Director of Public Prosecutions (WA) v TJD - [2011] WASC 83

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- TJD [2011] WASC 83

CORAM: COMMISSIONER SLEIGHT

HEARD: 22 MARCH 2011

DELIVERED : 31 MARCH 2011

FILE NO/S: MCS 2 of 2011

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
TJD
Respondent

Catchwords:

Criminal law and procedure - Dangerous sex offender - Whether a serious danger to the community - Whether a continuing detention or a supervision order should be made - Turns on its own facts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 17(1)

Result:

Application for continuing detention order granted

Category: B

Representation:

Counsel:

Applicant: Ms L E Christian
Respondent: Mr D J McKenzie

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: David McKenzie

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

Director of Public Prosecutions (WA) v GTR [2007] WASC 318
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Williams [2007] WASCA 26; (2007) 35 WAR 297
The State of Western Australia v Latimer [2006] WASC 235

COMMISSIONER SLEIGHT: This is an application for an indefinite custody order or a supervision order under s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act). The application concerns the respondent Mr D who has a lengthy history of committing sexual offences with violence or threats against randomly selected females.
Section 17 provides that if the court finds that the offender is a serious danger to the community then the court may either:
(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.
The respondent in this matter, Mr D, was due for release from prison on 27 March 2011, having completed cumulative terms of imprisonment imposed on 26 July 2005, 2 August 2006 and 24 April 2007. An application for an order under S 17 of the Act can be made in relation to a person who is under sentence of imprisonment wholly or in part for a serious offence. The sentences being served by Mr D included sentences imposed in relation to serious sexual offences as defined in the Act. On 23 March 2011 I made an order pursuant to s 14(2)(b) of the Act that Mr D be detained in custody until I delivered my decision in this matter on 31 March 2011.
In support of the application the applicant tendered by consent three volumes of written material, including psychiatric reports of Dr D M Hall and Dr S D Febbo. Also five witnesses were called by the applicant details of which will be given later in this decision.
In deciding whether to make a final order pursuant to s 17 of the Act, the paramount consideration is to be the need to ensure adequate protection for the community: s 17(2).
This is consistent with the objects of the legislation as set out in s 4, which provides as follows:
(a)to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community; and
(b)to provide for continuing control, care, or treatment, of persons of a particular class.
Section 7 of the Act provides 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.
The words 'unacceptable risk' in s 7(1) refer to a risk which is unacceptable having regard to the serious consequences of making a finding that a person if not the subject of a continuing detention order or a supervision order would commit a serious sexual offence. Once a court finds an unacceptable risk of this type, the finding of a serious danger to the community under s 17 of the Act inevitably follows: Director of Public Prosecutions (WA) v Williams [2007] WASCA 26; (2007) 35 WAR 297 [66] (Wheeler JA, with whom Le Miere AJA agreed); Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [14], [25] (Steytler P & Buss JA).
The word 'unacceptable' necessarily connotes a balancing exercise. The court is to have regard, on the one hand, to the nature and likelihood of the risk (that is the risk of the commission of a further serious sexual offence, with serious consequences for the victim) and, on the other hand, the serious consequences for the offender if an order is made (either the offender being placed in detention or being required to comply with a supervision order) without having committed an offence: DPP v GTR [27]. However, in performing this balancing exercise the court must give effect to s 17(2) of the Act, which as noted above, provides that the paramount consideration is to be the need to ensure adequate protection of the community.
The standard of proof on the Director of Public Prosecutions (the DPP) on an application under s 17 is to a high degree of probability. This is a standard more than the civil standard but less than the criminal standard of beyond reasonable doubt: DPP v GTR [34].
In this case, in view of the history of Mr D, his personal circumstances and the content of two psychiatric reports ordered under s 14 of the Act, it is not disputed that I ought to be satisfied that there is an unacceptable risk that if an order is not made, Mr D would commit a sexual offence and therefore he is a serious danger to the community. The real dispute in this matter is whether the order under s 17 ought to be by way of a detention order or a supervision order. Notwithstanding a concession by counsel for Mr D, and it is not disputed that pursuant to s 17 a finding should be made that Mr D is a serious danger to the community, it is still necessary for me to examine all the evidence and make that finding.

