Director of Public Prosecutions (WA) v Ratcliff
[2011] WASC 127
•13 MAY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- RATCLIFF [2011] WASC 127
CORAM: EM HEENAN J
HEARD: 18 APRIL 2011
DELIVERED : 18 APRIL 2011
PUBLISHED : 13 MAY 2011
FILE NO/S: MCS 56 of 2010
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
ALAN DAVID RATCLIFF
Respondent
Catchwords:
Criminal law - Dangerous sexual offenders - Applications for continuing detention order - Supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17
Result:
Conditional supervision order made
Category: B
Representation:
Counsel:
Applicant: Mr J Mactaggart
Respondent: Ms M Barone
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Legal Aid (WA)
Case(s) referred to in judgment(s):
Director of Public Prosecutions v GTR [2008] WASCA 187
Director of Public Prosecutions v Williams (2007) 35 WAR 297
EM HEENAN J: In this case the Director of Public Prosecutions for Western Australia has applied for an order under s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) in respect of the respondent, Alan David Ratcliff. This application is being made as a result of orders for directions made by McKechnie J on 29 October 2010.
In the past, Mr Ratcliff has been convicted of serious sexual offences within the meaning of s 3 of the Dangerous Sexual Offenders Act 2006, which I shall refer to as 'the Act'. On four separate occasions since 1994, he has been sentenced to terms of imprisonment, and the details of those offences and the terms of imprisonment are set out in the materials which have been provided in evidence.
On 29 July 1994, Mr Ratcliff was sentenced to 2 years' imprisonment with eligibility for parole by this court for one count of sexual penetration of a child under 13 years. He was also then sentenced to 1 year's imprisonment concurrent on one count of indecent dealing with a female under 13 years.
His second term of imprisonment was imposed on 19 February 1998. This was a sentence totalling 8 years' imprisonment imposed by the District Court at Perth with eligibility for parole. There was one count of assault occasioning bodily harm for which he received 4 years' imprisonment. He was also sentenced on one count of aggravated sexual penetration to 3 years' imprisonment; and on one count of aggravated sexual penetration to 4 years' imprisonment. Those two matters were ordered to be served concurrently on each other, but cumulatively upon the assault occasioning bodily harm. The total sentence of 8 years was ordered to commence from 1 October 1997.
The third term was imposed on 2 February 2004. This was a sentence of 20 months' imprisonment with eligibility for parole imposed at the South Hedland sittings of the District Court of Western Australia for two counts of indecent dealings with a child under 13 years. He was sentenced to 20 months' imprisonment on each count, each term to be served concurrently, and the sentence was ordered to commence from 30 August 2003.
The fourth term was imposed on 6 October 2008 at the Kalgoorlie District Court. This was for a total of 3 years 4 months' imprisonment. On one count of indecent dealing with a child under 13 years he was sentenced to 28 months' imprisonment, and on one further count of indecent dealing with a child under 13 years he received another 12 months' imprisonment cumulative.
At the time of the most recent reports Mr Ratcliff had been in prison on his then current term for 724 days. He has spent a total of 2,911 days as a sentenced prisoner to the date of these reports, and more since.
The submission of the Director of Public Prosecutions is that Mr Ratcliff is, within the meaning of the Act, a dangerous sexual offender, and that he constitutes an unacceptable risk to the community unless a continuing detention order or a supervision order is made.
The principles applicable in these cases have been outlined in the Director of Public Prosecutions v Williams (2007) 35 WAR 297 by Wheeler JA [93] ‑ [95], and in the Director of Public Prosecutions v GTR [2008] WASCA 187 by Steytler P and Buss JA. If a court is satisfied that a person constitutes a serious danger to the community within the meaning of the Act, it is necessary that an order be made under the legislation.
In this case, a series of psychiatric reports have been prepared for the court. One by a psychiatrist, Dr Mark Hall, dated 20 January 2011, concluded that the respondent is at a higher risk of reoffending sexually if not subject to a community supervision order or to a continuing detention order. Dr Hall concluded that the essence of the respondent's risk lies in his record of similar behaviour, unaddressed treatment needs in relation to his deviant sexual interest in prepubescent children, and antisocial or psychopathic personality, as well as in his potential for relapse to alcohol dependence, and because of an unrealistic approach to his future plans.
Another examining psychiatrist, Dr Wojnarowska, concluded in her report dated 20 January 2011 that the respondent is at a high risk of reoffending.
