Director of Public Prosecutions (WA) v W [No 2]
[2015] WASC 283
•23 JULY 2015
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- W [No 2] [2015] WASC 283
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 283 | |
| Case No: | DSO:3/2014 | 23 JULY 2015 | |
| Coram: | SIMMONDS J | 23/07/15 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Continuing detention order rescinded Supervision order made | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) W |
Catchwords: | Dangerous sexual offender DSO review Continuing detention order rescinded Supervision order made under s 33(2)(6) |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA) |
Case References: | Director of Public Prosecutions (WA) v Comeagain [No 5] [2014] WASC 214 Director of Public Prosecutions (WA) v W [2014] WASC 257 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
W
Respondent
Catchwords:
Dangerous sexual offender - DSO review - Continuing detention order rescinded - Supervision order made under s 33(2)(6)
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Continuing detention order rescinded
Supervision order made
Category: B
Representation:
Counsel:
Applicant : Ms K Robinson
Respondent : Mr D J McKenzie
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : David McKenzie Legal Pty Ltd
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Comeagain [No 5] [2014] WASC 214
Director of Public Prosecutions (WA) v W [2014] WASC 257
1 SIMMONDS J: This is my decision in relation to the matters raised at the hearing yesterday. It is my decision on an application for annual review. I call it the present review. It is of W's detention under a continuing detention order. I call that the continuing detention order. It is made under Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), s 17(1)(a). I made the continuing detention order on 22 July 2014 for the reasons in Director of Public Prosecutions (WA) v W [2014] WASC 257.
2 The application for the present review is made by the DPP, as required by DSO Act s 29. The present review is the first annual review, under s 29, of W's detention under the continuing detention order.
3 Directions for the present hearing under DSO Act s 33 have resulted in the production of a book of materials. This became exhibit 1 in the hearing on the present review.
4 The actions the court must take in the present review are those called for in DSO Act s 33:
Review of detention under continuing detention order
(1) When the court, on an application made under section 29 or 30, reviews a person's detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
(2) The court may, if it finds that the person subject to the order remains a serious danger to the community, either -
(a) expressly decline to rescind the order; or
(b) rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.
(3) In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.
5 At the hearing on the present review, counsel for W confirmed that he conceded he 'remains' a 'serious danger to the community' within DSO Act s 7 for the purposes of s 33(2).
6 Counsel for the DPP confirmed the DPP did not oppose the rescission of the continuing detention order and a supervision order being made under s 33(2)(b) in the terms of the proposed supervision order which was proffered by the DPP at the hearing, and became exhibit 2. Counsel for W confirmed he did not object to any of the terms in exhibit 2. However, it is important I confirm I made my own assessments for the purposes of the decisions called for by DSO Act s 33.
7 On the evidence presented at the hearing and the submissions of counsel, I can be relatively brief in the reasons to be given. Those are reasons for making orders under s 33(2)(b) with the supervision order in terms of exhibit 2 and with the suppression order I will describe.
Background
8 Director of Public Prosecutions (WA) v W, the way I will refer to my previous decision, sets out W's personal and offending history including his sexual offending history in [33] - [58]. My decision also describes the extent of his participation in criminogenic programmes in prison and other prison history to the time of my decision: see [60] and [61]. I do not consider I need to repeat or summarise those descriptions. I will return to particular matters from my decision in Director of Public Prosecutions (WA) v W in due course where they are of particular relevance to my decision in the present review.
Applicable law
9 I recently had occasion to review the provisions of the DSO Act that are relevant, and summarise the principles applicable to the two matters referred to in DSO Act s 33: see Director of Public Prosecutions (WA) v Comeagain [No 5] [2014] WASC 214 [26], [27] and [34] - [42] with respect to the matter whether a court can be satisfied a person 'remains' a 'serious danger to the community', as that last phrase appears in s 7(1), read with s 7(2) and s 7(3); and see Director of Public Prosecution (WA) v Comeagain [No 5] [4], [28] - [30], [199] and [200] with respect to the matter of the court choosing between making an order under s 33(2)(a) or under s 33(2)(b). I consider those provisions and principles to be sufficiently well understood for the purposes of a hearing like this one that they do not require repetition or summary. I did not understand any aspect of them to be in issue before me.
Hearing and the present review
10 At the hearing, apart from exhibits 1 and 2 evidence was in the form of the testimony of three witnesses called by the DPP. No evidence was adduced for W. All three witnesses called by the DPP have provided reports appearing in exhibit 1, and all three witnesses testified to their reports.