Past criminal history

The starting point in assessing whether Mr D is a serious danger to the community within the meaning of s 17 of the Act, is his history of offending. For the purpose of this application I am entitled to take into account Mr D's criminal convictions in the Children's Court: DPP v GTR.
Mr D started committing serious sexual offences at the age of 15 years (he was born on 30 May 1976 and is therefore now aged 34 years). The details of Mr D's sexual offending and convictions can be summarised as follows:
1.On 21 August 1991 Mr D (then aged 15 years) committed the offences of deprivation of liberty and assault. On that date Mr D followed a 19‑year‑old female who was walking home from work at about 5.40 pm. Mr D indicated that he had a firearm wrapped in a jumper which he was holding. He grabbed the complainant and forced her into an abandoned building. A struggle occurred and eventually the complainant was able to break free and run away.
2.On 22 August 1991 Mr D committed the offence of assault. The complainant was a 23‑year‑old female walking along the same footpath as the complainant on the previous day. Mr D appeared from behind a disused building and told the complainant to follow him or he would 'blow her away'. He produced a small replica handgun. Believing the gun was real, the complainant became distressed but on looking at the gun more closely realised it was a replica. The complainant then ran off.
3.On the 22 August 1991 Mr D committed the offences of deprivation of liberty and two counts of aggravated sexual assault. At about 4.00 pm on that date Mr D approached a 17‑year‑old female. He said to her 'if you do as I say you won't get hurt'. He pointed a small replica handgun which was concealed in his jumper. The complainant thinking the gun was real went with Mr D to a men's toilet block where Mr D forced the complainant to the ground and penetrated her vagina with his penis against her will. Mr D then got dressed and before leaving threatened the complainant if she told anyone.
Before the complainant could leave the toilet area Mr D returned with another male youth. Mr D told the complainant that his friend now wanted to have sex with her as well. Mr D pointed the firearm at her and told her to remove her clothes again and if she did not, he would 'blow her brains out'. The complainant removed her clothing and Mr D left the toilets, remaining outside whilst his companion had sexual intercourse with the complainant against her will.
4.On 23 September 1991 Mr D committed the offence of being on premises without lawful excuse. At about 2.00 am Mr D gained entry by an open lounge room window of a unit of a 27‑year‑old female. Once inside the unit Mr D was apprehended by the complainant's boyfriend who warned him to leave and stay away from the units.
5.On 9 October 1991 Mr D committed the offence of attempted aggravated sexual assault. On that date Mr D was staying with a cousin at her unit. Also staying at the unit was the 23‑year‑old female complainant. The cousin left the unit leaving Mr D, the complainant and three young children alone. At about 10.00 pm the complainant went to bed leaving Mr D in the lounge room. Sometime later the complainant was woken by the presence of Mr D in her bedroom. Mr D had a stocking over his head and pretended to be someone else. He grabbed the complainant by the hair and held what appeared to be a bread knife at the neck of the complainant and stated that if she did not have intercourse with Mr D, who he stated was in the lounge room, he would cut her throat. He also stated that he would come back later and if she had not done what he said he would cut her throat and her daughters. He then left the bedroom. Immediately after this Mr D entered the bedroom and repeatedly suggested to the complainant she should do what she was told. The complainant was able to get pass Mr D and seek help from a neighbour.
6.On 13 December 1991 Mr D committed the offence of breaking and entering a dwelling with intent and assault with intent to commit aggravated sexual assault. On that date Mr D gained entry to the house of a 42‑year‑old female neighbour by smashing a window. Once inside Mr D undressed in the bathroom and then proceeded to the kitchen where he collected a knife. He then entered the complainant's bedroom naked and in possession of the knife. Mr D disguised himself by placing a jumper over his head. He then placed one hand over the complainant's mouth and also placed the knife to her throat. The complainant woke and began to struggle and kick, Mr D ran from the room dropping the knife.
7.Mr D pleaded guilty to all charges referred to in 1 ‑ 6 above and on 13 March 1992 was sentenced by the President of the Children's Court, his Honour Judge Jackson, to a total sentence of 3 years' detention. Mr D was released from detention on 9 March 1994.
8.On 21 April 1994 (approximately six weeks after release from detention) Mr D committed an offence of indecent assault. Mr D, who was on a BMX bike, rode passed a female complainant. As he passed the complainant he grabbed at the complainant's breasts, missed and grabbed her shirt. He said 'nice breasts' as he rode off.
