Director of Public Prosecutions (WA) v TJD [No 4]
[2014] WASC 71
•11 MARCH 2014
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- TJD [No 4] [2014] WASC 71
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 71 | |
| Case No: | MCS:2/2011 | 6 & 11 MARCH 2014 | |
| Coram: | COMMISSIONER SLEIGHT | 11/03/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Continuing detention order rescinded Supervision order | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) TJD |
Catchwords: | Dangerous sex offender Review Whether a supervision order should be made Turns on its own facts |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA) |
Case References: | Director of Public Prosecutions (WA) v TJD [2011] WASC 83 Director of Public Prosecutions (WA) v TJD [No 2] [2012] WASC 142 Director of Public Prosecutions (WA) v TJD [No 3] [2013] WASC 43 Director of Public Prosecutions (WA) v Williams (2007) 35 WAR 297; [2007] WASCA 206 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
TJD
Respondent
Catchwords:
Dangerous sex offender - Review - Whether a supervision order should be made - Turns on its own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Continuing detention order rescinded
Supervision order
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 TJD [2011] WASC 83
Director of Public Prosecutions (WA) v TJD [No 2] [2012] WASC 142
Director of Public Prosecutions (WA) v TJD [No 3] [2013] WASC 43
Director of Public Prosecutions (WA) v Williams (2007) 35 WAR 297; [2007] WASCA 206
1 COMMISSIONER SLEIGHT: The Dangerous Sexual Offenders Act 2006 (WA) (the Act) provides a procedure whereby a serious sex offender can be detained for an indefinite term to protect the community. Where such an order is made detaining an offender for an indefinite term, the order is reviewable as soon as practicable after the end of each year. This decision concerns such a review in relation to Mr TJD, the respondent, who was detained for an indefinite term pursuant to an order of Corboy J on 18 February 2013.
Background
2 The history of orders made in relation to Mr TJD is as follows.
3 On 31 March 2011 I made a finding that Mr TJD was a serious danger to the community and made an order that Mr TJD be detained in custody for an indefinite term: Director of Public Prosecutions (WA) v TJD [2011] WASC 83. In that decision I set out to the relevant legal principles, the history of Mr TJD's offending, a summary of the evidence and my reasons for concluding that Mr TJD was a serious danger to the community and that it was appropriate to make an order that he be detained in custody for an indefinite term for his control, care or treatment.
4 The Act provides an alternative method of dealing with an offender who is found to be a serious danger to the community. That alternative is in the form of a supervision order, releasing the offender into the community subject to conditions that the court considers appropriate (s 17(1)(b) of the Act).
5 On an annual review, the court must rescind a continuing detention order if it does not find that the person remains a serious danger to the community. On the other hand, if the court finds that the person remains a serious danger to the community, the court may decline to rescind the continuing detention order or rescind the order and replace it with a supervision order (s 33(2) of the Act).
6 On 23 April 2012 McKechnie J conducted an annual review of the continuing detention order made by me: Director of Public Prosecutions (WA) v TJD[No 2] [2012] WASC 142.
7 His Honour concluded that Mr TJD remained a dangerous sexual offender (ie, a serious danger to the community) but nevertheless his risk could be adequately managed within the community. His Honour made a supervision order for a period of 10 years subject to conditions: Director of Public Prosecutions (WA) v TJD[No 2].
