Director of Public Prosecutions (WA) v Warmdean
[2019] WASC 6
•14 JANUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- WARMDEAN [2019] WASC 6
CORAM: FIANNACA J
HEARD: 14 JANUARY 2019
DELIVERED : 14 JANUARY 2019
FILE NO/S: DSO 2 of 2018
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
WILLIAM STANLEY JOSEPH WARMDEAN
Respondent
Catchwords:
Criminal law - Dangerous sexual offender - Division 2 hearing - Unacceptable risk - No available accommodation - No reasonable supervision conditions that would reduce the respondent's risk adequately to protect the community
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Detained in custody for an indefinite term for control, care or treatment
Representation:
Counsel:
| Applicant | : | Mr B Meertens |
| Respondent | : | Mr T Hager |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Aboriginal Legal Service (WA) |
Case(s) referred to in decision(s):
The Director of Public Prosecutions (WA) v Allen [No 5] [2018] WASC 274
The Director of Public Prosecutions (WA) v Decke [2009] WASC 312
The Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
The Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307; (2008) 198 A Crim R 149
The Director of Public Prosecutions (WA) v Hart [2019] WASC 4
The Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246
The Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
The State of Western Australia v Bentley [2018] WASC 135
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Newland [2018] WASC 344
Table of Contents
The application and its history
Statutory framework
The evidence in these proceedings
Consideration of the matters under s 7(3) of the Act
Respondent's antecedents
Background leading up to history of offending
Early psychological assessments of the respondent's childhood and antisocial behaviour
Criminal history
Response to supervision
Conduct in prison
Persistence of antisocial attitudes
Additional information concerning the respondent's history
Conclusions in respect of the respondent's antecedents
Respondent's sexual offending - pattern and propensity
Circumstances of offending
Respondent's account of the offending
Pattern and propensity
Rehabilitation programs
The VOTP
The ISOTP
Respondent's recollection of material learned
The FASD assessment
FASD Report
Analysis
Psychiatric evidence
The respondent's understanding of his sexual offending
Mental state examination
Whether there is sexual deviancy
Sexual drive
Risk assessment
Static 99-R
PCLR
RSVP
3-Predictor model
Risk scenario
Overall opinion
Dr Wojnaroska
Dr Wynn Owen
Recommendations for future treatment
Other reports
Proposed DSO Management Plan
Community Supervision Assessment
Conclusions
Unacceptable risk
Continuing detention order or supervision order
What needs to happen next
Orders
FIANNACA J:
The application and its history
This is an application for a Division 2 order under the Dangerous Sexual Offenders Act 2006 (WA) (the Act) that -
(a)the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order);
(b)alternatively, he be subject to conditions when not in custody (a supervision order),
on the basis that he is a serious danger to the community, in that there is an unacceptable risk that, if one of those orders is not made, the respondent will commit a serious sexual offence.
The respondent is now 21 years old. From the age of 14 years in 2012 to the age of 18 years in 2015, he committed a number of indecent assaults upon females of varying ages. In each case he accosted or attacked a stranger in a public place. Two of the sexual offences involved the use of a weapon. The seriousness of the offences escalated over time and the last of the sexual offences, committed on 18 December 2015, involved a significant degree of violence on a 60‑year‑old woman.
On 27 July 2016, the respondent was sentenced in respect of the last of the sexual offences, in the Perth Magistrates Court, to a term of 22 months' imprisonment. The sentence was made cumulative upon another sentence of 14 months' imprisonment for an unrelated offence of assault occasioning bodily harm. The total effective sentence of 3 years' imprisonment was backdated to commence on 22 December 2015, the date from which the respondent had been in custody on remand. The respondent was made eligible for parole, but on 7 April 2017, at the respondent's request,[1] the Prisoners Review Board denied him release on parole. For reasons I explain below, he could not have been released after 2 February 2018 in any event, as a result of these proceedings. The sentence expired on 21 December 2018.
[1] The respondent wished to remain in custody to complete the Violent Offending Treatment Program as part of his release strategy. I will return to this later.
Under s 8 of the Act, the Director of Public Prosecutions (DPP) may make an application to this Court for orders under s 14 and div 2 of the Act in relation to an offender who is under a custodial sentence for a serious sexual offence (as defined in the Act[2]), or, if he has been discharged from such a custodial sentence, is under a custodial sentence for another offence, and there is a possibility that he might be released from prison within the period of one year after the application is made. That was the case in respect of the respondent when the DPP made the application pursuant to s 8 on 12 January 2018. The sexual offence for which the respondent was sentenced on 27 July 2016 was an aggravated indecent assault, which is a serious sexual offence for the purposes of the Act.
[2] Dangerous Sexual Offenders Act 2006 (WA), s 3(1). For present purposes the definition includes 'a serious sexual offence as defined in the Evidence Act 1906 section 106A'. See also [17] and [18] below.
In accordance with s 14 of the Act, the application made by the DPP was for an order under that section to fix a date for the hearing of the present application for a Division 2 order, and for consequential orders under that section, including an order requiring the respondent to be examined by psychiatrists for the preparation of reports for the hearing. Such an application requires the court to be satisfied that there are reasonable grounds for believing that a court might find that the respondent is a serious danger to the community.
On 2 February 2018, in the preliminary hearing under s 14, Corboy J concluded on the balance of probabilities that there were such grounds and made orders under s 14(2).
His Honour fixed a date for the Division 2 hearing in October 2018. The respondent had commenced the Intensive Sex Offender Treatment Program (ISOTP), and it was considered he should be given the opportunity to complete the program before the Division 2 hearing proceeded. It was thought that would occur by October 2018.
The other orders made by Corboy J included orders that there be reports prepared by two psychiatrists, namely Dr Wynn Owen and Dr Wojnarowska, pursuant to s 37 of the Act, and that, pursuant to s 38A, PATCHES Paediatrics be engaged to provide a report or reports setting out the opinions of appropriately qualified experts on whether the respondent suffers from any neurological, cognitive or psychological deficit, including, but not restricted to, Foetal Alcohol Spectrum Disorder (FASD), and on other questions and topics to be advised by the applicant and respondent. The order for the PATCHES report arose from evidence in the materials in the preliminary hearing, including previous psychological and psychiatric reports produced for various sentencing proceedings, which raised suspicion about neurodevelopmental deficits. An assessment of the kind sought from PATCHES had not previously been undertaken in respect of the respondent.
Corboy J also made an order pursuant to s 14(2)(b) of the Act that the respondent be detained in custody until the conclusion of the hearing and judgment on the application for a Division 2 order. The respondent has been in custody on that order since 21 December 2018.
The matter was listed for a directions hearing on 17 September 2018. At that hearing, before Jenkins J, the court was advised that the respondent had been removed from the ISOTP on 22 May 2018, after completing 53 of 107 sessions, because he had missed too many sessions. The reasons for that were not the respondent's fault. His father had died and he had been transferred to another prison to be able to attend the funeral, but the funeral was postponed and he remained at the other prison longer than had been expected. As he had not completed the ISOTP, he was referred for individual psychological counselling on 19 June 2018, but that counselling had not yet commenced. In the circumstances, Jenkins J decided to vacate the hearing date in October 2018 and to relist the hearing on 30 November 2018 to give the respondent a reasonable opportunity to engage in counselling and for there to be some report indicating his progress under that counselling.
The Division 2 hearing proceeded on 30 November 2018 before me. The issues for determination are:
(1)whether the respondent is a serious danger to the community; and
(2)if so, whether the appropriate order is one of indefinite detention or release into the community on a supervision order.