9.On 3 May 1994 Mr D committed an offence of indecent assault. Again, he approached a female complainant on his bicycle and grabbed her on the buttocks. He faced the complainant and said 'do you want to have sex' and then left.
10.Sometime between 2 May and 4 May 1994 Mr D committed the offence of attempted indecent assault. He hid around a corner of a building watching the entrance to a fitness centre. As the complainant left the fitness centre Mr D approached her with the intention of grabbing her breasts. She became suspicious and ran back into the centre.
11.On 30 May 1994 Mr D committed an offence of indecent assault. The offence was committed on his 18th birthday. Mr D was riding a push bike. He rode up to the complainant who was walking along a walkway and leaned against her forcing her against a mesh fence and grabbed her on the right buttock. He asked her if she would have sex with him. The complainant has struck Mr D who has then ridden off.
12.On 21 June 1994 Mr D committed a further offence of indecent assault. The complainant was walking from her vehicle to the entrance of a fitness centre when Mr D has walked up behind her and grabbed her on the bottom. He then immediately walked off.
13.Mr D was sentenced in the Children's Court following pleas of guilty to each of the charges committed in April and May 1994 whilst he was a juvenile (items 8 to 10 above). He was sentenced by the President of the Children's Court to 16 months' imprisonment. Mr D also appeared in the District Court on 8 March 1995 in relation to the offences committed on 30 May 1994 and 21 June 1994 (items 11 and 12 above). He received a total sentence of 6 months' imprisonment cumulative on the sentence imposed in the Children's Court on 19 January 1995.
14.On 13 September 2000 Mr D committed offences of deprivation of liberty, aggravated sexual penetration (digital) without consent and two counts of stealing. The 18‑year‑old female complainant was travelling home alone by train after work at about 8.00 pm. As she walked from the footbridge Mr D grabbed her from behind around the neck, pressed something into her back which she was told by Mr D was a knife. Mr D forced her to a dark deserted area not far from the station. Mr D forced her to take her shoes off and then ripped off her underwear and forced her to the ground where he forced his finger into her vagina despite her resistance. After digitally penetrating the complainant he demanded money and her mobile telephone and stole a small amount of money from her and her mobile telephone. He then walked her from the area and released her. Mr D was later identified by way of DNA.
15.On 14 October 2003 Mr D committed the offences of threatening to kill, deprivation of liberty and assault occasioning bodily harm. Mr D pleaded not guilty to these charges but was found guilty following a trial before a judge and jury in the District Court in Perth. Consistent with the remarks of the sentencing judge the facts of this matter are that the 18‑year‑old female complainant was visiting her grandmother's grave at the Midland Cemetery. As she walked through the cemetery Mr D emerged from a toilet block and approached her as the complainant stood at her grandmother's grave. A short conversation occurred during which the complainant became concerned as to her safety and began cautiously to walk back to the entrance of the cemetery. Mr D followed her and eventually approached her and placed his left arm on her left shoulder and said 'if you scream, I'm going to kill you'. The complainant screamed and thereupon Mr D placed his right hand over her mouth. At this point the complainant noted that Mr D had strands of thin wire wrapped around one of his hands. The complainant bit Mr D's hand and simultaneously pushed him and stepped back so as to release herself and punched Mr D in the head. Mr D then punched her in the head whereupon both the complainant and Mr D ran away in opposite directions. The complainant suffered a large bruise to her left temple as a result of the assault.
16.On 26 July 2005 Mr D was sentenced in relation to the matters referred to in the previous paragraph and received a total sentence of 30 months backdated to 28 May 2005.
17.On 2 August 2006 Mr D was sentenced in the District Court in relation to the offences committed on 13 September 2000. Mr D pleaded guilty to these charges and received a total sentence of 3 years 1 month imprisonment cumulative on the sentence imposed on 26 July 2005.
18.On 22 June 2006 Mr D committed the offence of creating a false belief contrary to s 171(2) of the Criminal Code (WA). The facts of this matter are that Mr D alleged that whilst in prison a fellow prisoner had anally raped Mr D. Mr D was interviewed on three different occasions by the police prison squad detectives and on each occasion he was adamant the reported sexual penetration had occurred. A full written statement of complaint was signed by Mr D on 26 June 2006. The report was subsequently found to be false and Mr D was sentenced on 20 April 2007 following a plea of guilty and was given 3 months cumulative on his existing terms of imprisonment.