8 The supervision order included the following conditions:
(a) Mr TJD was to 'engage, including engage in one on one counselling, with any psychiatrist, psychologist, mentor, support service, support person and/or accommodation provider nominated by the CCO [Community Corrections Officer] as directed by the CCO' (condition 9);
(b) Mr TJD was to 'undergo medical testing or treatment, including anti-libidinal treatment, as directed by the CCO in consultation with any doctor, psychiatrist or endocrinologist' (condition 11);
(c) Mr TJD was not to 'possess, consume or use any illicit drugs or substances including, but not limited to, cannabis' (condition 28);
(d) Mr TJD was to 'attend for, and submit to, urinalysis or other testing for illicit drugs or substances as directed by the CCO or by a police officer' (condition 29);
(e) Mr TJD was not to have 'contact with any child under the age of 17 years, whether such contact is in person, in writing, by telephone or by electronic means, unless the contact is authorised either by a Court Order or in advance by the CCO, such contact being supervised at all times by an adult approved in advance by the CCO' (condition 31);
(f) Mr TJD was to 'provide details of any contact with a child under the age of 17 years both to his CCO and to police upon the next occasion he reports to that person or agency' (condition 33);
(g) Mr TJD was to 'maintain a daily diary of his movements and activities and present the diary to the CCO or a police officer upon request' (condition 40).
9 In reaching a decision to place Mr TJD on a supervision order, McKechnie J was influenced by the reports of two psychiatrist (Dr Febbo and Dr Wojnarowska) and a psychologist, Ms Cinza Zuin, all of whom expressed the opinion that Mr TJD had made significant progress while subject to the continuing detention order by using anti-libidinal medication and engaging in psychological counselling. The reports suggested Mr TJD was more aware of the inappropriate nature of his deviant sexual fantasies and had a greater self-awareness of the connection between difficulties in interpersonal relationships, anger and deviant sexual fantasies as a precursor to offending.
10 A person who is subject to a supervision order, who without reasonable excuse contravenes a requirement of such an order, commits an offence (s 40A(1) of the Act). Further, the Director of Public Prosecutions (the DPP) may apply to the Supreme Court in relation to a contravention of a supervision order seeking cancellation of the supervision order (s 22 and s 23 of the Act). The Supreme Court, if it is satisfied that a person, who is subject to a supervision order, has contravened a condition of a supervision order may order that the person be detained in custody for an indefinite term if it is satisfied there is an unacceptable risk that if an order is not made, the person would commit a serious sexual offence (s 23(1)(b) of the Act).
11 Mr TJD was charged initially with two offences of breaching the supervision order alleging that in early July 2012 he breached conditions 31 and 33 (that is, that he had contact with a child under the age of 17 and failed to provide details of this to his CCO and to the police). Mr TJD pleaded guilty to these charges and was fined in the Magistrates Court a global fine of $1,500. The charges related to contact with a grandson of a female companion.
12 Mr TJD was then charged with a further five offences of contravening the supervision order. In the meantime the DPP had applied to the Supreme Court in relation to a contravention of the supervision order. Mr TJD was committed to appear before the Supreme Court on the five additional charges. The five charges were as follows:
(a) failing to undergo anti-libidinal medical treatment, as directed by a CCO, in consultation with a doctor (charge 1);
(b) failing to engage in one on one counselling with a psychologist, as directed by a CCO (charge 2);
(c) failing to attend for urinalysis testing for illicit drugs, as directed by a CCO (charge 3);
(d) using an illicit drug, namely Tetrahydrocannabinol (cannabis) (charge 4);
(e) failing to maintain a daily diary and present it to a CCO upon request (charge 5).
13 The charges were heard by his Honour Justice Corboy, who also heard the application by the DPP in relation to a contravention of the supervision order seeking cancellation of the supervision order: Director of Public Prosecutions (WA) v TJD [No 3] [2013] WASC 43. Mr TJD pleaded guilty to charges 1, 3 and 4 and, following a hearing, was acquitted of charge 2 and found guilty of charge 5. In relation to the DPP's application his Honour found that within a relatively short time after the supervision order had been made, Mr TJD had ceased using his anti-libidinal medications and lied about the matter when challenged [85]. Further, that there had been a significant change in Mr TJD's participation in counselling which suggested that Mr TJD lacked insight into the causes of his offending and the need for him to actively and continuously take steps to minimise the risk of reoffending [86]. Corboy J concluded that the risk of Mr TJD committing a serious sexual offence if he was not detained in detention was unacceptable and accordingly made the order that Mr TJD be detained in custody for an indefinite term [89].