If the respondent is found to be a serious danger to the community, one of those orders must be made.
On behalf of the respondent, it was conceded that the evidence would satisfy me to the requisite standard that the respondent is a serious danger to the community. It was also conceded that there are significant impediments at this stage to the making of a supervision order, in that there is no suitable accommodation to which the respondent could be released while subject to such an order.
For the reasons that follow, I have come to the conclusion that the respondent is a serious danger to the community. I have further concluded that, at present, there are no conditions that could be imposed that would adequately reduce the risk that the respondent would commit further serious sexual offences if he was released into the community on a supervision order and that such an order is, therefore, inappropriate. Accordingly, it is necessary for me to make a continuing detention order.
Statutory framework
The manner in which the court is to deal with a Division 2 hearing is set out in section 17 of the Act, which provides:
(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must -
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.
(2)Subject to subsection (3), in deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
(3)A court cannot make an order under subsection (1)(b) unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order.
(4)The onus of proof as to the matter described in subsection (3) is on the offender.
Section 7(1) of the Act provides that before the court can find that a person is a serious danger to the community, it must 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. If the court is satisfied that there is an unacceptable risk of the kind described in s 7(1) of the Act, it necessarily follows that the person concerned is a serious danger to the community.[3]
[3] The Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [66] (Wheeler JA); The Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307; (2008) 198 A Crim R 149 [21] (Steytler P and Buss JA).
A serious sexual offence is defined in s 3 of the Act to have the meaning given to that term in s 106A of the Evidence Act 1906 (WA). Section 106A of the Evidence Act provides that 'serious sexual offence' means an offence mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is 7 years' imprisonment or more.
The respondent has committed several offences of aggravated indecent assault, which come within pt B of sch 7 of the Evidence Act. He has also committed some other offences that are not characterised as serious sexual offences. Offences of other types may be relevant in assessing the risk of serious sexual offending being committed in the future, because other offences may be connected to behaviour which has the real potential to lead to serious sexual offending.[4]
[4] The Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10].
Section 7(2) of the Act provides that the DPP has the onus of satisfying the court that a person is a serious danger to the community. The court has to be satisfied by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities, but less than a finding of beyond reasonable doubt; it is otherwise incapable of further definition.[5] This does not necessarily mean that the risk must be at some high percentage of probability; a risk may be less than 50%, yet still be unacceptable. However, the court must identify what it is that constitutes the risk and what makes it unacceptable and then consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence.[6]
[5] GTR [28] (Steytler P and Buss JA).
[6] GTR [34] (Steytler P and Buss JA).
What is meant by 'unacceptable risk' was considered by Wheeler JA in Williams.[7] Her Honour said:[8]
In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.
[7] Williams [63] ‑ [65] (Wheeler JA).
[8] Williams [63] ‑ [65] (Wheeler JA).
The matter was considered further in GTR, where Steytler P and Buss JA said that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised and the serious consequences for an offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).[9]
[9] GTR [27] (Steytler P and Buss JA).
Section 7(3) of the Act sets out a number of matters that the court must have regard to in considering whether a person is a serious danger to the community. Those matters are:
(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; and
(b)any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d)whether or not there is any pattern of offending behaviour on the part of the person; and
(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; and
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and
(g)the person's antecedents and criminal record; and
(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; and
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
As s 7(3)(j) implies, the list of matters to be considered by the court is not closed. There is clearly overlap between a number of the matters in the list, and some of the matters inform others.
It has previously been noted that, while s 7(3)(g) provides that the court must have regard to any criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious sexual offence in the future. The relevance of a prior record will depend on the nature of the offences committed, the number of them and the period of time over which they have occurred. However, past behaviour is often a good indicator of future conduct. Further, as I noted earlier, offences other than serious sexual offences may be relevant in assessing the risk of the respondent committing a serious sexual offence in the future, because they may demonstrate behaviour which has the real potential to lead to serious sexual offending
Once a court has concluded that an offender is a serious danger to the community, it must make either an indefinite detention order or a supervision order.[10] In deciding between those two possibilities, the paramount consideration is the need to ensure the adequate protection of the community.[11] That does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order.[12]
[10] Williams [68] (Wheeler JA). Relevantly for present purposes, 'supervision order' is defined in s 3(1) of the Act to mean an order under s 17(1)(b).
[11] Section 17(2) of the Act.
[12] The Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
The court should choose the option which is least invasive or destructive of the respondent's right to be at liberty. At the same time it must ensure an adequate degree of protection of the community.[13] Therefore, if the court is not satisfied that a supervision order is capable of providing adequate protection of the community (having regard to the possible conditions which might be imposed, as identified in the evidence), it must make a continuing detention order.[14]
[13] The State of Western Australia v Latimer [2006] WASC 235 [49].
[14] That will be the case if the court is left in doubt that a supervision order will provide adequate protection: The Director of Public Prosecutions (WA) v Williams [86] (Wheeler JA, Le Miere AJA agreeing).
Section 17(3) of the Act provides that a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. Pursuant to s 17(4) of the Act, the onus of proof is on the respondent. These provisions were introduced as a result of an amendment that commenced on 29 March 2018.[15]
[15] Dangerous Sexual Offenders Legislation Amendment Act 2017 (WA), s 16.
The term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act as meaning a condition under s 18(1) that must be included in the order. Section 18(1) of the Act provides seven conditions that must be included in a supervision order. Therefore, the effect of s 17(3) and 17(4) is that the respondent must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order. I have expressed my views as to what is meant by substantially comply with in Director of Public Prosecutions (WA) v Hart [2019] WASC 4. In essence, I consider that the court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.[16]
[16] The Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52].
Although it was not raised by either party, there is a possible argument that s 17(3) and s 17(4) do not apply in this case because the application in these proceedings was filed before those sub‑sections came into operation.[17] The bases for such an argument and the contrary argument were discussed in The State of Western Australia v A by Corboy J at [50] - [56] and in The State of Western Australia v Newland by Hall J at [25],[18] although in each case the judge came to the conclusion that it was not necessary to determine the issue. That was also the case in The State of Western Australia v Bentley (a Division 2 hearing) and in Director of Public Prosecutions (WA) v Allen [No 5] (a periodic review under s 33 of the Act).
[17] See The State of Western Australia v Bentley [2018] WASC 135; The State of Western Australia v A [2018] WASC 250; The State of Western Australia v Newland [2018] WASC 344, in all of which the issue arose on a div 2 hearing, and The Director of Public Prosecutions (WA) v Allen [No 5] [2018] WASC 274, where it arose in the context of a periodic review.
[18] I note that, as in this case, in Newland, the respondent did not argue that the amendment did not apply.
I have come to the same conclusion in this case, because, regardless of whether or not s 17(3) and s 17(4) have effect, the evidence adduced by the applicant plainly establishes that there are no conditions that could adequately reduce the risk that the respondent would commit a further serious sexual offence if released on a supervision order. The requirement in s 17(3) is one consideration (albeit a determinative consideration if the court is not satisfied it has been met) in determining whether the offender's risk can be managed adequately in the community, so as to provide adequate protection of the community.
I am inclined to agree with the views expressed by Corboy J in The State of Western Australia v A that, even before the amendment, s 17 required consideration of the likelihood of an offender complying with the standard conditions (and any other conditions) to be imposed if a supervision order was made, and if there was real doubt about whether the offender would comply with a supervision order, the court could not be satisfied that the community could be adequately protected by such an order. However, in this case, apart from any question of whether the respondent would comply with the standard conditions, I am not satisfied that a supervision order would provide adequate protection of the community.