Section 7(3) factors

I will now deal with each of the factors which must be taken into consideration under s 7(3) of the Act.

(a) any report that a psychiatrist prepares as required by s 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person

Mr D was examined by two psychiatrists, Dr M D Hall and Dr S D Febbo, for the purpose of preparing reports required by s 37 of the Act.
The first observation I make is that it appears Mr D cooperated fully with each psychiatrist in the examinations conducted.

Dr M D Hall

Dr Hall saw Mr D on 26 February 2011 and 5 March 2011 at Casuarina Prison. He prepared a report dated 10 March 2011 pursuant to s 37 of the Act and also gave evidence in court.
Dr Hall diagnosed that Mr D suffered from clinical disorders in the form of:
•sexual sadism;
•cannabis dependency - in remission whilst in custody;
•polysubstance (including alcohol) abuse - in remission whilst in custody;
•an antisocial personality disorder.
In his reported dated 10 March 2011 Dr Hall stated as follows:
The diagnosis of sexual sadism is classified as a paraphilia, in that it characterised by intense fantasies, urges, or behaviours in which the individual is sexually aroused by causing humiliation or physical suffering of another person. In [Mr D's] case this involves sexual activity with non‑consenting persons in which he induces fear or terror in the victim.
In relation to the diagnosis of antisocial personality Dr Hall explained this diagnosis in his evidence, that it was 'a state of behaving, thinking, feeling which is deeply ingrained, longstanding, unpredictable and causes some difficulty in interpersonal functioning'. Dr Hall further commented that the characteristics include 'an habitual disregard for the rights of others'.

Dr Hall in his evidence also stated that he found Mr D displayed traits of borderline personality type and traits of a narcissistic personality type. This meant Mr D was 'somewhat fragile and insecure in his personal relationships with a proneness to react aggressively if he feels that he has perhaps been abandoned or rejected'. Dr Hall also described the narcissistic traits as manifesting amongst other things a tendency to lack empathy for others.
Dr Hall also conducted a number of tests to assess the likelihood of Mr D reoffending. Three tests were conducted:
(i)the Static 99 test;
(ii)the Psychopathy Checklist - Revised (PCL‑R);
(iii)Risk for Sexual Violence Protocol (RSVP).
Dr Hall concluded in his report as follows:
[Mr D] is currently at high risk of reoffending sexually if not subject to a community supervision order or continuing detention order. The essence of [Mr D's] risk lies in:
•his past history of persistent sexual offending against lone females previously unknown to him and involving the use of weapons and threats to kill;
•unaddressed deviant interest in sexual violence;
•antisocial personality disorder;
•unaddressed substance abuse issues with a high likelihood of relapse;
•persistent attitudes that support or condone sexual violence including the adoption of a victim stance in his perception of the ineffability of offending due to his own alleged childhood sex abuse, thereby justifying his actions;
•lack of self‑awareness in relation to his attitudes, antecedents to offending and substance abuse;
•high sexual drive.
[Mr D] is genuine in his desire not to reoffend or cause further harm. However in my opinion, considerably more treatment is required in relation to the above areas before management in the community setting has a reasonable likelihood of success.

Dr S D Febbo

Dr Febbo saw Mr D on 1 March, 2 March and 3 March 2011 at Casuarina Prison. He prepared a report dated 9 March 2011 pursuant to s 37 of the Act and also gave evidence in court. Dr Febbo diagnosed Mr D as suffering from the following clinical disorders:
•major depressive disorder, recurrent, currently in remission and/or being appropriately treated;
•substance abuse/dependence;
•paraphillia not otherwise specified;
•antisocial personality disorder;
•borderline personality disorder;
•histrionic personality traits.
Dr Febbo also conducted various risk assessment tests. He conducted the three tests mentioned by Dr Hall, that is, the Static 99 test, the PCL‑R test, and the RSVP test. He also conducted an additional test known as the Historical Clinical Risk‑20 (HCR‑20). Dr Febbo, in his report, concluded as follows:
In my opinion the risk assessment measures, which include the Static 99, HCR‑20, PCL‑R and the RSVP, are consistent with [Mr D] being at high risk of a serious sexual offence following release if he is not subject to a detention or supervision order.
In my view, following from a detailed review of the documentation and the interviews, the following factors are significant in the presentation and, in turn, are important in understanding [Mr D's] sexual offending and level of risk.
1.Marked personality pathology with the possible presence of psychopathy.
2.[Mr D's] history is of questionable reliability.
3.The presence of sexual deviance and, in my opinion, [Mr D] fulfils the DSM4‑TR criteria for a paraphilia.
4.The presence of a Major Depressive Disorder that is currently either in remission, or is being appropriately treated.
5.The history of serious substance abuse/dependence.
6.At least in part, related to the above factors, the presence of instability in areas such as his relationship history.
7.[Mr D's] own history of sexual abuse, early sexual experiences and psychosexual development.
8.[Mr D] appears to have made some progress in relation to addressing his sexual offending; however, this progress has been limited and significant additional work needs to be done in this area.

