Director of Public Prosecutions (WA) v TJD [No 2]
[2012] WASC 142
•23 APRIL 2012
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- TJD [No 2] [2012] WASC 142
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 142 | |
| Case No: | MCS:2/2011 | 23 APRIL 2012 | |
| Coram: | McKECHNIE J | 23/04/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Supervision Order | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) TJD |
Catchwords: | Dangerous sex offender Review Whether supervision order No new principles Turns on own facts |
Legislation: | Dangerous Sexual Offender Act 2006 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
TJD
Respondent
Catchwords:
Dangerous sex offender - Review - Whether supervision order - No new principles - Turns on own facts
Legislation:
Dangerous Sexual Offender Act 2006 (WA)
Result:
Supervision Order
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr D Dempster
Respondent : Mr D J McKenzie
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : David McKenzie
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 McKECHNIE J: On 31 March 2011 TJD was declared to be a dangerous sex offender and detained in custody for control, care and treatment. At a directions hearing to set the date for the first annual review, which this is, I ordered that a report be obtained from two psychiatrists. One has been received from Dr Febbo who provided a report on the original application and the other report from Dr Wojnarowska. In Dr Febbo's opinion:
[TJD] remains at high risk of committing a serious sexual offence if not subject to a Continuing Detention or Supervision Order.
2 Dr Wojnarowska conducted a risk assessment using STATIC-99, PCL-R and RSVP, concluding:
[TJD's] risk of reoffending remains in the high category.
3 As I will shortly detail, TJD has worked hard to address some of the underlying causes of his offending behaviour.
4 That work is significant. However, in the light of the opinion of the two psychiatrists, together with the matters referred to by Sleight C in 2011, I conclude that TJD remains a serious danger to the community.
Supervision Order is appropriate
5 Faced with the choice between a detention or a supervision order, the paramount consideration is the need to ensure adequate protection for the community. I am persuaded that the community can be adequately protected if TJD is released on supervision for a period with conditions that include a condition mandating his continued counselling.
6 One of the things that persuades me is the fact that TJD has voluntarily sought to reduce his testosterone levels and has been taking anti-libidinal medication Androcur, to assist him to manage deviant sexual fantasies by diminishing sexual arousal. He has also participated in some confronting weekly counselling sessions with Mr Summerton.
7 A review by psychologist Ms Cinzia Zuin concludes:
[TJD] appears to have made sufficient progress over the past 8 months towards gaining a better understanding about deviant sexual fantasies, the thoughts and feelings that precede these fantasies and how he has created opportunities to offend. [TJD] appears to be far more candid about his tendency towards deception, exaggeration and embellishment of situations in the past and he appears to be accepting full responsibility for his offending behaviour. This reflects a significant shift in attitude but it is
(Page 4)
- noted that progress has come with much challenging and confrontation through counselling. It must also be noted that any shift in thinking processes is based on self-report which cannot be measured with any degree of certainty. Overall however, [TJD's] attitude appears to be notably different.
8 Dr Febbo noted:
In my opinion, [TJD] has made progress in the second domain, psychological adjustment, and, in particular, in factor 8 problems with self-awareness. [TJD] has gained an increased awareness of issues related to his offending including how environmental stimuli and stressors, together with inappropriate sexual fantasies, may be related to offending. He was able to describe how difficulties in interpersonal relationships, the development of anger, and then inappropriate sexual fantasies come together and place him at risk of sexual offending.
In relation to the third domain, mental disorder, I noted that there had been some change in relation to sexual deviance. It is likely that the reported decrease in relation to his inappropriate sexual fantasies have been a result of the individual psychotherapeutic input and the anti-libidinal medication. He gave a history of a marked reduction in sexual interest.
In conclusion, it is my view that, although [TJD] remains at high risk of committing a serious sexual offence if not subject to a continuing Detention or Supervision Order, his level of risk is now such that it can be managed in the community in the context of a Supervision Order.
9 Dr Wojnarowska's opinion under the heading Scenario Planning:
[TJD] is likely to re-offend in circumstances where he would not be able to regulate his emotions when under stress. This could occur at any time after being discharged from custody. Warning signs would include relationship stress, unemployment, substance abuse and use of pornography. He is likely to re-offend in a similar manner against a stranger adult female either by sexual or physical assault. Likely harm to victims could be psychological and physical and could be severe.
Opinion
[TJD's] risk of re-offending remains in the high category, however he has made significant gains predominantly in the psychological domain which appeared to ameliorate his risk of re-offending to the point that management in the community could be considered.
10 Dr Wojnarowska and Dr Febbo both support continuous counselling. Dr Febbo supports continuation of the anti-libidinal medication. Both Dr Febbo and Dr Wojnarowska consider that a curfew initially would make it less likely for TJD to come into contact with a female.
(Page 5)
11 A community supervision assessment concludes:
[TJD] has completed programs within the custodial environment to address his sexual offending behaviour and while the reports indicate he has made some treatment gains such as his understanding of the circumstances to his offending behaviour in the past, the influence of his past volatile relationship and the apparent neglect by his parents during his childhood, it is evident that [TJD] has ongoing treatment needs.
[TJD's] social supports and accommodation are major influencing and positive factors for him at this stage, with viable accommodation and community supports such as Outreach, his sister and his prospective employer, upon his release. However it appears that [TJD's] credibility in disclosing information has been an ongoing issue in determining the truth in his account of events in his life.
12 A review by Dr Fitzclarence on 18 April 2012 found:
He is travelling very well on Androcur 50mg daily. He had some side effects initially but these have settled down. His last testosterone was 2.2. [TJD] is keen to stay on the Androcur regardless of whether it is made a condition of his supervision order or not.
He feels that it helps him. He reports no libido, no sexual thoughts and no masturbation. He reports that he feels safer on the medication.
This is to be continued.
He is aware that Dr Kirkman will care for him in the community.
13 In my view, the evidence points to the fact that within the meaning of the Dangerous Sexual Offenders Act while [TJD] remains a dangerous sexual offender, nevertheless his risk can be adequately managed within the community and the community will be sufficiently protected if he is released on close supervision. The parties have put forward a supervision order which I will accept subject to one change; namely, Order 3, the first sentence of which should now read 'be subject to a curfew for 12 months'. That is the only change I make.
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