Current review.
14 The first issue to be considered on this annual review is whether Mr TJD remains a serious danger to the community. This requires a consideration of the criteria set out in s 7 of the Act. The relevant provisions and principles were summarised in my decision in Director of Public Prosecutions (WA) v TJD. It is unnecessary that I repeat them.
15 Section 32 of the Act provides that unless the court orders otherwise on an annual review the offender is to be examined by two psychiatrists for the purposes of preparing reports to the court. On 18 December 2013 McKechnie J ordered that only one report be provided to the court and that was to be a report by Dr Mark Hall, psychiatrist, after he had examined Mr TJD.
16 It is not disputed in this matter that Mr TJD remains a serious danger to the community. Notwithstanding this concession, it is still necessary for me to examine the evidence and make that finding.
17 I have considered the following material:
1. Three books of material dated 16 March 2011 that were tendered for the purpose of the original application before me that Mr TJD be found a serious danger to the community and be detained in custody for an indefinite term.
2. A book of material dated 16 April 2012 which was tendered for the purpose of the first annual review conducted by McKechnie J.
3. A book of material dated 12 November 2012 which was tendered to the purpose of the supervision order contravention hearing before Corboy J.
4. A book of material dated 25 February 2014 for the purposes of the current annual review (which includes a report of Dr Hall dated 20 February 2014).
18 I also take into account the findings made in each of the decisions earlier referred to: Director of Public Prosecutions (WA) v TJD; Director of Public Prosecutions (WA) v TJD [No 2]; Director of Public Prosecutions (WA) v TJD [No 3].
19 I conclude from the material before me that Mr TJD remains a serious danger to the community. In reaching this conclusion I have taken into account the following:
(a) his history of past offending as summarised by me in Director of Public Prosecutions (WA) v TJD [13].
(b) Dr Hall in his most recent report dated 20 February 2014 concludes that Mr TJD remains at high risk of reoffending sexually if not subject to a community supervision order or continuing detention order. Dr Hall identify the essence of the risk lies in the following factors:
• Mr TJD's past history of persistent sexual offending against lone females previously unknown to him and involving the use of weapons and threats to kill.
• Mr TJD's pattern of deviant sexual arousal, albeit currently suppressed by anti-libidinal medication.
• Mr TJD's antisocial personality disorder, with prominent psychopathic traits.
• Mr TJD's a high likelihood of relapse to substance abuse.
• Mr TJD's negative attitudes and behaviours, notably entrenched dishonesty and difficulty accepting personal responsibility.
• Mr TJD's instability in intimate relationships.
• Mr TJD' limited coping skills when under stress.
(c) Dr Hall in his report dated the 20 February 2014 stated that in his opinion a future offence would most likely occur in the context of relationship conflict and in the use of substances including alcohol. Dr Hall estimated the offending would involve violence, with a chance of escalation to serious life-threatening violence. Dr Hall suggested that the likely psychological harm to the victim in the event of an offence would be severe.
Indefinite detention or supervision order
20 In deciding whether to decline to rescind a continuing detention order, or to make a supervision order, the court should adopt the least restrictive alternative which is compatible with the protection of the public. However, the paramount consideration is the need to ensure the adequate protection of the public: s 33(3) of the Act; Director of Public Prosecutions (WA) v Williams (2007) 35 WAR 297; [2007] WASCA 206 [79].
21 The DPP does not oppose the continuing detention order made by Corboy J being rescinded, and replaced with a supervision order subject to certain conditions. The attitude of the DPP is dependent on the following conditions recommended by Dr Hall being included in the order:
(a) the order be for a duration of 10 years;
(b) a requirement to continue psychotherapy;
(c) a requirement of ongoing treatment with anti-libidinal medication;
(d) a requirement of random urinalysis and breath analysis;
(e) a requirement of a night-time curfew;
(f) a requirement to be GPS monitored; and
(g) a requirement that there be no unsupervised access to children.