(b) any other medical, psychiatric, psychological, or other assessment relating to the person

Tendered into evidence in support of the application were three volumes of documents. These documents included material relevant to Mr D's court history. The documents include various psychiatric, psychological and pre‑sentence reports prepared relating to Mr D. I propose to highlight some of this material.
In a psychological report of Mr Phil Watts dated 19 December 1991 Mr D (who was then aged 15 years) was described in the following terms:
[Mr D] presents as an awkward youth who tends to be slow of speech, however his father's speech style is of a similar pace. In conversation he presents as retarded. On the Wechsler intelligence test he clearly is not retarded but is of low average intelligence. Analysis of his response style would suggest he thinks in extremely concrete terms and has no abstracting ability. I found him to be extremely egocentric - a state characteristic of someone much younger.
A report of Dr Hugh Cook, psychiatrist, dated 6 January 1992 described Mr D as follows:
In summary, [Mr D] is a 15 and a half year old boy of low intelligence who is an immature, highly egocentric boy who does not appear to have the capacity to appreciate the consequences of his behaviour.
Dr Cook recommended an EEG and CAT scan of Mr D's head. This was conducted but showed no abnormality.
A pre‑sentence report dated 7 December 1994 commented as follows:
[Mr D] presents as a polite young man with perhaps a lower than average level of intelligence. He seems to respond well to a firm and structured environment such as the detention centre and his present restrictive bail conditions.
The history available clearly indicate a young man from a troubled background with serious behavioural problems. Since these problems are of longstanding and they contain disturbing elements such as a leaning towards predatory activity with regard to woman and a lack of sensitivity regarding the impact of his behaviour on his victims, [Mr D] is assessed at a high level of risk for reoffending.
A report by psychologist, Ms Denise Cull dated 29 December 1994 commented as follows:
[Mr D] has demonstrated aggressive sexual behaviour over a period of time, preceded by obsessive ruminations about deviant thoughts and urges. These behaviours are indicative of the presence of an entrenched level of deviancy and an associated high risk of recidivism. Whilst [Mr D] has demonstrated some insight as to when he is at risk of reoffending, and has shown a capacity to implement some relatively naïve thought stopping techniques, he is a very young sexually deviant offender and without treatment, the community will be placed at continual risk as he develops into adulthood armed with greater sophistication.

(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future

I take into account Mr D's past history of offending and the reports earlier referred to in this decision which in my view establish Mr D has a propensity to commit serious sexual offences.

(d) whether or not there is any pattern of offending behaviour on the part of the person

There is in my view an underlying pattern to Mr D's offending. The victim is generally a female stranger who is coerced into various forms of sexual activity without her consent by threats of or the use of violence by Mr D. Secondly, the offending is often associated with drug use and unstable domestic situations.