11 The first witness appearing was Dr Mark Hall, a consultant psychiatrist. He was one of the two psychiatrists who prepared reports for and testified as described in Director of Public Prosecutions (WA) v W. His report, for the purposes of the present review, was exhibit 1.6. He had interviewed W, reviewed materials and met with other persons in relation to W as described in Dr Hall's report, exhibit 1.6, par 4. Those persons included Mr David Summerton, a psychologist from Forensic Psychological Service within the Department of Corrective Service, and Ms Vanessa Rankin. I reach Ms Rankin shortly..
12 Mr Summerton is a psychologist with whom W had been participating in one-to-one sessions over the year since the continuing detention order was made. That participation assumed considerable significance in the present review, as will be seen.
13 The second witness appearing was Ms Vanessa Rankin, a senior clinical psychologist employed by the Forensic Psychological Service within the Department of Corrective Services. Her report was exhibit 1.5. She had interviewed W and perused information supplied to her, and consulted with Mr Summerton as described in Ms Rankin's report, exhibit 1.7, par 5.
14 The third witness appearing was Ms Jane Henshall. Her report entitled 'Community Supervision Assessment' was exhibit 1.7. Ms Henshall is the Senior Community Corrections Officer in the Public Protection Unit in the Department of Corrective Services. She had contact with W, reviewed materials including the reports of Dr Hall and Ms Rankin, now appearing in exhibit 1, and had had discussions with both as well as with Mr Summerton and with other persons and entities as described in Ms Henshall's report exhibit 1.5.
Application: Does W remain a serious danger to the community within DSO Act s 7
15 I find W remains a serious danger to the community in accordance with the standard of proof in DSO Act s 7(2) for the following reasons. I do so drawing on the evidence of Dr Hall. Dr Hall's opinion, in summary, is expressed in his report, exhibit 1.6, par 35:
It is my opinion that [W] remains at high risk of committing a serious sexual offence if not subject to either a continuing detention or supervision order. Essentially, [W] is a paedophilic sexual offender in whom denial has previously inhibited his participation in any treatment, and for whom any future offending would most likely occur in the context of intimate or close social relationships.
16 The most likely reoffending scenario is described in Dr Hall's report in terms very similar to those in his evidence which I described in Director of Public Prosecutions (WA) v W [87]. Those terms in exhibit 1.6, par 34 are as follow:
The most likely reoffending scenario, were [W] to commit another serious sexual offence, would involve sexual contact with prepubertal or pubertal male or female children to whom he has established some access and has been able to groom via a position of trust. There is very low potential for the sexual violence to escalate to serious or life threatening violence. The imminence of any such reoffending would likely depend on how soon [W] enters a new relationship, if at all.
17 Dr Hall confirmed in his testimony before me and in the present review it was unlikely there would be reoffending of a more 'brazen' kind such as offending involving persons with whom W had had no prior dealing. These assessments are described in Dr Hall's report as informed by his use of the RSVP tool. see exhibit 1.6, pars 31 - 33. This was the tool he also used, as I indicated, in Director of Public Prosecutions (WA) v W [66] and [71] - [84]. There was nothing inconsistent with Dr Hall's opinion in his evidence in the present review in any of the materials before me from or in the testimony of Mr Rankin or Ms Henshall or any of the other materials in exhibit 1.
18 Having arrived at that finding I now must make the choice between the options in DSO Act s 33(2)(a) and s 33(2)(b).
Application: What choice should be made between those two provisions
19 I would make an order under DSO Act s 33(2)(b), that is to say orders in the terms of exhibit 2, as well as another order for the following reasons.
20 The evidence of Dr Hall and of Ms Rankin describes W's participation in one-to-one sessions with Mr Summerton over the year since I made the continuing detention order as having produced significant improvement in the ability to monitor W and to assist him to self-manage his exposure to high risk situations: see exhibit 1.6, par 36 for Dr Hall; and exhibit 1.5, par 26 for Ms Rankin.
21 Early in that participation Mr Summerton had concluded W was unsuitable to participate in the Sexual Offending Deniers Programme (SODP). In Director of Public Prosecutions (WA) v W, I described the importance attached to W's doing an SODP in the evidence from a number of sources before me: see [89], [116] and [152] in particular. Dr Hall's evidence in the present review was that:
However, the material covered in the sessions with Mr Summerton has been reasonably equivalent to that which would be covered in a Sex Offender Deniers Program (exhibit 1.6, par 26).
