7(3)(f) - Participation in rehabilitation programmes
37 While in prison the respondent completed an Indigenous Men Managing Anger and Substance Use Programme. He also completed the Sex Offender (Indigenous) Medium Programme.
Treatment completion report on 26 February 2010 for Indigenous Men Managing Anger and Substance Abuse
38 The report noted in summary:
Nigel Pindan has completed the IMMASU program at Greenough Regional Prison. Mr Pindan attended every course session, and was able to display an excellent understanding of the issues discussed.
Mr Pindan indicated a desire to refrain from abusing alcohol after he is released from prison to ensure security of his people and to restore harmony within his family.
39 Following the conclusion of the Greenough Regional Prison Pre-release Sex Offender Treatment Programme on 16 July 1998, the report on his participation concluded:
Mr Pindan has voluntarily adopted a commitment to change his problematic and deviant sexual behaviours. He has indicated a desire to build a more balanced lifestyle that is considerably more resistant to psychological stressors and maladaptive copying behaviours. Although a quiet Group member, Mr Pindan has gained an insight into his offending behaviours. He has on occasion requested further examination of his past emotional responses in an effort to understand his maladaptive coping behaviours. He is now aware of his own individual high-risk situations.
Mr Pindan accepts full responsibility for his offences and does not blame alcohol for his behaviours. Although he does acknowledge that he has alcohol and cannabis use problems. He claims that he experiences remorse and has demonstrated victim empathy at the cognitive level in acknowledging the possible long term consequences of his behaviours impacting upon his victims futures.
Given Mr Pindan's youth and his difficulty in clearly articulating his view point, together with his obvious shyness, his approach to addressing his offending behaviours is commendable. However, Mr Pindan is a young man of 21 years with apparently poor social skills. He also has a substance use problem that manifests when he goes to town. He has two sexual assault convictions with the percussive events presenting as remarkably similar. The risk inherent in the combination of these factors is assessed as being medium low for reoffending in a like manner.
Indigenous Medium Sex Offender Programme
40 This course was completed on 24 August 2011. The summary recorded:
Treatment gains included insight into background and immediate factors in his sexual offending behaviour and the identification of risks and appropriate risk management strategies. Outstanding treatment needs relate to Mr Pindan's use of violence in his current sexual offending behaviour and substance use. He remains at high risk due to static factors and ongoing substance use issues.
41 Risk was assessed using STATIC 99, on which I place little weight, and the three predictor model. It was noted that the respondent's release plans were unfeasible and he had unrealistic long term goals. Because of his extensive history of substance abuse he has poor coping skills. His participation in the programme was considered satisfactory as he completed all aspects of the programme. He remains at high risk due to static factors and ongoing substance abuse issues.
42 The general tenor of both Dr Wojnarowska's and Dr Febbo's reports, coupled with the report on completion, is that the Sex Offender Treatment Programme has had some positive effect and has given the respondent some, if incomplete, insight into his offending.
Section 7(3)(g) - Criminal history
43 The respondent has accumulated many convictions over the years. The first conviction of note are on 26 and 27 January 1994 in the Broome Children's Court. On 2 December 1993 the respondent, who was then aged nearly 15, entered a house where a 23-year-old woman was sleeping in her bedroom. He grabbed her by the wrists, letting go when she awoke. She screamed and scratched his arms. A couple of nights later, on 5 December 1993, he broke into a house where a 34-year-old woman was sleeping in her bedroom. He started to have sex with her. She awoke. He grabbed her by the wrists and when she screamed and scratched his arms, he left the house.
44 On 23 December 1993 the respondent entered a house where a 36-year-old woman was sleeping on the floor. He turned off all the lights and the television. Whether he also grabbed this victim by the wrists is immaterial to the resolution of the issue. When she awoke he punched her to the forehead and then left.
45 The respondent was convicted of these offences on 26/27 January 1994 and received a 12 month conditional release order. These offences are the first signs of a pattern which was established whereby the respondent would enter homes where women were sleeping and assault them.
46 On 27 February 1995, the respondent was convicted in the Broome Court of Petty Sessions of one count of burglary with intent, and one count of being on premises without lawful excuse. The offences were committed on 19 January 1995 at about 5.15 am. He entered one house by climbing through a bedroom window and disturbed the female occupant in the lounge room. He then left, crossed the street and entered another house where again the female occupant of the house awoke. He decamped the scene via the front door.