22 Subject to these and other strict conditions, the DPP in written submissions suggests that the community can be adequately protected by a supervision order.
23 Dr Hall gave evidence on 6 March 2014 that providing Mr TJD complied with the order for a period of 10 years it was likely the risk to the community would be reduced from a serious risk but in light of Mr TJD's history and psychological traits he did not believe the risk could ever be completely removed.
24 The starting point in considering whether the continuing detention order should be rescinded and replaced with a supervision order are the factors which led to my decision that Mr TJD remains a serious danger to the community. It is clear from this material that Mr TJD remains a high risk of reoffending and a supervision order should only be made if I am satisfied the conditions set will adequately protect the community.
25 A number of distinct issues have emerged from the material before me:
(a) Dr Hall in his report states that the capacity of Mr TJD to make progress in reducing the risk factors earlier identified is limited in the custodial environment, thereby rendering that environment counter-productive to his rehabilitation. Similar conclusions were reached by Mr Summerton in a report dated 24 October 2012 and in a Dangerous Sex Offender Treatment Progress Report of Ms Chantelle Place dated 14 February 2014. Ms Place in her report states as follows:
It is unlikely that [TJD] will make any substantial therapeutic advances in custody as he would not be exposed to opportunities to utilise his risk management strategies.
(b) A major problem with Mr TJD's management in the community is his dishonesty in reporting. Mr Summerton in a report dated 24 October 2012 stated as follows:
His level of disclosure and honesty is a central factor in the challenges facing all parties involved in his management in the community. His degree of dishonesty has at times seriously undermined the capacity to effectively monitor his behaviour and risk, and consequently assist him to cope appropriately. This pattern of behaviour is long established and well documented, but having been identified as a critical issue prior to release has escalated as opposed to being managed.
- This dishonesty issue is recognised in all of the reports submitted by the Dangerous Sex Offender Psychology Team and Dr Hall in his report of 20 February 2014.
As recognised by Corboy J in Director of Public Prosecutions (WA) v TJD [No 3] [87], the relationship between Mr Summerton and Mr TJD had completely broken down and the way forward was for the appointment of a new psychologist. The breakdown of the relationship appears to be principally over the issue of dishonesty and in particular Mr Summerton being sceptical of complaints by Mr TJD that he had been sexually abused as a child and other alleged incidents of lying.
(c) Another issue of concern is an apparent inability on the part of Mr TJD to form a stable relationship with a partner. As identified by Dr Hall in his report of 20 February 2014, a future offence is most likely to occur in the context of relationship conflict. Mr TJD has had a number of relationships in his life. He had a former long-term partner, Ms P, the relationship commencing when he was aged 18 and she was 15. The relationship lasted over a period of 11 1/2 years and was productive of a son currently aged 12, who is in the care of Ms P. Prior to his release Mr TJD had been writing to a Filipino woman living in Singapore with the intention of commencing a physical relationship with her but this did not eventuate. After his release pursuant to the supervision order made by McKechnie J, Mr TJD had a number of relationships and at the time of the cancellation of the supervision order he was in a relationship with a Ms TL. A Community Supervision Assessment Report dated 21 February 2014 suggests that Ms TL has her own issues. She has a history of substance abuse and is currently on a methadone program. Also of concern is that Ms TL was alleged to have contraband material hidden in her shoe when she was attending Hakea prison to visit Mr TJD and was banned from visiting him for three months.
(d) Another issue concerning Mr TJD relates to unreasonable expectations that he will be able to obtain access to his son. According to the Community Supervision Assessment report of the 21 February 2014 allegations have been made against Mr TJD that he had engaged in sexually inappropriate behaviour with his son. Because of these allegations and Mr TJD's past history of sexual offending, obtaining access is likely to be very difficult. This is relevant because Dr Hall identifies as one of the risk factors the limited coping skills of Mr TJD when under stress.