Had the issue of substantial compliance been a live one in this case, I would have sought submissions from the parties in respect of the controversy that has arisen in the other cases, which was not considered at the hearing. That has not been necessary.
The evidence in these proceedings
The evidence in the hearing consists of a book of materials, which was tendered by the applicant without objection, and oral evidence given by:
(1)Dr Wojnarowska, one of the two consultant forensic psychiatrists who examined the respondent for these proceedings;
(2)Dr Wynn Owen, the other consultant forensic psychiatrist;
(3)Dr Galloghly, Senior Clinical and Forensic Psychologist with the Forensic Psychological Services of the Department of Justice, who prepared a psychological report and Proposed Management Plan for the respondent; and
(4)Mr Kyle Jarvie, Senior Community Corrections Officer, who prepared a Community Supervision Assessment report.
The book of materials (BOM), which is 568 pages in length, includes the reports of each of the witnesses and comprehensive materials concerning:
(1)the respondent's antecedents, including his criminal record;
(2)the offences for which he was sentenced on 11 April 2013, 13 November 2013 and 27 July 2016, including witnesses statements and transcript of the respondent's interviews with the police;
(3)the sentencing proceedings on each of those occasions, including the sentencing transcript, and various reports relied upon in the sentencing proceedings, being Youth Justice Services reports, pre‑sentence reports, psychological reports and other specialist reports;
(4)sentencing proceedings in respect of other offending, including Youth Justice Services reports, program reports, psychological reports and other specialist reports;
(5)the consideration of parole in April 2017 (Parole Review Report); and
(6)the respondent's participation in the Violent Offending Treatment Program (VOTP) (report dated 6 November 2017) and the ISOTP (Non-completion report dated 12 July 2018).
The specialist reports referred to in item (4) in the preceding paragraph included a report of Dr Wojnarowska dated 1 February 2015 for sentencing proceedings on 7 April 2015 in respect of offences of aggravated burglary, stealing and carrying a weapon so as to cause fear.
I note that Dr Wynn Owen's report included in the book of materials was dated 22 November 2018. At the hearing an amended version, dated 24 November 2018, was tendered to correct some errors that Dr Wynn Owen had identified. That report was substituted for the original, and I have relied on the amended version, maintaining the original BOM page numbering in references that follow.
Finally, the materials also include the FASD report dated 28 September 2018, prepared by Dr J Fitpatrick and Dr C Pestell of PATCHES Paediatrics (the PATCHES Report). Neither of those experts was called by the applicant to give oral evidence, and they were not required by the respondent.
Consideration of the matters under s 7(3) of the Act
As I noted earlier, the matters listed in s 7(3) of the Act, to which the court must have regard, overlap. The matters in paragraphs (h) and (i), concerning the respondent's risk and the need to protect the community, involve conclusions that directly inform the question of whether the respondent is a serious danger to the community. Those conclusions are reached on the information and findings in respect of all of the other matters listed in s 7(3). The questions concerning propensity and any pattern of offending behaviour (paragraphs (c) and (d)) will be informed by the respondent's antecedents and criminal record (paragraph (g)) and by the findings in the reports and assessments referred to in paragraphs (a) and (b). Those findings will also inform the matters in paragraphs (e) and (f) concerning efforts at rehabilitation and the effect of participation in rehabilitation programs.
It is convenient to start with the respondent's antecedents, including his criminal history, in particular the offending that is most relevant to the assessment of his risk of serious sexual reoffending.
Respondent's antecedents
Background leading up to history of offending
The respondent is a 21 year old male and is the oldest of three children from his parents' relationship. He also has four half-siblings. He was born and raised in Perth.
The details of his early history are elusive. Numerous reports have been prepared about the respondent over the years since he commenced to offend as a juvenile, including presentence reports, psychological reports and psychiatric reports. The information in those reports has largely come from the respondent, but some of it has come from his father and stepmother, and from persons who have dealt with the respondent in the juvenile justice system.
There is no independent evidence in respect of the childhood developmental milestones by which his early development could be assessed. There are indications that he reached developmental milestones within the normal timeframes, but that is not clear.
The respondent has said to some authors of reports over time, including to Dr Wynn Owen, that he had a 'happy' early childhood.[19] Yet he has said that his mother abused alcohol and that he witnessed violence between his parents, mainly perpetrated by his mother. His father, who is now deceased, at one stage reported that he struggled to protect the children against their mother's violent behaviour. Yet it is not clear whether the respondent was physically harmed by his mother during that time, although it has been suspected that he was. The respondent has said that he was physically abused by his father when he, the respondent, tried to protect his mother.[20]
[19] BOM 533. Psychiatric Report, 24 November 2018, Dr P Wynn Owen, 7.
[20] BOM 476. ISOTP Program Non-completion Report, 12 July 2018, 2.
There is evidence that his mother also used illicit drugs, in particular methamphetamine. The respondent has said that she often left him alone at home while she went out using illicit substances. He also saw her injecting an illicit substance.[21]
[21] BOM 476 - 477. ISOTP Program Non-completion Report, 12 July 2018, 2 - 3.
Information concerning his father at a time when the respondent was in detention later, as a teenager, suggests that he was evicted from premises at one stage because it was suspected the premises were used for dealing in illicit drugs and one of the respondent's younger siblings was using substances.[22] However, there is no indication in the materials that the respondent's father was using or dealing drugs.
[22] BOM 430. Youth Justice Officer's Report, 3 September 2014, Ms N Larnach, Senior Youth Justice Officer.
More generally, the historical materials indicate that other family members engaged in antisocial behaviour, including violent behaviour. I note in particular a comment made by the respondent during his participation in the ISOTP that his family 'talks with their fists'.[23]
[23] BOM 480. ISOTP Program Non-completion Report, 12 July 2018.
The respondent's parents separated in 2004. He and his siblings were taken into the care of the Department of Child Protection and Family Services. The respondent was in foster care between 2004 and 2010, during which time it appears he had at least three foster placements. The respondent has said that he was not happy during that time, and that there was at least one placement in which he was physically and emotionally abused.[24] I note that when the respondent was interviewed by Ms Wager, a clinical psychologist, in December 2012, the respondent was not able to provide any information about the time he was in foster care, claiming that he could not remember much of that time, and the information indicating that he had been unhappy and abused came from his father, who said it was in 'at least one placement'.[25] Later, in July 2013, when interviewed by another clinical psychologist, Ms Buktenica, the respondent denied any abuse while he was in foster care, although he said he was exposed to violence.[26]
[24] BOM 508. Psychiatric Report, 10 November 2018, Dr G Wojnarowska.
[25] BOM 195. Psychological Report for Court, 4 January 2013, Ms W Wager.
[26] BOM 264. Psychological Report for Court, 25 July 2013, Ms R Buktenica.
Both Dr Wojnarowska and Dr Wynn Owen gave evidence that childhood abuse may be relevant to the development of the respondent's personality and his neurological development, so I have given consideration to whether I can make any finding about that issue, in light of the inconsistencies. Notwithstanding the inconsistencies, it is apparent that, at a time proximate to when he was in care, the respondent disclosed to his father his unhappiness and the fact that he was abused in at least one of the foster placements, and he appears to have had some memory of it in more recent times. I will proceed on the basis that he did suffer some physical and emotional abuse during that period, although the nature and extent of the abuse is not known. Further, it is not unusual to find that a child who has been moved on a number of occasions into different foster homes would find the experience unsettling and stressful. It is not surprising that the respondent would be unhappy during that period.