47 On 24 May 1997, a young woman who was very drunk, went back to a reserve. Lying on a mattress she removed her top so she was naked from the waist up. She and her boyfriend went to sleep. She awoke when she found that there was a man on top of her having sex with her. Originally she thought it was her boyfriend. When she realised it was not she pushed the respondent away. He ran away and was chased by the victim and her boyfriend. The respondent was later apprehended by police.
48 On 5 August 1997 having pleaded guilty, the respondent was sentenced to a term of 3 years' imprisonment with parole eligibility. During his period in prison he took part in the Greenough Prison Pre-release Sex Offender Treatment Programme. He was released to parole on 3 August 1998.
49 On 30 October 1998 the offender was convicted of being on premises without lawful excuse. He was fined $2000. Parole nevertheless continued.
50 On 30 September 1999 there was a further alleged incident for which the respondent was charged and acquitted. I take no account of it.
51 On 6 and 7 July 2007 the respondent entered a house at night time and sexually assaulted a sleeping female occupant in the lounge room, again in the bathroom and then again in the lounge room. These offences were committed with considerable violence. On 5 November 2007 the respondent was sentenced to a total term of imprisonment of 6 years with parole from 7 July 2007. The term of imprisonment has been completed but the respondent remains in custody pending resolution of this application pursuant to an interim detention order.
Conclusion: The respondent is a serious danger
52 Ms Barone submits that when determining whether the risk is unacceptable the court is required to have regard to:
(a) what type of serious sexual offence the respondent may commit; and
(b) the factual gravity of the serious sexual offence the respondent may commit.
53 It is true that in DPP (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 Wheeler JA said:
A 'serious sexual offence' is itself a defined term. It has the meaning given to that term in the Evidence Act 1906 (WA) s 106A. In broad terms, that is a reference to a variety of sexual offences which are punishable by a term of 7 years' imprisonment or more. By and large, the offences are offences of a kind that would be regarded as 'serious' both in lay terms and as a matter of statutory definition. It is possible, however, to imagine offences which fall within the statutory definition, but which not all members of the community would necessarily regard as being serious sexual offences in ordinary parlance. For example, a youth of 17 who engages in any sexual conduct with his 15-year-old girlfriend, which may fall well short of sexual intercourse, with her consent or even at her request, would, assuming he knows her age, be committing a serious sexual offence as defined (eg Criminal Code (WA) s 321(2), (4)). Of course, one would not expect such an offence to attract a term of imprisonment, so as to trigger the operation of s 8 of the Act. The example merely illustrates the point that not all 'serious' sexual offences will be 'serious' in the ordinary meaning of the term. Leaving aside the anomalous or unusual case however, by and large a 'serious sexual offence' is serious both as a matter of statutory definition and in the sense of being an offence which ordinary members of the community would regard as amongst the most grave types of offending.
...
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 likely 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 [61], [63].
54 In Attorney General (Qld) v Beattie [2007] QCA 96, the Court of Appeal noted at [19] (and I summarise) that whether or not a moderate risk is unacceptable must be gauged by taking into account the nature of the risk and the consequences of the risk materialising. The focus of consideration must therefore, be upon the likely effect of a supervision order in terms of reducing the opportunities for the appellant to engage in the particular sort of sexual offending if there has been a pattern of such offending.
55 Having regard to the aims and objects of the DSO Act, and freed from authority, I would respectfully doubt that it is necessary to examine the likelihood of offending beyond what is statutorily defined as a 'serious sexual offence' under the Evidence Act 1906 (WA) s 106A.
56 However, it is unnecessary for me to further develop this proposition because, on any view, I am satisfied that the type of offending which the respondent would likely engage in is the sexual assault of a sleeping adult woman. While Ms Barone argued, and I accept, that the violence accompanying the third offence does not necessarily mean there will be an escalation or a repeat of violence in the future that, with respect, minimises the violence inherent in any sexual penetration without consent. Whether in the ordinary meaning of the term or the statutory definition, the likely offences that the respondent would commit, unless an order is made, are, in my view, serious offences.