(e) Another issue of concern is Mr TJD's substance abuse. The report of Ms Place dated 14 February 2014 identifies an ambivalent attitude to cannabis by Mr TJD who does not believe that his cannabis use is problematic or a risk factor of reoffending. One of the breaches of the previous supervision order was the use of cannabis. Mr TJD's explanation to Dr Hall was that he had been prevented from seeing his son and was not coping.
Progress
26 Notwithstanding the issues listed above, there has been progress since the cancellation of the previous supervision order. Since returning to custody Mr TJD has undertaken psychological counselling with Ms Tara Yewers of the Dangerous Sexual Offenders Psychological Team. The report of Ms Place dated 14 February 2014 indicates that a good therapeutic relationship has been established between Ms Yewers and Mr TJD. The report states that Mr TJD has made some gains in addressing his tendency to be untruthful. The problem is recognised as well entrenched and Mr TJD will need continuing counselling to address this issue.
27 The report also suggests that Mr TJD has made some gains in a tendency to externalise responsibility for his own behaviour on others and has articulated a good understanding of his risk factors and risk management strategies.
28 In relation to Mr TJD's cannabis use he has acknowledged that under the previous supervision order he should not have used cannabis and that he should have sought help to better cope with the issues confronting him.
29 Ms Yewers has continued to provide psychological therapy focusing on addressing Mr TJD's deviant sexual fantasies. Also since cancellation of the supervision order, Mr TJD has reinstated regular taking of anti-libidinal medication. According to the Community Supervision Assessment report of 21 February 2014, Mr TJD has expressed a willingness to take the medication on a daily basis whilst subject to a supervision order and to submit himself to regular blood tests to ensure compliance.
30 The Community Supervision Assessment Report of 21 February 2014 also indicates that if Mr TJD is released on a supervision order then accommodation has been arranged and ongoing community support will be provided through Outcare Inc. Also Mr TJD's risk factors, including illicit substance use, stress within intimate relationships, deviant sexual fantasies and movements too high risk areas will be monitored on a regular basis through the utilisation of frequent and random urinalysis, regular supervision sessions and use of GPS monitoring. Also ongoing psychological counselling with a psychologist will be maintained to ensure that risk factors are monitored on a regular basis.
31 Of course it is relevant that Mr TJD had been previously released on a supervision order but almost immediately significantly breached the terms of the order leading to its cancellation. However, from a summary of Mr TJD's interactions with health services in prison after cancellation of the supervision order, it appears that Mr TJD was 'shattered' by the reinstatement of the indefinite custody order and had suicidal ideation. It appears, if nothing else, the cancellation of the previous supervision order has brought home to Mr TJD the importance of complying with the conditions set by the court.
Conclusion
32 On the basis of the material before me I agree with the submission presented by the DPP that a supervision order with strict conditions as recommended by Dr Hall provides adequate protection of the community. Although Mr TJD is a serious sex offender, the level of supervision, monitoring and treatment is such that the risk factors identified earlier in this decision are substantially controlled and minimised. Further, the level of the supervision and monitoring is such that the opportunity to reoffend is substantially reduced.
33 Finally, I take into account that Mr TJD has learned a salutary lesson by his previous breach of the supervision order made by McKechnie J and will understand that if he breaches any of the conditions set the likely outcome is that he will be placed back into custody indefinitely.
34 Accordingly I will make an order rescinding the order of Corboy J that Mr TJD be detained in custody for an indefinite term and I will make a supervision order for a period of 10 years so that when Mr TJD is not in custody during this period he will be subject to the conditions which will form a part of the order. I am satisfied that the period of 10 years is appropriate. This is the period recommended by Dr Hall. I am not aware of this court ever making a supervision order longer than 10 years. The conditions that will be included as a part of the order have been agreed between the parties and include the conditions recommended by Dr Hall.
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