The respondent's father remarried when the respondent was about 10 years of age. His partner, Ms Hayes, became the respondent's stepmother. The respondent was returned to the care of his father when he was 11. It appears that some of his siblings also lived in the home. The respondent has said that he maintained a good relationship with his father and stepmother. He has also said in the past that he got on well with his siblings. However, his father and stepmother indicated to Ms Wager in December 2012 that the respondent had anger management issues and that he fought with his siblings.[27] Ms Hayes also indicated that it had taken some time to build a relationship with the respondent, and that he did not like being told what to do.[28]
[27] BOM 195. Psychological Report for Court, 4 January 2013, Ms W Wager.
[28] BOM 195. Psychological Report for Court, 4 January 2013, Ms W Wager.
The respondent has said that he progressed through primary school normally and did relatively well in Year 8 of high school. He told Dr Wojnarowska that he had no learning difficulty,[29] but told Dr Wynn Owen that he had difficulty with numeracy and literacy.[30] I note that the Parole Review Report states that 'literacy and numeracy screening undertaken during the interview indicated satisfactory skills, and there is no recommendation for Adult Basic Education'.[31] No details of the 'screening' are provided.
[29] BOM 508. Psychiatric Report, 10 November 2018, Dr G Wojnarowska, [12.8].
[30] BOM 534. Psychiatric Report, 24 November 2018, Dr P Wynn Owen, 8.
[31] BOM 464.
The PATCHES report states that 'source documents suggest that [the respondent] displayed a global delay in his academic performance'.[32] The source documents are not identified. Dr Wojnarowska, in her report of 1 February 2015, also noted the reference to 'global delay', although the respondent had not displayed 'specific learning or behavioural difficulties in primary school'.[33] During Year 8 and the early part of Year 9, he was in what he referred to as a 'special class', but which the PATCHES Report, Dr Wojnarowska (in her report of February 2015) and Dr Wynn Owen refer to as the Swan Education Program, which elsewhere is described as the Swan Noongar Sports Education Program.[34] It appears from what he has said to various authors of reports that he was making gains in that program until he started to truant and behave antisocially in Year 9, which disrupted his schooling. He has said he was suspended for fighting and truanting, and that he left school part way through Year 10.
[32] BOM 485, PATCHES Report, [3.5].
[33] BOM 443, [8.5].
[34] BOM 378. Court Report, 9 July 2012, Ms R Carr, Youth Justice Officer.
The respondent had an interest in football and played competitively, although it appears intermittently, from 2010 to 2012. I surmise that was part of the Swan Education Program. He told Dr Wojnarowska that he lost motivation and interest after he started using illicit drugs.[35] However, he has also said that he started using alcohol and cannabis from the age of 12, which would suggest he was already using substances when he was playing football. I will say more about the respondent's alcohol and drug use below.
[35] BOM 509. Psychiatric Report, 10 November 2018, Dr G Wojnarowska, [12.11].
After the respondent left school, it appears that he was largely engaged in antisocial behaviour, which involved consuming alcohol, smoking cannabis, and committing criminal offences. In more recent times he was also using methamphetamine. As a consequence, he has a lengthy criminal record as a juvenile, commencing on 10 July 2012, when he was 14 years old. He has spent several periods in detention.
Early psychological assessments of the respondent's childhood and antisocial behaviour
In January 2013, Ms Wager had come to the conclusion that the respondent's parents appeared to be 'uninvolved in terms of enforcing appropriate consequences for inappropriate behaviour.'[36] She said:
It therefore appears that William has learned that he can largely do as he pleases with few negative consequences. While he has experienced legal consequences for his behaviour, the long delays tend to make them minimally effective in reducing antisocial behaviour, which has significant and more immediate rewards. Therefore, from his perspective, there is limited inducement for him to change his behaviour. William stated at interview that he felt comfortable in [the detention centre].
[36] BOM 198. Psychological Report for Court, 4 January 2013, Ms W Wager.
In a psychological report dated 25 July 2013 for subsequent sentencing proceedings, after the respondent had committed a number of offences of aggravated indecent assault, clinical psychologist Ms Buktenica said:[37]
William was returned to live with his father when he was 11 years of age and currently resides with his father and stepmother. He described a reasonably close relationship with them both which was confirmed by his father. He denied any problematic parental substance abuse in the home and denied any violence or abuse. It is however my understanding his family have experienced difficulties placing any rules, boundaries or consequences around his behaviour and William admitted he often walks around the community late at night and does not attend school and his father and stepmother struggle to enforce rules. Mr Warmdean reported that William was normally well-behaved in the home environment, however does have anger problems and has 'punched many walls' when his anger has been triggered. Mr Warmdean tended to minimise these difficulties and stated 'it's all right, they are easy to fix' and did not appear overly concerned by William's anger issues.
In sum, William's childhood appears to have lacked the stability and structure that best fosters stable personality development and he has lacked appropriate adult supervision and positive role modelling. He has been at considerable psychological and physical risk throughout his childhood and regularly places himself in situations that are high risk for offending and antisocial behaviour.
[37] BOM 264. Psychological Report for Court, 25 July 2013, MS R Buktenica.
Later in her report, Ms Buktenica noted that the respondent 'was not modelled appropriate emotional management skills throughout his childhood and did not get his emotional needs met'.[38] She expressed concern that the respondent's 'difficulties in the school environment, substance abuse, aggression and anger and offending behaviour', all appeared to be escalating, and that his involvement with Community Youth Justice did not appear to have deterred him.[39]
Criminal history
[38] BOM 267. Psychological Report for Court, 25 July 2013, MS R Buktenica.
[39] BOM 267. Psychological Report for Court, 25 July 2013, MS R Buktenica.
The respondent's criminal history reveals the following.
On 10 July 2012, the respondent was sentenced for 47 offences, which included stealing offences, in particular stealing motor vehicles, numerous offences of attempting to steal motor vehicles, property damage, aggravated burglaries and endangering the life, health or safety of a person. The offending had happened in April and May 2012, when the respondent was 14. He was sentenced in the Children's Court at Perth to 6 months' detention.
He was again sentenced to a concurrent term of 3 months' detention in Perth on 9 August 2012 for criminal damage and an aggravated burglary on a dwelling which had occurred in the same period. He received a term of 3 months' detention for the aggravated burglary. Subsequently, in September and December 2012, and in March 2013, the respondent was dealt with in the Children's Court for further offences of stealing and an offence of possessing a prohibited drug committed when he was 14 and 15 years of age. He was dealt with by the Juvenile Justice Team and no punishment was imposed, as he had spent time in custody on remand.
On 11 April 2013, the respondent was sentenced in Perth to terms of 5 months' and 8 months' detention to be served concurrently for offences of indecent assault, two counts of aggravated indecent assault, being armed so as to cause fear, assault with intent to rob and aggravated burglary. The offences were committed on various dates in September and November 2012 and in February 2013. I will return shortly to the circumstances of his sexual offending and the offence of assault with intent to rob, which the court was satisfied had been sexually motivated.
On 13 November 2013, the respondent was sentenced in the Children's Court at Perth to 15 months' detention for offences of aggravated indecent assault and deprivation of liberty, which he had committed on 19 February 2013 when he was 15. After he was released from detention, he committed a number of home burglaries and stealing offences as well as offences of carrying a weapon and attempted burglary, which occurred in December 2014 and January 2015 in Kalgoorlie. He was 17 years of age when he committed those offences. He had gone to live in Coolgardie with a cousin after his first period of detention.