57 The evidence overwhelmingly establishes the respondent poses a serious danger of sexually assaulting sleeping women unless a detention or supervision order is made. I am satisfied to the required standard that he is a serious danger to the community.
58 The cumulative effect of all the matters set out in relation to the statutory criteria set out in the DSO Act s 7 makes a finding of a serious danger to the community inevitable.
The need for a further adjournment
59 After the lunch adjournment on the first day of hearing on 1 August 2013, Mr Trowell QC, who appeared for the applicant, advised me that he had discussed the matter over lunch with representatives of the Department of Corrective Services. They had told him that the policy was not to supply any psychological services until a judge had made a dangerous sexual offender declaration. This issue has arisen a number of times in the past and before other judges as well. It is always an unsatisfactory response. The decision whether a dangerous sexual offender declaration should be made cannot be arbitrarily separated from the decision whether, if such a declaration is made, the offender should be detained in custody for control, care, or treatment or released on supervision and what that treatment might be.
60 This is explicit in the DSO Act. The definition of serious danger to the community is 'that there is an unacceptable risk that, if a person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence': s 7(1).
61 A judge who finds that a person is a serious danger to the community must make either an order:
17(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.
Section 13(5)(a), in speaking of a continuing detention order as an order 'for control, care or treatment', identifies the three purposes for which an order may be made: control of the dangerous prisoner, care for the dangerous prisoner, or treatment of the dangerous prisoner. These purposes are identified as alternatives. The phrase 'control, care or treatment' must, as a matter of ordinary language, be read disjunctively.
This disjunctive reading suggests that there may be cases where the basis for an order may be, either:
• the control of an incorrigible offender, or
• the care of an offender whose propensities endanger the offender as well as others, or
• the treatment of an offender with a view to rehabilitation.
It will often be the case that more than one of these considerations will inform the making of an order [28] - [29].
63 The court must give detailed reasons at the time a detention or supervision order is made: DSO Act s 27.
64 Therefore any DCS 'policy' of not providing psychological or other services until a dangerous sexual offender declaration is made is, at best, misconceived.
65 Unless the court is provided with all relevant information, the purposes of the DSO Act will be frustrated.
66 Such information will necessarily include what control, care, or treatment, will be provided to a respondent if he is detained in custody as that is integral to the decision to detain. It will offer an opinion whether the respondent is likely to respond to treatment and the kind of treatment most likely to meet the aims of the DSO Act.
67 Information is also necessary as to any other terms that may be included into a supervision order for the rehabilitation or care or treatment of the person subject to the order: s 18(2).
68 Therefore under the DSO Act it is necessary for the court to be supplied with all relevant information addressing both questions. This is in no way a criticism of the DPP or DPP's counsel, but is directly addressed to the Department of Corrective Services who, in practical terms, have the responsibility for such matters.
69 Regrettably, once again, following the course outlined by the Court of Appeal in DPP (WA) v Williams, I adjourned the hearing until 9 October 2013 for further information to be provided as to whether the respondent was assessed as willing and able and appropriate for counselling and whether there was space available in a suitable residential alcohol programme.
70 An adjournment will always have a negative effect on a respondent who is being detained under an interim detention order, after completion of sentence, pending a decision. If a decision is made that he is a dangerous sexual offender and that he should be detained in custody, a review of that decision cannot be made for 12 months, leading inevitably to a respondent spending longer in custody before review than if the matter was dealt with at the time set aside for the original hearing.
71 Ms Barone advised me that she had explained this to the respondent who was prepared to accept that possibility. Nevertheless, it remains a prejudice to the respondent largely due to the application of a policy which is contrary to the principles of the DSO Act.
Detention or supervision
72 Ms Barone submits that if I find the respondent is a dangerous sexual offender, the community can be adequately protected by a supervision order.
73 In considering whether I should make a detention order or a supervision order, following a finding that the respondent is a dangerous sexual offender, I have regard to his previous response to community supervision:
On 3 August 1998, Mr Pindan was released to parole for the offence of Sexual Penetration without Consent. The Parole Order had an expiry date of 2 August 1999, with a sentence maximum date of 2 August 2000. Requirements of the Order were: to have no direct/indirect contact with the victim and to reside at Nudugan Community and no other place without the permission of his Community Corrections Officer.