22 There is similar evidence from Ms Rankin: see exhibit 1.5, par 5.
23 The greatest detail in the evidence before me concerning the nature, quality and effects of W's participation in the exchanges with Mr Summerton is in the evidence of Ms Rankin: see, particularly, the material in exhibit 1.5, pars 5 - 12. Ms Rankin's conclusions from her assessment of that participation include the following from exhibit 1.5, par 26:
Although [W] cannot be considered as having made any treatment gains in terms of addressing his sexual offending behaviour, he has demonstrated that he has the ability to engage in a therapeutic relationship. I agree with Mr Summerton's assessment that he would not gain any additional benefits through participating in a SODP, and he remains unsuitable for any other programmatic intervention because of his categorical denial of his sexual offending. Therefore, ongoing engagement in the current individual intervention is considered the most appropriate forum for [W]. While he may never shift in his stance of denial, this is not considered to be a complicating factor in maintaining an ongoing therapeutic relationship, and research suggests that it is not necessarily risk relevant, particularly where denial functions to preserve the individual's self-concept. This appears to be relevant to [W], as he seems to have a desire to present himself as capable and a person of intelligence and consequence. A strong therapeutic relationship remains the most effective means of providing [W] with opportunities to discuss matters relevant to his ongoing risk and self-management.
24 There is a similar opinion expressed in Dr Hall's report: see exhibit 1.6, par 36 where he also says this. I refer, for that purpose, to the last sentence appearing in par 36:
In my opinion, with ongoing engagement in individual psychological treatment in the community the risk of [W] committing a future serious sexual offence can be managed such that it would most likely fall into the moderate range.
25 I further note the following from Dr Hall's report which I consider to be warranted by the material referred to in the previous paragraph of my reasons in the present review: see exhibit 1.6, par 30:
Therefore, although [W]'s progress may appear to have been minimal, there now exists a window of opportunity that did not previously exist and may close with continued detention. [W] has for the first time engaged with a therapist and is prepared to maintain that engagement in the community. Given the density of his denial and lack of other supports, that preparedness represents a much greater gain in terms of risk management than may seem initially apparent.
26 Ms Henshall's evidence includes a set of proposed supervision order conditions: see exhibit 1.7, pages 35 - 39. Those appear to be the same as or very similar to those I described in Director of Public Prosecutions (WA) v W [188] and [189]. Those conditions include a proposed residence for him which, as I understood Ms Henshall's evidence, she had assessed as suitable, and she had assessed as available after a short delay of no more than a few days from the making of a supervision order. This would be for the first 12 months of a supervision order for W, after which further suitable arrangements might be made.
27 Those conditions are carried forward into exhibit 2 with a few modifications with which Ms Henshall testified she had no difficulty. The most significant of those modifications is the addition of 'friendship' to the list of relationships, the formation or commencement of which would give rise to obligations of reporting of that formation to W's Community Corrections Officer, and the disclosure of his past offending and the supervision order to the other party to the relationship. This modification is readily understandable by reference to the past offending described in Director of Public Prosecutions (WA) v W [49] - [55].
28 The conditions in exhibit 2, taken as a whole, appear clearly to me to be appropriate for the management, as described by Dr Hall and Ms Rankin, of W's risk of reoffending. Further, I note the evidence of Ms Henshall as to the resources available for the implementation of those conditions and the ways in which those resources are to be used particularly in having W understand the nature of the conditions in the supervision order.
29 On the evidence of Dr Hall and Ms Rankin, as I have described and analysed it above, and the conditions in exhibit 2 and the resources available for their implementation, as I have described and analysed them, I consider I should make an order in the terms of exhibit 2 under s 33(2). This decision is made with the paramount consideration being the need to ensure the adequate protection of the community.
Conclusion and orders
30 Having made the finding in DSO Act s 33(2), I would make the orders in s 33(2)(b). Those orders are:
(1) to rescind the continuing detention order; and
(2) to make a supervision order for W in the terms of exhibit 2.
31 I would also make a further order in the terms of the proposed suppression order put before me, as supported by both parties in case the foregoing were my orders. That suppression order is in respect of the address set out in the supervision order of the proposed residence of W. This is an order of a kind that is almost invariably made in cases like this one. It is, in my view, appropriate to make it given the importance of avoiding the impairment of the prospects for the achievement of the purposes of the supervision order that might result, were the order not made, and the stringency of the conditions in the suppression order when that stringency is considered with the resources available for its purposes.
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