The respondent was dealt with in the Children's Court at Kalgoorlie on 7 April 2015 and was placed on an intensive youth supervision order (IYSO) for four months. After he had completed the IYSO, he committed aggravated burglaries in September 2015, for which he was dealt with in the Children's Court at Perth on 22 October 2015, when he was again placed on an IYSO, on that occasion for six months.
On 27 July 2016, the respondent was sentenced in the Perth Magistrates Court for a number of unrelated offences that had been committed by him after he had turned 18 years of age from 27 October 2015 until 18 December 2015. The most significant of the offences were an assault occasioning bodily harm, which was committed on 2 November 2015, and an aggravated indecent assault and aggravated assault occasioning bodily harm that were committed on 18 December 2015. I will say more about those last offences when I deal with the respondent's sexual offending. As for the assault occasioning bodily harm, the offence involved an attack by the respondent and a large number of other persons on a 50-year-old male victim who had tried to prevent someone in the respondent's group from breaking into his mother's car at the front of his property. The victim suffered a broken nose and a dislocated jaw.
As I said in [3] above, the respondent was sentenced to 14 months' imprisonment in respect of the assault occasioning bodily harm on the male victim. That sentence was ordered to be served cumulatively upon a sentence of 22 months' imprisonment imposed for the aggravated indecent assault, resulting in the aggregate sentence of 3 years' imprisonment.
Response to supervision
In the Community Supervision Assessment prepared for these proceedings, Mr Jarvie notes that the respondent's ability to comply with community supervision provided by the Department of Justice has been tested on two occasions as a juvenile, being the occasions on which he was released on an IYSO on 7 April 2015 and 22 October 2015. His response to supervision on the first occasion is described by Mr Jarvie as follows:[40]
Mr Warmdean was noted as showing significant compliance and engagement in the Order. The participation involved significant community supports, including Parent Support Program, Youth Crime Intervention Office, Intensive Family Support and Housing Program and education programs through Kensington Police and Community Youth Centre (PCYC). Mr Warmdean was also noted to engage with a departmental psychologist.
[40] BOM 557.
However, as Mr Jarvie goes on to note, at the end of the period of the first IYSO, without the significant support included in his IYSO, the respondent soon returned to his previous offending. As for the second IYSO, Mr Jarvie says:
Mr Warmdean's only subsequent engagement with [the Department of Justice] to date remains a further brief period subject to an IYSO from 22 October 2015 to 22 December 2015, at which point he was remanded in custody for his current index offence. During this period of community supervision, Mr Warmdean is noted to have had minimal engagement with his IYSO, attending on only two occasions which were facilitated by his father.
Conduct in prison
Mr Jarvie, in the Community Supervision Assessment, refers to two notable incidents during the period of the respondent's recent term of imprisonment. The first was in August 2016 and involved threatening behaviour by the respondent and an accomplice towards an inmate with whom the respondent was sharing a cell. The other concerned the respondent's late attendance at the VOTP, which the respondent attributed to changing prison and being unfamiliar with the different regime.
The respondent also received verbal warnings from time to time in relation to matters of a disciplinary nature. However, the Individual Management Plan prepared for the respondent in July 2018 noted that he was generally compliant and followed instructions.
Persistence of antisocial attitudes
Despite the positive indications of engagement in the first IYSO, and his general compliance in more recent times while serving his sentence of imprisonment, the respondent has indicated during treatment that he has entrenched antisocial views that need to be addressed. The authors of the ISOTP Non-completion Report note the presence of those views while the respondent was undertaking the ISOTP in the early part of 2018:[41]
Mr Warmdean's antisocial cognitions were highlighted during the CBT Floor Map exercises where he displayed hostile views towards the authorities, especially police, and had difficulty in contemplating alternatives. He provided a past example involving a fight in Perth with family members and that his family 'talks with their fists'. Upon police arrival he was asked why he did not de-escalate the situation to which he displayed antiauthoritarian views around the presence of the police and mentioned that 'I will never do anything like a policeman, I will never act like a policeman'. As such, his treatment needs in this area remain outstanding.
[41] BOM 480. ISOTP Non-completion Report, 12 July 2018, 6. Note: 'CBT' is an abbreviation for 'cognitive behavioural therapy'. See BOM 479; p 5 of the report.
While those views do not relate to sexual offending, the presence of a general antisocial attitude is relevant to the assessments made by the psychiatrists and to the respondent's capacity to be managed under a supervision order.
Additional information concerning the respondent's history
Further education
While in juvenile detention, and subsequently in the adult prison, the respondent received some further education. During his time in an Education and Vocational Art class, it was noted that he had difficulties reading and also had some difficulty with mathematics other than simple addition and subtraction.[42] However, he undertook a TAFE Certificate 1 Automotive Program at the Kensington Police and Community Youth Centre (PCYC) commencing in May 2015, and appears to have completed that successfully.[43] He also completed the 'Drive to the Future' program and subsequently qualified to obtain his Learner Driver's Licence.[44]
Relationships
[42] BOM 485. PATCHES Report, 3.5.
[43] BOM 451, Update Report from Youth Justice Services, 21 October 2015, Ms K Kelly. See also BOM 341; Pre-sentence Report, 15 January 2016, Ms T Caverley.
[44] BOM 451, Update Report from Youth Justice Services, 21 October 2015, Ms K Kelly.
The respondent had a significant romantic relationship with a girl his age who he met in 2014. He told Dr Wojnarowska that the relationship ended after 3 months because she died.[45] It was clearly a tragic event in his life. He told Dr Wojnarowska that he had attempted suicide in the past on several occasions, and one of those was when he lost his girlfriend. Another time was when an uncle died, which appears to have been another tragic event in his life. It occurred prior to the last group of offences, for which the respondent was sentenced in July 2016.[46] The respondent has said he did not cope well with the loss of his uncle and engaged in extreme and self-destructive behaviours, including an escalation in his drug use.[47]
[45] BOM 509. Psychiatric Report, 10 November 2018, Dr G Wojnarowska, [12.14].
[46] BOM 466. VOTP Program Completion Report, 6 November 2017, 2.
[47] BOM 466. VOTP Program Completion Report, 6 November 2017, 2.
Apart from the romantic relationship I have mentioned, the respondent has said that he has only had casual sexual encounters (all with females), which, on his account, would appear to have occurred since he was 15.
Pornography
The respondent has said that he was accessing pornography from the age of 12. Access to pornography has been identified in a number of reports as a contributing factor to his sexual offending, which was motivated by sexual gratification.
Substance use
Substance abuse has been a feature of the respondent's life at least from the time he was in High School. When he was interviewed by Dr Wojnarowska in January 2015, the respondent said that he had started using alcohol and cannabis at the age of 12, and that he had used those substances on a regular basis since then. He denied using any other substance.
The extent of the respondent's abuse of alcohol was graphically described in the VOTP Program Completion Report, dated 6 November 2017. The authors stated:
Mr Warmdean had been abusing alcohol since childhood and reported that he would steal from bottle shops in order to obtain alcohol to get drunk. He explained that he would drink until he blacked out and usually does not taste the alcohol suggesting that he would consume it quickly. There appeared to be a sense of urgency to become intoxicated but he lacked insight as to why this was and had difficulty recognising what need his alcohol use fulfilled.
During his interview with Dr Pestell, one of the authors of the PATCHES report, the respondent said that he had drunk alcohol heavily from the age of 13 or 14 years, and that he started using marijuana from that time also. He indicated that he had been using that drug daily from the age of 16.[48]
[48] BOM 485. PATCHES Report, [3.4].