According to Departmental records Mr Pindan was taken to Nudugan Community on the Dampier Peninsular the day following his release to parole. Despite the parole requirement stating that he reside at Nudugan Community, it appears that during his parole period Mr Pindan spent unauthorised time in Broome on a number of occasions. On two occasions he was found to be at his mother's house in Broome, and on another occasion he was spotted in Broome by his supervising officer when he should have returned to Nudugan Community days earlier. When this was followed up by Mr Pindan's sponsor from the community, it was reported that the community vehicle had broken down and his sponsor was unable to collect Mr Pindan from Broome and return him to Nudugan Community. In May 1999, during his field trip to the Dampier Peninsula, his supervising officer met Mr Pindan's parole sponsor, who subsequently informed that Mr Pindan was not at the community as he was reportedly in Broome. In the following month of June, Mr Pindan's officer attended Nudugan Community for supervision with Mr Pindan and he was advised by the parole sponsor that on this occasion Mr Pindan was at Looma Community (some 500km away). In July 1999, Mr Pindan's supervising officer attended Nudugan Community to conduct supervision, however, on this occasion there was no sign of anyone at the community. The writer discussed with Mr Pindan his previous response to parole. Mr Pindan claimed that the above was 'a whole lot of lies' and added that it was not his fault, but a transport fault for not attending appointments.
On 30 October 1998, Mr Pindan offended during the term of the Parole Order when he was convicted for the offence of 'On Premises without Lawful Excuse'. The Police facts are that Mr Pindan was at the Roebuck Bay Hotel in Broome when was reportedly observed by a watchman to be walking through the accommodation units trying to open various doors into the rooms. Mr Pindan incurred a financial penalty of $200 for the offence after appearing before Justices of the Peace in the Broome Court of Petty Sessions.
74 His expressed attitude is of concern:
On 11 July 2013, the writer attempted to explain to Mr Pindan the potential requirements of a supervision order should he be deemed suitable for release under the Dangerous Sexual Offenders Act 2006. Mr Pindan's retort was that he 'does not worry about the Court' that the order requirements were 'full of shit' and that 'my offending was not that serious'.
Accommodation: A better policy is now in force
75 Ms Julie Dabala, a senior Community Corrections officer, has made extensive enquiries seeking accommodation for the respondent. Possibilities for accommodation in Perth with the Palmerston Association, Serenity Lodge and Bridge House were all explored but each organisation would not accept a convicted sex offender. Nor would Rosella House in Geraldton. The respondent is from the Kimberley area and contact was made by Ms Dabala with the Ngnowar Aerwah Aboriginal Corporation in Wyndham, the Milliya Rumera Aboriginal Corporation in Broome, and the Pandanus Park Aboriginal Community, all of which declined to accept the respondent. His uncle, Mr Andrews, is unwilling to accommodate him at the Biridu Community.
76 In DPP (WA) v Alvisse [No 6] [2013] WASC 154, I raised critical concerns the lack of inter-agency cooperation and suggested there was a need for ministerial intervention in order to ensure that the objectives of the DSO Act are fully realised.
77 It is both pleasing and fair to report that substantial progress has been made. Ms Dabala confirmed in her evidence that the Department of Housing has made a guarantee to provide accommodation to a certain number of DSO Act offenders when a judge gives an indication that a supervision order might be made. This is a great advance. Moreover, the Department of Corrective Services has entered into contracts with both Outreach and Outcare to provide intensive services for between 12 and 18 months to assist dangerous sexual offenders in their transition from detention to living in the community under strict supervision. This is a most welcome development.
78 The arrangement with the Department of Housing is presently for the metropolitan area only and therefore does not encompass Halls Creek.
79 Should the respondent remain in Perth, he has been referred to Outcare's Supported Accommodation Programme. The programme aims at establishing a relationship between the respondent and the service provider in the custodial environment and offers housing and support in the community for a minimum period of 12 months and up to 18 months. The accommodation is provided by the Department of Housing.
80 However, Ms Dabala notes that if the respondent resides in Perth he will not have the support of family members and will be isolated from his indigenous culture.
81 There is at present no suitable accommodation in the Kimberley.
82 It appears that the respondent could live with his step-father. The step-father has two residences, one five kilometres from the Halls Creek town and the other at Old Turn River Station approximately 170 kilometres from Halls Creek on the Duncan Highway. The step-father plans on having the respondent reside at the station where he himself spends about six months of the year, returning during the wet season.