(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

It is convenient that I deal with items (e) and (f) together.
In May 1995 Mr D commenced an intensive Sex Offender Treatment Programme. However, due to distracting behaviour in group sessions and lack of commitment, Mr D was terminated from treatment on 26 September 1995. A report dated 27 September 1995 states as follows:
Despite distractions and eventual need to prematurely terminate him from treatment, [Mr D] is believed to have made some impact on his deviant behaviour as a consequence of treatment. He is aware of the areas of high risk for him and has a working knowledge of what to do should he find himself at risk. Whilst it would appear that he genuinely does not wish to reoffend, and that he does, in fact, have the personal resources to remain offence free, his impulsive and immature behaviour will continue to place him at risk of spontaneously acting upon the urge to offend. His impulsivity will potentially serve to override the newly acquired skills. Maturity may positively influence his capacity to use these new skills, however in the interim he will need to be extremely vigilant of his behaviour, his associates, his use of alcohol and/or drugs and to maintain continual awareness of the issues within his cycle.
In May 2006 Mr D participated in a programme to address his substance abuse. Mr D did not complete the programme. A report dated 6 July 2006 stated as follows:
[Mr D] understands why he used to turn to drugs and is making progress to change his behaviour. [Mr D's] motivation to change is for himself and for his son, he wants to be a good role model and set a good example for his son.
On 3 August 2008 Mr D commenced a Violent Offending Treatment Programme. A report dated 26 March 2009 stated as follows:
[Mr D's] participation was sporadic and highly dependent on his emotional state. He showed little emotionional [sic] expression and only laughed when inappropriate behaviours or comments were made by others and appeared reluctant to notice others had moved on.
[Mr D] gained an understanding of his attitudes and statements that are more likely to increase the risk of offending (tapes). He identified that he perceives himself as a victim, which appears to be a trigger in his offending behaviour. [Mr D] gained an understanding of his passive behaviour and learnt to assertively express his needs and ideas in logbook entries. He developed a superficial relapse prevention plan as it lacked realistic accommodation and employment opportunities that regularly change. During further exploration, [Mr D] was dismissive when facilitators attempted to guide him and discuss the possible consequences should he constantly change his employment options.
On 6 July 2009 Mr D commenced participation in an Intensive Sex Offenders Treatment Programme. In a report dated 16 March 2010 of Mr David Summertime, psychologist, and Ms Angela Rapsey, social worker, it was stated as follows:
His risk is considered to have been moderated to some degree as a result of his participation in treatment and this includes evidence of an increased level of acceptance of responsibility for his offending and increased responsibility in relation to everyday issues/interactions in his life. He has shown improvement in relation to affect management and general problem solving in the interpersonal context. He claimed that he intends to remain abstinent from further illicit drug use and added that he was motivated to subject himself to urinalysis beyond any regime imposed by Corrective Services because he believes that this is necessary for him to achieve access to his son who he has not seen for a number of years. The changes identified should be viewed with caution and as a part of a progressive process of change.

(g) the person's antecedents and criminal record

Other than the criminal convictions referred to earlier in this decision, Mr D has a number of convictions recorded in the Magistrates Court. These include six convictions for driving a motor vehicle whilst his licence was under suspension and one conviction for breach of a violence restraining order.

(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

This issue was dealt with in the reports of both Dr Hall and Dr Febbo as outlined earlier in this judgment. Both concluded Mr D was of a high risk of reoffending unless an order was made under s 17 of the Act .

the need to protect members of the community from that risk

The need to protect the community from Mr D's propensity to commit violent sexual crimes against women is self evident.

(j) any other relevant matter

Other factors relevant to the application are the following:

Employment

Whilst Mr D was serving a detention sentence in Longmore he commenced an apprenticeship as a boilermaker/welder and following his release he completed the apprenticeship with WesTrack. He has had on and off employment since, interrupted by substance abuse and spending periods in custody. He stated to Dr Febbo that when not in custody he has been employed about 50% of the time.

Relationships

Mr D informed Dr Febbo that his first consensual sexual experience occurred when he was in year 8 at the age of 13 years. This was with a girl Linda who was then 16 years. He has continued to see this girl over the years and continued with an intermittent sexual relationship with her until 2005.
In 1996 when he was 18 years of age he commenced living with a female partner, Priscilla. This relationship terminated in March 2006. By this relationship Mr D has a child who suffers from autism. The relationship of Mr D with his partner became unstable when his partner commenced working as a sex worker. This led to arguments and an escalation in Mr D's substance abuse which will be described later in this decision.
During this relationship Mr D maintained an intermittent sexual relationship with his long‑term friend Linda and also had other relationships, including with sex workers. He is currently corresponding with a woman in the Philippines and has spoken to her on the telephone.

Substance abuse

Mr D commenced drinking heavily at the early age of 13 ‑ 14 years. In his mid‑teens he commenced using cannabis and by the age of 17 years was using it daily. In his early teens Mr D also commenced using methylamphetamines and between the ages of 14 ‑ 15 years was using methylamphetamine daily. Mr D says that he ceased using all substances when his son was born but recommenced at the end of 2002.
In relation to the offences committed on 13 September 2000 Mr D told Dr Febbo that on the day of the offence he had been asked to leave his home, by his partner, as she had a client coming to see her in her occupation as a sex worker. He said that in the context of his partner's prostitution his drug use had increased. On the day of the offence he was using a cocktail of illicit drugs and alcohol. He said that when he came upon his victim he had 'a fantasy of taking it out on her' (page 39, Dr Febbo's report).
In relation to the offence on 14 October 2003 (the cemetery offence) he admitted that he had been arguing with his partner that day and had taken 'speed and mull' prior to committing the offence.