Despite telling Dr Wojnarowska, when he was 16, that he had not used any substance other than alcohol and cannabis, and despite claiming elsewhere that he does not use methamphetamine because he is aware of the effects of that drug from his natural mother's addiction, the respondent told Dr Pestell that he commenced using 'speed' (i.e. methamphetamine) around the age of 15 years and, before his more recent incarceration, he was using that drug every 2 to 3 weeks.
Medical history
The respondent has said to various authors of reports that he has suffered a number of head injuries in the past, leading to loss of consciousness, apparently when he has been intoxicated.
There is no evidence that the respondent has suffered from a psychiatric illness in the past. He has not reported experiencing psychotic phenomena. Although he has said he has attempted suicide on a number of occasions, which would indicate that he suffered periods of depression,[49] he has not been diagnosed as having a depressive illness.
[49] While this may seem obvious, it is supported by Dr Galloghly's association of the suicide attempts with periods when the respondent said he had been in 'a bad place mentally': ts 99.
He is overweight and has been diagnosed as having Type‑2 diabetes. It appears he also has high blood pressure.[50]
Conclusions in respect of the respondent's antecedents
[50] BOM 485. PATCHES Report, [3.3].
While it is difficult to obtain a clear and consistent picture of some important aspects of the respondent's background, the evidence supports the conclusion that the respondent experienced a dysfunctional childhood and adolescence, marked by family violence, physical and emotional abuse at some stage, a lack of stability, structure and emotional support for a significant part of his childhood, and some personal tragedy. He was exposed to antisocial behaviour, which included alcohol and drug abuse and the use of violence to resolve issues. I am satisfied that, overall, he lacked adequate adult supervision and positive role modelling, although the evidence shows that his father did endeavour to assist in the respondent's rehabilitation when he was under supervision in the community, and he supported the role of the police during one of the respondent's interviews with the police.[51]
[51] BOM 94 - 95. Police interview, 21 November 2012.
Having regard to all of the materials in evidence, I am of the view that it would be unfair to conclude that his parents made no attempt to impose appropriate boundaries on the respondent's behaviour. There are some indications that they tried, but were met with his anger and lack of emotional regulation. What seems to be clear is that, ultimately, they did not impose proper boundaries. Further, in the case of his father, there appeared to be an attitude at an early stage of minimising the problems with the respondent's behaviour.
In any event, Ms Wager's assessment in 2013 appears to aptly describe the attitude developed by the respondent: he believed he could largely do as he pleased with few negative consequences.
From his early teenage years the respondent engaged in self‑destructive behaviour, marked by alcohol abuse, illicit drug use and criminal offending, which was repetitive and persistent. His offending became violent and sexual. There was an escalation of violence.
Previous periods of detention and community supervision did not deter him from offending.
Respondent's sexual offending - pattern and propensity
I now turn to the circumstances of the respondent's sexual offending, as they inform whether there is a pattern of offending and whether the respondent has a propensity to commit serious sexual offences in the future.
Circumstances of offending
As I outlined earlier, he was convicted of his first series of sexual offences on 11 April 2013 in the Perth Children's Court. On that occasion he was dealt with for one count of indecent assault, two counts of aggravated indecent assault and one count of assault with intent to rob, amongst other offending.
Indecent assault - 12 September 2012
The indecent assault occurred on 12 September 2012 when the respondent was 14 years old. The victim, a 37‑year‑old woman, was walking in the company of a counsellor around an open space at a public reserve in Balga. The respondent approached the victim and grabbed her left breast and squeezed. The victim was shocked and knocked his hand away. She took refuge behind her counsellor. The respondent then stared at the victim and asked to see and feel her breasts. The victim and the counsellor walked away. The respondent continued to stare and call after the victim.
The aggravated indecent assaults occurred on 8 November 2012 and 18 November 2012. The respondent was 15 years old at the time.
Aggravated indecent assault - 8 November 2012
On 8 November 2012, around 7.45 am, the respondent was riding his bicycle on a street in Balga. The victim, a 15‑year‑old female, was walking along the street on her way to school. The respondent rode past the victim and ran his hand along her leg and up under her skirt. The victim knocked his hand away, before breaking into tears. The respondent rode away. The offence was aggravated because of the age of the victim.
Aggravated indecent assault - 18 November 2012
On 18 November 2012, around 3.00 pm, the respondent was walking along bush tracks in a public reserve in Balga (a different reserve to the one where the first offence occurred). The female victim, who was 55, was walking along the bush track in the opposite direction with her dogs. The respondent approached the victim and struck up a conversation about the dogs. The victim became unsettled by the respondent's demeanour. When she went to walk past the respondent, he reached out and touched her right breast. The victim knocked his hand away. The respondent then produced a Stanley knife, pushed the blade out and pointed the knife in the victim's direction in a threatening manner. The victim cried out, which caused the respondent to turn and walk away. The offence was aggravated because the respondent was armed with a weapon. He was also convicted of the offence of being armed in a manner likely to cause fear.
When interviewed by police about the sexual offences, the respondent admitted the offences and said he felt angry at himself for his conduct, as he knew it was wrong.
Assault with intent to rob (sexual motivation) - 22 February 2013
The assault with intent to rob occurred on 22 February 2013. At approximately 10.30 am the victim, a high school student, was walking through the same public reserve in Balga where the offence occurred on 18 November 2012. The victim was on her mobile phone. The respondent approached her within the park whilst holding a short piece of wood. He swung the wood at the victim and struck her on the right thigh, causing some scratches and redness. The victim fled and the respondent chased her, repeatedly shouting, 'Get into the bush.' The victim shouted for help and a nearby car slowed down, at which point the respondent fled through the park and back to school.
When interviewed by police,[52] the respondent initially denied being the offender, but eventually admitted that he had hit the victim with the piece of wood. He said his intention was to steal the girl's mobile phone and money. He said he was angry with himself, because he got caught and might get detention.[53]
[52] BOM 123 - 193. Police interview, 22 February 2013.
[53] BOM 187. Police interview, 22 February 2013, 65.
Although the respondent intended to steal property from the victim, he has admitted in more recent times that the offence was sexually motivated and that he had been watching pornography just prior to the offence.[54] The admission of sexual motivation is entirely consistent with the fact that he shouted at the victim to get into the bush. It was a suspicion raised during the sentencing hearing, although the magistrate sentenced the respondent only on the basis that it was an assault with intent to rob.[55]
Aggravated indecent assault - 19 February 2013
[54] BOM 556. Community Supervision Assessment, 19 November 2018, Mr K Jarvie.
[55] BOM 213, 216. Transcript of sentencing proceedings, 11 April 2013.
On 13 November 2013, the respondent was sentenced for one count of aggravated indecent assault and one count of deprivation of liberty arising from the same incident. He was charged with those offences on 26 April 2013. The incident giving rise to the charges occurred on 19 February 2013 between 9.00 and 9.30 am. Again the offending occurred in the same reserve in Balga.
That morning, the respondent took a kitchen knife from his home and rode his scooter to the centre of the park. The respondent stopped near the centre of the park, where he sat and waited. A short while later he saw two young women jogging along the path. One of them, a 19 year old woman, was pushing a pram that was carrying her 2 year old daughter. The respondent watched the women for a short time before approaching them, holding the knife in his right hand. The respondent grabbed the victim around the chest and pointed the end of the knife towards her face.