83 Ms Dabala advises:
Whilst the block in Halls Creek falls within the area monitored by Adult Community Corrections the Old Turn River Station does not as it is in an inaccessible area. This would mean that both DCS officers and Police would be unable to visit Mr Pindan or monitor his compliance with supervision order conditions on a regular basis.
84 That, of itself, presents no bar to the making of a supervision order. If the court makes a supervision order, then the Department must ensure adequate supervision wherever a dangerous sex offender may reside. Of course Western Australia is a large State and resources are not unlimited.
85 In DPP (WA) v Williams Wheeler JA (Le Miere AJA agreeing) said:
There are a number of issues raised by the situation in which his Honour found himself. One, which was touched upon during the course of argument before us, was the question of funding difficulties. In my view, they were not matters with which his Honour had to be concerned. The Act provides in s 4 that its objects are, inter alia, to provide for continuing 'control, care, or treatment' of persons of a particular class. If those persons require control, care or treatment in order to protect the community, the court can assume that, if an order is made, the executive will perform its function of protecting the community by the provision of appropriate assessment and resources. There is an analogy with the making of orders such as intensive supervision orders to which offenders may be sentenced. Those orders may require offenders to undergo certain forms of assessment or programmes. Since Parliament has made provision for them, the court must assume they will be available. These observations of course apply only to the provision of services which can be provided in one way or another by the executive. There is nothing in the Act to suggest that the Parliament intended to impose obligations on members of the public at large, and McKechnie J was correct in rejecting that possibility (at [60] of his Honour's reasons) [81].
86 There are, however, problems in relation to the step-father's criminal background which makes it unsuitable for the respondent to live with him.
87 The step-father has been convicted of child sex offences. The respondent has no history of interest in sexual relations with children. However, I accept the concerns expressed by Dr Wojnarowska that the environment will be one of anti-social conduct. The step-father has also been convicted of offences relating to cannabis. While that has not been the substance under which the respondent has committed offences, he has been a heavy cannabis user. It is at the least a further indicator of an anti-social environment and a risk factor.
On 24 September 2013, the Team Leader from Kununurra Adult Community Corrections Centre made contact with [the step-father] at Halls Creek to confirm whether he was still willing to have Mr Pindan reside with him. [The step-father] stated that his offer of support and accommodation remained and added that he was currently residing in Halls Creek but would relocate to the old Turn River Station with Mr Pindan until the wet season commences at the end of the year (347).
A phased release
88 Dr Febbo has suggested a phased release. Both he and Dr Wojnarowska consider it essential that the respondent be offered one-on-one counselling to develop an insight into the causes of his offending. As Dr Wojnarowska puts it, 'better knowledge leads to better control'. Dr Wojnarowska also suggested there may be underlying anger issues which were alluded to by the respondent in his second interview with her. Neither she nor Dr Febbo were sure whether there are such issues but each considered that the issue should be explored in counselling. Dr Febbo proposed that counselling should commence immediately. The cognitive function test which Dr Febbo suggested has been done. Dr Cooney's report, quoted earlier, suggests that the respondent can participate in counselling. His earlier engaged participation in courses is evidence of his potential for engagement.
89 Dr Febbo would support release to a residential alcohol rehabilitation programme in the Perth metropolitan area. Following completion of that programme he would then return to his own country in the Kimberley region being subject to the intensive supervision associated with a supervision order.
90 Dr Wojnarowska had not considered the suggestion before it was put to her in the course of evidence but immediately agreed that it sounded like a good idea.
91 The major difficulty of course is that despite Ms Dabala's efforts no such alcohol programme in Perth is prepared to accept the respondent.
92 Mr Ryan Bell, a clinical psychologist, has prepared a report dated 16 September 2013 which addresses the issue of suitability for counselling. He gave evidence at the adjourned hearing. He relied on Dr Cooney's findings which were that there is no current impediment that would likely impact the respondent's treatment readiness and that if treatment were to commence immediately there is reason to believe that in the short term the respondent would engage meaningfully in both group and individual therapy. While the respondent appears to have an unsophisticated insight in respect to his interactions with women and how he would need to intervene to develop intimate and lasting relationships, it is said that there is no reason to believe this particular deficiency would not be amenable to treatment.