The submission for the Director is that Mr Ratcliff's criminal history discloses a pattern of offending under which he opportunistically interferes sexually with young children. Dr Hall, whose report has already been noted, says that the respondent has exhibited a chronic and diverse history of sexual violence to victims of all ages and sexes, and sexual violence ranging from fondling through to violent penile penetration. In the report of Dr Hall, an opinion has been reached that the respondent lacks insight into his deviant sexual interest in children despite having completed the intensive sex offender treatment program. Dr Hall is of the opinion that the respondent exhibited extreme minimisation or denial of sexual violence, as well as attitudes which support or condone sexual violence. He also is of the opinion that the respondent sexualised and objectified children and continued to place responsibility on his victims.
For these reasons, the Director has submitted that the conclusions reached in the reports of the two examining psychiatrists in conjunction with the respondent's criminal record lead to the conclusion that the Director has established to the requisite degree of proof under s 7(2) of the Act that there is an unacceptable risk that if the respondent were not subject to a continuing detention order or to a supervision order he would commit a serious sexual offence.
Having regard to the conclusions of Dr Hall about Mr Ratcliff's lack of insight into his deviant sexual interest in children, the Director has submitted that the appropriate order is that initially the respondent should be subject to a continuing detention order.
Since those reports came to hand, further reports, set out in exhibit 1.4, have been prepared. These include a letter from Dr Wojnarowska; an email communication from Dr Hall; a community sex offending assessment report by Mr Barry, the clinical supervisor of the community programs section of the Department of Corrective Services; and a supplementary adult Community Corrections community supervision assessment order by the acting senior Community Corrections officer.
These more recent reports have reached the conclusion that under suitable protective regimes and constant monitoring with restrictions, Mr Ratcliff could be satisfactorily placed in the community. For that reason, the Director is now of the view that a supervision order incorporating conditions would meet the situation. There have been negotiations between the Director of Public Prosecutions and counsel for Mr Ratcliff about the terms of a supervision order, and a draft order has been put before the court this morning, which I have examined.
I am satisfied that the respondent is a serious danger to the community, and I make that finding within s 7 and s 17 of the Act. As a consequence, the court should order, as I now do, that the respondent be the subject of a supervision order pursuant to s 17(1)(b) of the Dangerous Sexual Offenders Act for a period of five years from today on a series of conditions which are set out in the order.
This order will be annexed to these reasons and will form part of the reasons. It is, however, too long to recite in full at this point but, as this is a matter of public interest, I draw attention to the following significant provisions in the order. First of all, the respondent must take up residence at a nominated address, live there continuously, and not depart from that address without the approval of a Community Corrections order, and he must not leave or remain out of the state without the permission of a Community Corrections order.
Next, there is a series of conditions relating to regular reporting to the Community Corrections officer and supervision by the Community Corrections officer. These require a report within 24 hours of release; to remain under the supervision of a Community Corrections officer as if he were an offender subject to the Sentence Administration Act 2003 (WA) s 76; to receive visits from a Community Corrections officer, and not to commence or change employment without the prior approval of a Community Corrections officer.
There then follows a series of conditions relating to the attendance at programs or treatment which envisage continuing attendance, observation and treatment by a psychiatrist, psychologist, mentor, support service and other persons nominated by the Community Corrections officer.
There is then a series of conditions relating to regular reporting to the Western Australian Police, and to remaining under the supervision of the officer in charge of the Sex Offender Management Squad and complying with all the obligations imposed pursuant to the Community Protection (Offender Reporting) Act2004 (WA).
There is then a series of conditions relating to disclosure and exchange of information. There contain prohibitions against communicating with any of the victims of past offences, including an obligation not to breach any provision or to commit any offence under the Restraining Orders Act 1997 (WA).
Then there is a series of regulations to refrain from specified forms of criminal conduct. Were he to commit any such offence, Mr Ratcliff would, of course, be subject to prosecution and punishment for such an offence, but it would coincidentally constitute a breach of the terms of this order, justifying return to permanent custody.
Then there is a series of obligations relating to the taking and following prescribed medical advice and treatment. Then there is an extensive series of orders to prevent the development of, or to avoid, what are called high risk situations.
I have examined the terms of the order and am satisfied that it complies with the provisions of the Act, and that it follows the format of similar orders in other cases. I therefore make the order.
Residence
1.Take up residence at an approved address and reside continuously at that address or at a different address only if such different address is approved in advance by the Community Corrections Officer assigned to him ('the CCO' - which designated CCO may be changed by the Department of Corrective Services at any time).
2.Not leave or remain out of the State of Western Australia without the permission of the CCO 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
3.Report to the CCO at an approved Community Corrections Centre within 24 hours of release from custody under this order, and thereupon advise the CCO of his current name and address.
4.Be under the supervision of the CCO, and comply with the requirements of s 76 of the Sentence Administration Act 2003 (WA) as if he were an offender subject to that section.