Findings

Having considered all the material presented to me and taking into account the factors listed in s 7(3) of the Act, I conclude that the evidence establishes overwhelmingly that there is an unacceptable risk that, if Mr D were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. Accordingly, I conclude that Mr D is a serious danger to the community for the purpose of s 17.

Detention or supervision order

(a) Nature of discretion

As identified earlier in this decision, the main area of contention on the hearing of the application is whether the court should make an order for continuing detention or a supervision order.
The paramount consideration remains under s 17(2) of the Act, the need to ensure adequate protection of the community. However, the consequences of a continuing detention order are significantly greater for the offender (in this case Mr D) if made as opposed to a supervision order. It is not simply a case that a detention order should be made simply on the basis that detention provides the better protection for the community. A detention order inevitably would always provide better protection. In my opinion a detention order should only be made in circumstances where the court concludes that a supervision order would not provide adequate protection of the community: The State of Western Australia v Latimer [2006] WASC 235 (Murray J); Director of Public Prosecutions (WA) v GTR [2007] WASC 318 (McKechnie J).

(b) Proposal of Mr D if released on a supervision order

Mr D did not give or call any evidence at the hearing of the application. The evidence as to what is proposed by way of supervision comes for a number of written reports and evidence called by the DPP.
Ms Kerry Hoskins, senior community corrections officer, prepared a report dated 15 March 2011 concerning the proposals for the release of Mr D on supervision and also gave evidence on the hearing of the application.
In her written report Ms Hoskins reported that Mr D has engaged with Outreach Services for the purposes of obtaining accommodation. Outreach Services are able to provide approximately six months accommodation for Mr D and thereafter assist him in locating his own housing. Ms Hoskins expresses in her report that her only concern with regard to accommodation is the possible stress stemming from the transition from Mr D's supported accommodation to independent accommodation. She expresses concern that under stress Mr D may revert to problematic coping skills.
In relation to employment Ms Hoskins reports that a long‑time friend of Mr D, who I will simply describe as Keith, will provide full‑time employment. Ms Hoskins contacted Keith who confirmed the offer of full‑time employment. Keith was aware of Mr D's offending history and was willing to be flexible with hours and assist in Mr D complying with supervision requirements. Keith's business is conducted from a property which is occupied by Keith and his wife, Keith's son, a daughter‑in‑law and a 7‑year‑old grandson. Until contacted by Ms Hoskins, Keith's son was unaware of the offer of employment to Mr D and unaware of Mr D's offending history. Keith's son later reported to Ms Hoskins that when he enquired about Mr D's offending history with his father, his father told him that Mr D was convicted of one rape which Keith told his son was a 'set up'. Ms Hoskins expressed concern about the employment arrangement based upon Keith's son's information.
Ms Hoskins reported that Mr D had social support from his sister Tracey who remained supportive although non‑condoning of Mr D's offending. The other support person is Keith who has been a regular visitor to Mr D whilst he has been in custody.
Ms Hoskins suggested that if a supervision order is made then a condition ought to be included that Mr D report to the Sex Offender Management Squad on a regular basis. Evidence was given by Mr Clancy‑Lowe, the State coordinator of the Sex Offender Management Squad with the WA Police. He stated that dangerous sex offenders subject to supervision by the Squad were required to attend the offices of the Squad each month and more often if required. In addition, unannounced visits to the place of residence or workplace of the offender were made. Further the squad uses other operational tools in order to monitor the offender.
Evidence was also given by Ms T A Marley, a principal psychologist who is the manager of the Dangerous Sex Offenders Psychology Unit. Her evidence was that on the making of the order under the Act, Mr D would be assessed as to his treatment needs in order to match his situation.

Ms Marley indicated that there was no difficulty with Mr D receiving individual therapy whether in detention or under a supervision order. Once Mr D comes under the Act his treatment needs will be given priority. In her evidence Ms Marley stated that Mr D had already completed intensive treatment programmes in prison but once he came under the Act he would be given individual therapy programmes.