93 The respondent also appears to have a high capacity to engage. The question of his motivation is more troubling:
Mr Pindan stated that his continued motivation to engage in mainstream intervention would be strongly determined by the outcome of the current issues before the Court. Mr Pindan stated clearly that he would be unwilling to engage in any therapeutic intervention if he is held in custody on a continued detention order under the WA Dangerous Sexual Offenders Act (2006). However, he also stated that he is willing to engage in therapeutic intervention as directed by the court should he be released into the community.
...
In summary, based on the results of the present sessions and based on Mr Pindan's level of engagement with the assessing psychologist and within treatment programs previously, Mr Pindan appears to have a cognitive capacity to participate in treatment. He has indicated his intention to engage in treatment only if he is made subject to a community based order. However, as motivation is a dynamic concept, this view may be subject to change. In any event, it is unlikely that further assessment prior to Mr Pindan being made subject to a DSO order will be able to draw any meaningful conclusions about whether or not he will be motivated to engage in further treatment (343, 344).
94 However, Mr Bell in his evidence said this should be treated with extreme caution. It is.
95 The respondent's country is in the Kimberley and that is strongly where he wishes to return.
96 The respondent has no ties to the Perth community and finds even Broome to be a large town. If he had a real connection to the metropolitan area I would be satisfied that the community could be adequately protected by a supervision order releasing him into the metropolitan community with the support which has been outlined. He would require intensive one-on-one counselling but that is available, according to Mr Bell, both in and out of prison. That counselling would have to include assistance for him to gain greater insight into his alcohol consumption and its effect on offending because organisations that provide such programmes in the community have, as indicated, declined to accept him.
97 However, I accept Mr Trowell's observation that to release him into the Perth community may be setting him up to fail. In fact I consider there is a very considerable chance that he would breach his supervision by taking refuge in alcohol. If he did so that would increase his risk to the community to an unacceptable level.
98 Release into the Kimberley region on a supervision order would be the preferred option but there is no suitable accommodation. I do not regard the lack of available housing in the Kimberley, especially in Halls Creek, of such a nature as to justify a conclusion that the objects of the DSO Act were not being followed to the extent that I could make no order: Attorney General v Francis:
It is possible, too, that the view taken by Gummow J. in Fardon v. Attorney-General for Queensland supports an argument that executive government repudiation of the preventive objects of the Act in a particular case (as, for example, by the refusal of any treatment to a prisoner clearly capable of, and amenable to, rehabilitation) could lead the court to refuse to make any order at all. If it were to appear to the court that any further detention would be truly punitive in character and, thus, contrary to the intention of the legislation, there would be no basis for the court to make an order of any kind under the Act. The conditions of further restraint upon the detainee's liberty would be out of character with the intention of the legislature: that such restraint is preventive. The character of the detention authorised by the Act is, as was explained in the reasons of the High Court in Fardon v. Attorney-General for Queensland, not punitive but preventive [31].
99 This is on the assumption that such a course is possible, which is highly doubtful: DPP (WA) v Williams. Although the point in Attorney General v Francis is a different point from that arising in DPP (WA) v Williams, should they be in conflict, I would consider myself bound by DPP (WA) v Williams.
100 Moreover the passage quoted from Attorney General v Francis was not strictly necessary to the decision; whereas the reasoning in DPP (WA) v Williams leads directly to the result.
101 In any event, and leaving aside the question of accommodation, I am concerned at the respondent's continuing lack of insight into the risk factor posed by his consumption of alcohol. It is true, as Ms Barone suggests, that during the nine year period there were many occasions when he was drunk and yet did not offend. On the other hand, over the years as his record shows, there are a number of occasions when he was drunk and did offend.
102 I am aware of the report from IMMASU quoted earlier but on the whole of the evidence I consider that his lack of insight into his alcohol consumption and its possible link with offending is a significant risk factor.
103 The paramount consideration is the protection of the community. Bearing that consideration in mind, I conclude that the risk to the community by release on supervision is unacceptable. The only order I can presently make is an order for detention for treatment.
Orders
104 The respondent is declared a dangerous sexual offender. He is to be detained in custody for an indefinite term for treatment.
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