The respondent attempted to get the victim to follow him, saying, 'Follow me, I won't hurt you or kill you, just follow me.' The other woman tried to pull the victim away from the respondent. The respondent continued to hold the victim around the neck for several minutes, repeatedly saying, 'Follow me.' The respondent then gestured with the knife towards some bushes, saying, 'Come with me, just you.' The victim did not fight the respondent's grip, fearing she would be stabbed. After several minutes, the respondent let go of the victim and held her upper arm tightly, pulling her towards the bushes. The victim tried to give the respondent her phone, but he said, 'I don't want it, just follow me.' The respondent then stood close to the victim and placed his left palm on her stomach, on top of her clothes, whilst still holding the knife in his right hand. He said, 'Let me feel you.' The respondent then tried to drag the victim towards the bushes. The other woman had hold of the victim and was dragged along a couple of metres towards the bushes. The victim began yelling for help, at which point the respondent let go and ran off through the bushes.
When interviewed by police on 26 April 2013,[56] the respondent said he had gone to the park on his scooter and had thrown his scooter into the bush, intending to grab 'them' and pull them into the bush. He said he watched the women for 'a bit'. He admitted the conduct constituting the offences. Initially he denied there was a sexual motivation, claiming he intended to rob the victim, but eventually he agreed the offending was sexually motivated.
[56] BOM 238 - 262. Police interview, 26 April 2016.
The respondent was sentenced to 15 months' detention for that offence.
Aggravated indecent assault and AOBH - 18 December 2015
The last sexual offence for which the respondent was sentenced, on 27 July 2016, occurred on 18 December 2015. Between 9.10 am and 9.30 am that day, the respondent, who was aged 18 at the time, followed a 60-year-old woman as she walked from the West Leederville train station along a footpath near some units in Subiaco. The victim went through a gap in a fence that led to her unit complex. The respondent grabbed her from behind, around her throat and waist. He lifted her off the ground and threw her onto the ground. He then removed the victim's pants and underwear whilst keeping her face down in the sand. The respondent kept the victim on the ground using significant force, kneeing the victim in the ribs. An unknown person shouted out at the respondent, causing him to flee. The victim suffered grazing to her knees and foot, bruising to her throat, cuts to her face and fractured ribs on her left side.
When interviewed by police on 30 December 2015,[57] the respondent initially declined to comment about the incident, but eventually admitted he had attacked the victim, claiming, however, that it was to rob her, and that he had in fact stolen money. No money was actually stolen.
[57] BOM 321 - 336. Police interview, 30 December 2015. The respondent had been interviewed on 23 December 2015, but the interview did not proceed as the respondent was not able to obtain legal advice.
The respondent was sentenced to 22 months' imprisonment for the aggravated indecent assault. No separate penalty was imposed for the offence aggravated assault occasioning bodily harm, as the bodily harm was one of the aggravating circumstances of the aggravated indecent assault.
Respondent's account of the offending
The respondent was interviewed by Dr Wynn Owen on two occasions. On the first occasion, he said he could not remember anything about the sexual offending in 2012 in 2013. On the second occasion, he made some general statements about the 2012 sexual offending, saying, 'sometimes I'd be drunk or stone, I wanted to pleasure myself, have fun, I didn't really plan back then'.[58]
[58] BOM 531. Psychiatric Report, 24 November 2018, Dr P Wynn Owen, 5.
When interviewed by Mr Jarvie, the Respondent said in respect of the indecent assault that occurred on 12 September 2012, that he had little memory of the incident, but he remembered that, at the time, he was consuming around 'a stick' of cannabis per day and frequently consuming alcohol.[59]
[59] BOM 556.
In relation to the offence of 19 December 2013, the respondent told Mr Jarvie that he was viewing pornography just before the offence. Similarly, he admitted watching pornography immediately prior to the offending on 22 February 2013 and 18 December 2015.
In relation to the defence of 18 December 2015, the respondent told Mr Jarvie that he followed the victim after 'viewing pornography on his phone and deciding to pleasure himself'.[60] He also said that, prior to the offending, he had been drinking and arguing with his friends over financial issues related to a drug debt, and that he went back to socialising with his friends and drinking after the offence.
[60] BOM 556.
The respondent gave similar accounts about the lead up to the last offence in his interviews with Dr Galloghly, Dr Wojnarowska and Dr Wynn Owen. In each instance, he said in effect that he needed sexual pleasure. He told Dr Wynn Owen that he had been drinking with family and friends during the day and after drinking with friends, he wanted to be alone, so he went for a walk. He said that he recalled that he was intoxicated and angry, having sworn at his friends. He also said that he had been 'watching a little bit of porn'. He said that when he noticed the victim, he felt a sexual urge and, in that moment, decided to assault her, without considering the consequences.
The respondent told Dr Wynn Owen that he was not on the train on which the victim had travelled. However, his account to Dr Wojnarowska suggests otherwise.
The respondent told Dr Wojnarowska that, the night before the offence of 18 December 2015, he smoked a lot of cannabis and drank alcohol with his family and friends. The drinking and smoking and extended to the next day. After getting some sleep, he met with a friend. He had an argument with that friend and went for a walk to clear his head and get more alcohol. He said he have been watching 'lots of pornography the night before and felt sexually aroused'. Dr Wojnaroswka describes the balance of the respondent's account as follows:[61]
He said that when he boarded the train he did not have any specific direction in his mind and did not plan to follow or assault any female: 'not much was going on in my head, I just wanted to satisfy myself'. He said while standing in the carriage he realised that he was sexually aroused but did not intended to rape anyone. You said that when he spotted the victim, an idea to follow her and 'see what happens' came to his mind. He denied it targeting the victim because of her age; according to Mr Warmdean 'she was just there, standing by herself'.
He didn't intend to hurt her physically and said that the injuries she received were inflicted to secure her compliance. He denied that he used more force than it necessary to send you a much weaker and much older than him female [sic].
[61] BOM 504. Psychiatric Report, 10 November 2018, Dr G Wojnarowska, [7.3] - [7.4].
Significantly, Dr Wojnarowska states that when questioned about what his intention was when he held the victim on the ground with her pants and underwear down, 'he admitted that at that point he intended to rape her'.[62] He said he did not think about the possible repercussions.
Pattern and propensity
[62] BOM 504. Psychiatric Report, 10 November 2018, Dr G Wojnarowska, [7.5].
It is clear from the circumstances of the offences and from the respondent's most recent accounts that there has been a pattern to his sexual offending. He committed each of the offences for sexual gratification, at a time when he was sexually aroused, usually after watching pornography. Even the assault with intent to rob was sexually motivated. All of the offences were opportunistic, but also predatory in nature. There was an element of rudimentary planning in most instances. The offences were committed in public places. There were few persons around, but he was not deterred from attacking the woman who was jogging with her sister or the woman with dogs.
Significantly, there has been an escalation in the seriousness of the offences. Generally, each successive offence involved a more overt and serious sexual assault and a greater degree of violence. There has also been a pattern of using weapons to intimidate his victims, including knives which were quite dangerous. Although on the last occasion he did not use a weapon, he used brute force to overcome a much smaller and weaker victim, causing her significant injuries.
The repetition and nature of the offences, and the fact that he has continued to offend despite being convicted and serving periods of detention for earlier offences, demonstrated that the respondent has a propensity to commit serious sexual offences in the future, particularly in circumstances in which he is intoxicated and has become aroused by pornography. Further, the pattern of escalation and his admission that he intended to rape the last victim indicate a propensity to commit a sexual offence that is more serious than those he has committed so far, although the last incident is likely to have involved a more serious offence if the respondent had not been disturbed.