(c) Psychiatrists' opinions

It is clear from the reports and evidence of Dr Hall and Dr Febbo that they both assess Mr D of being a high risk of reoffending. It is clear on the evidence before me that the main factors which create this risk are as follows:
(a)Mr D's sexual deviant tendencies;
(b)his personality traits;
(c)his substance abuse problems;
(d)other environmental factors which may create instability and/or stress in his life.
In relation to Mr D's sexual deviancy disorder, both Dr Hall and Dr Febbo have indicated that Mr D requires intensive individual psychotherapy treatment.
Dr Hall expressed a view that Mr D was not yet ready to be released into the community. Dr Hall stated that he believed that Mr D was genuine in his desire to not offend but his deviant sexual interests had not as yet been addressed and he had underlying personality traits that make it difficult for him to modify his attitudes. Also he concluded based upon Mr D's history and his interviews with Mr D that Mr D was not always truthful. Accordingly, Mr D was unlikely to be reliable to the extent that community supervision required him to self‑report on his situation with counsellors. Dr Hall concluded:
Regrettably I find it hard to imagine how the persistent and unaddressed issues which contribute to his risk of reoffending can be managed in an effectively and timely manner in a community setting where there is access to substances and other distractions and stressful stimuli and its - although these things could possibly be delivered in a community setting, I don't believe that he has come far enough yet that the risk is manageable immediately. It would take some time to gain some ground in those thus far unaddressed areas.
Dr Febbo stated that the safest option would be for Mr D to commence to have therapy in detention, although he acknowledged that treatment in the context of a supervision order is potentially workable. Dr Febbo in his evidence said he believed there was a significant degree of doubt as to whether sufficient objective information could be obtained to adequately supervise Mr D in the community. He believed that Mr D's own self‑reporting was likely to be unreliable. Notwithstanding this Dr Febbo was of the view that Mr D might be managed in community providing Mr D received regular psychotherapy and substance abuse counselling, stayed on antidepressants, there was general stability in his arrangements in the community, his circumstances were monitored objectively and he remained under intense supervision.

(d) Other factors

A relevant consideration in relation to the question of the extent of Mr D's sexual deviant tendencies is that he is currently on medication for depression. It is well recognised that depression medication causes a reduction in libido.
Another factor is that Mr D at least appears to have made some progress into recognising his sexual disorder. He described to Dr Febbo recently seeing a violent sex scene as a part of an in‑house video at the prison. Mr D said he became aroused but turned off the video as he is now careful of what he is viewing.

Conclusion

In deciding whether a continuing detention order or a supervision order should be made it is important to take into account the nature of these orders. A continuing detention order does not necessarily mean that Mr D will be held in custody indefinitely. Pursuant to s 29 of the Act a continuing detention order is reviewable annually. Also pursuant to s 30 of the Act an offender can, with leave of the court, seek a review of a continuing detention order at any time if there are exceptional circumstances.
A supervision order can be for such period as specified by the court and requires the offender to be subject to supervision of a community corrections officer throughout the order. The order can contain other terms that the court thinks appropriate to ensure adequate protection of the community or for the rehabilitation, care or treatment of the offender.
Having considered all the material before me, I conclude that at this stage a continuing detention order is the appropriate order to ensure adequate protection of the community. I am not satisfied that at this point of time a community supervision order would adequately protect the community.
Mr D's history of offending, the psychiatric reports and evidence I have received indicate that Mr D is a high risk to the community. Since the age of 15 years he has committed offences against 13 separate females. On seven separate occasions Mr D used a weapon or replica weapon to threaten his victim into submission. Great care needs to be taken to ensure that another woman is not the subject of such an attack which is likely to have long‑term and severe psychological consequences.
Although Mr D has made progress by completing an Intensive Sex Offenders Programme whilst in prison, an assessment of the extent of that progress must be guarded in view of his lack of reliability when self‑reporting. I note that in the report of Ms Denise Cull dated 29 December 1994, referred to earlier in this decision, that similar progress was noted but subsequently Mr D committed the further offences on 13 September 2000 and 14 October 2003 after being released from prison.
Before Mr D is released into the community I believe that he requires individual psychotherapy in prison to address his sexual deviant tendencies. Until this occurs I conclude the risk to the community is too high.
I have other concerns about releasing Mr D into the community at this point of time. I believe that the current employment arrangements need to be more secure. Although Keith has agreed to provide employment I am concerned that the working environment is also a place of residence which contains two females. I believe at the very least there will need to be arrangements made to ensure that these females are not at any time exposed to the risk of reoffending by Mr D.

Orders

The order made is that Mr D is to be detained in custody for an indefinite term for control, care and treatment. Of course under the provision of the Act this order will be reviewed as soon as practicable after the end of a period of 12 months.