5.Report to, and receive visits from, the CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of the respondent.
6.Notify the CCO of any change of his name at least two days before the change is due to happen.
7.Not commence or change employment without the prior approval of the CCO. Such approval ought not unreasonably be withheld, it being desirable that the respondent secure employment, provided that the risk to the community and particularly children can continue to be adequately managed.
Attendance at programs or treatment
8.Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by the CCO.
9.Comply with the requirements of all programs designed to address his offending behaviour, as directed by the CCO.
10.Permit any 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 to the Department of Corrective Services and/or Western Australian Police.
Reporting to Western Australian Police
11.Report to the officer-in-charge of the Sex Offender Management Squad headquarters at Perth within 48 hours of release from custody, unless otherwise specified by the court, 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.
12.Comply with all obligations imposed on him pursuant to the Community Protection (Offender Reporting) Act 2004 (WA);
Disclosure/exchange of information
13.Agree to the exchange of information between persons and agencies involved in the implementation, supervision and enforcement of this order, including confidential information.
14.Allow the CCO, Western Australian 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 his offence history. Any disclosure pursuant to the permission required by this condition is only to take place with the express permission of an officer of the Department of Corrective Services of the level of deputy commissioner or above, or with the express permission of a police officer with access to the ANCOR Register who is of the rank of inspector or above.
Restrictions on contact with victims
15.Have no contact, directly or indirectly, with the victims of any of his sexual offending unless such contact is either: conducted strictly in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Corrective Services; or conducted in a manner approved in advance by the CCO, such latter approval being not to be given except with the express consent of the prohibited person; or conducted pursuant to an order of the Family Court of Western Australia;
16.Unless contact is permitted pursuant to the previous condition, immediately physically withdraw from any situation or immediate location in which contact is made with a victim (including being in the immediate presence of such a person, whether inadvertently or otherwise), without engaging with such victim in conversation or at all, whether by word or gesture, and must avert his gaze from such victim at all times;
17.Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997 (WA).
Criminal conduct
18.Not commit any sexual offence, as defined in the Evidence Act 1906 (WA) s 36A.
19.Not commit any offence under s , s 203, s 204, s 204A s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA);
20.Not commit any offence under either s 70A or s 401 Criminal Code 1913 (WA) where the place involved in the offence is either a place ordinarily used for human habitation, or a place ordinarily occupied by children.
21.Not commit any other offence the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
22.Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).
23.Not possess, consume or use any prohibited drugs, plants or substances including, but not limited to, cannabis.
Medications and treatment
24.Attend upon any medical practitioner, psychologist, psychiatrist or counsellor as directed by the CCO.
25.Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to his level of risk of serious sexual re-offending and compliance with treatment to the Department of Corrective Services and/or to Western Australain Police.
26.Not to abuse any prescription medication.
Prevention of high-risk situations
27.Not associate with any person known by him to have committed a sexual offence, unless such association is authorised in advance by the CCO.
28.Not possess, use or be under the influence of alcohol.
29.Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drug use as directed by a CCO or by a police officer, including accompanying such persons to an appropriate location for such testing to take place.
30.Not remain in any place where prohibited drugs are being consumed and withdraw from the place if any such consumption is occurring.
31.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 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;
(c)the child is a biological grandchild of the respondent, or the child is a child one of whose biological parents is a sibling of the respondent of either the full or the half‑blood, and in either case a parent of the child who has guardianship or custody of the child is aware that:
(i)the respondent has convictions with respect to sexual offences against children; and
(ii)that the respondent is subject to legal restriction as to his contact with children generally.
32.Where any unsupervised contact with a child under the age of 16 years is initiated by the child, unless the contact is permitted under cl 25(b) or (c) above, withdraw immediately from the presence of the child.
33.Provide details of any contact with a child under the age of 16 years both to the CCO and to the police on the next occasion he reports to that person or agency.
34.Not conduct computer searches for, nor collect in either electronic or permanent form, images of children, whether indecent or not, with the exception of::
(i)images of family members that are not indecent images; or
(ii)commercially produced images that are incidental to advertising, promotional or entertainment items such as catalogues, books, DVD covers and the like.
35.Not form any domestic, romantic, sexual or otherwise intimate relationship with a person who has children under the age of 16 years in their care either full time or part time, unless approved by the CCO.
36.Make full disclosure regarding his past offending and the current order to anyone with whom he commences a domestic, romantic, sexual or otherwise intimate relationship, other than commercial relationships, of more than two weeks' duration, which disclosure can be confirmed with such a person by the CCO or a police officer.
37.Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel membership of or affiliation with other clubs, associations or groups if directed to do so by the CCO or police officer.
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