The respondent has continued to commit sexual offences despite expressing some understanding in the past of the impact of his offending on his victims and the causes of his offending. His history indicates that having some insight into his offending would not be an adequate protective measure to prevent him from offending again in a similar way.
However, the respondent has taken steps during his most recent period of incarceration to address the causes of his offending by receiving treatment.
Rehabilitation programs
The VOTP
The VOTP is a group treatment program for male offenders who are at high risk of committing violent offences. It consists of 124 sessions (310 hours) and addresses emotional control and stress management, problematic thinking, problem solving, substance use, and managing relationships. Although it is a group treatment program, individual treatment goals are identified for participants. The program explores the factors that contribute to cycles of violent and aggressive behaviour.
The report indicates that Mr Warmdean made some gains through his participation in the program, but further counselling and treatment programs are required to address issues associated with his offending. The areas in which 'shifts' were identified included emotional regulation and impulsivity, insight into violence, in particular the lifestyle and factors that contribute to a cycle of violence, substance use, interpersonal relationships and the use of weapons. The report states:[63]
Mr Warmdean recognised that problematic thoughts and feelings would place him at high risk of reoffending and he was aware of the need to talk about problematic issues and emotions and not avoid them. He identified thoughts and feelings that would be high risk which were things around frustration, this respect and anger. In addition, Mr Warmdean identified that underneath feelings of anger had been betrayal, hurt, feeling belittled and powerless. He developed a long list of strategies for managing these situations which included: writing, listening to music, counselling, exercise and art.
[63] BOM 471. VOTP Program Completion Report, 6 November 2017, 7.
The report also states that the respondent was aware that he needed to reduce his alcohol intake or cease altogether in order to reduce his risk of reoffending. However, the facilitators were of the opinion that he would need support when released into the community to address his substance use. It was recommended that he be included in the future substance abuse treatment programs.
Significantly, the report stated:[64]
Mr Warmdean's index offence and history of offending indicates sexually motivated offences. Sexual offending and deviant sexual interests are not addressed in the VOTP. It is noted that Mr Warmdean is scheduled for participation in the Sex Offending (high intensity) are program, SOTP. Facilitators are of the opinion that Mr Warmdean will benefit from inclusion in this program. Inclusion in the SOTP will assist Mr Warmdean to build upon skills (emotional, cognitive and behavioural) learnt in the VOTP.
The ISOTP
[64] BOM 472. VOTP Program Completion Report, 6 November 2017, 8.
The ISOTP program targets 'high risk and high need male offenders, where participants focus intensively on their sex offending behaviour (criminogenic needs) and victim issues, identify offence pathways and develop detailed self-management plans to assist them to reduce reoffending'.[65]
[65] BOM 475. ISOTP Program Non-completion Report, 12 July 2018, 1.
As I said earlier, the respondent attended 53 of the 107 sessions, but was not able to continue through no fault of his own. The summary at the conclusion of the report states that he was able to develop a stronger understanding of the reasons why he offended and what influenced his decisions to do so. He is said to have participated in most discussions and activities and was observed to have developed appropriate and respectful relationships with both group participants and facilitators alike. In short, the respondent was deemed to have engaged to an adequate standard. The facilitators were of the view that the respondent would benefit from further clinical interventions.[66]
[66] BOM 482. ISOTP Program Non-completion Report, 12 July 2018, 8.
There are certainly indications in the body of the report that the respondent was able to identify a number of factors that had precipitated or contributed to his offending, including anger, exposure to pornography, alcohol and cannabis use, and violence against his peers as a result of jealousy. He also spoke of feeling shame and guilt after committing the last sexual offence.
However, there are also concerning aspects of the respondent's behaviour during the program revealed in the report, which raise concerns about the level of his engagement and his manageability. The report states:[67]
Mr Warmdean often presented as tired and sleepy, which when explored, he would explain that he stays up late every night watching TV and listening to music. On multiple times the facilitators encouraged Mr Warmdean to be more responsible in his sleep patterns, but he displayed an external response is that it was the facilitators duty to keep him awake through turning the heaters down, moving around the room more, swapping seats if able and standing up. This remained consistent throughout his time on the program.
[67] BOM 479. ISOTP Program Non-completion Report, 12 July 2018, 5.
Further, the facilitators noted that at times his answers were 'vague and non-specific'. Perhaps of greater importance in terms of potential issues with his management under supervision:[68]
During several exercises and presentations, Mr Warmdean would at times be disruptive and dismissive with other participants where he would engage in 'horseplay' and laughter. When this was challenged, Mr Warmdean would display dismissiveness through his statements such as 'I don't give a fuck about anyone else, I just do my own thing, if I want to laugh, I will fucking laugh'. Despite this, Mr Warmdean was observed to challenge other participants when they were being equally disruptive, and it was noted that he was unable to you all recognise he was behaving in the same manner.
[68] BOM 479. ISOTP Program Non-completion Report, 12 July 2018, 5.
It is apparent that, despite making some progress in the ISOTP, the respondent has considerable work to do in that program to meet his treatment needs. Further, he will need to demonstrate a significant improvement in his discipline if his treatment gains and his commitment to compliance with supervision in due course are to be regarded as more than superficial.
Respondent's recollection of material learned
Dr Galloghly, in his interviews with the respondent on 29 August 2018 and 26 October 2018, for the purposes of formulating a management plan for the respondent, formed the opinion that the respondent had assimilated at least some of the knowledge he had acquired in both the VOTP and ISOTP courses.[69] From the VOTP, he said the respondent was able to identify some of his cycle of offending and some of his treatment needs. He was able to identify protective measures, such as getting employment and abstaining from alcohol, and perhaps that entering into a healthy relationship would be important for him. In relation to the ISOTP, Dr Galloghly said:[70]
I was also quite impressed by Mr Warmdean when I asked him myself about his understanding of treatment and risk, that he was able to actually articulate an understanding of some of the relevant issues that he did address in that program. Such as - as I spoke about before - that he - that he had a high sex drive. That he was viewing pornography before he offended. That cannabis use actually exacerbated his sex drive. … That alcohol use is problematic. That he has a peer circle that's involved in antisocial activity which he will find hard to navigate in the future. So, he was able to articulate quite a significant understanding of his risk issues and needs, especially given his level of reported capacity intellectually.
[69] ts 93.
[70] ts 94.
Dr Galloghly also noted that the respondent was able to articulate a significant degree of understanding of the impact of sexual offending on a victim. In broad terms he said that previously he did not really know that what he was doing was wrong, but having now received treatment as an adult, he recognised that he could no longer 'accost strangers or females without their consent'.[71]
[71] ts 96.
However, Dr Wynn Owen noted in his report that, when he interviewed the respondent on 22 and 23 October 2018, he could recall little about the ISOTP program unless prompted, and, while he could recall the importance of what he learnt in the VOTP, he could not elaborate properly on the concepts.
This confirms the conclusion that the respondent still has a great deal of work to do. While he may recall some concepts and broad strategies to avoid violent sexual offending in the future, he has yet to demonstrate an adequate understanding of the practical manifestation of risk factors and the practical implementation of preventive strategies.
What has been ascertained from the respondent in interviews for these proceedings also highlights the need to have regard to the recommendations in the PATCHES report in respect of a tailored approach to treatment to take into account the cognitive and functional deficits identified by the authors, to which I will now turn, before dealing with the psychiatric evidence and the assessment of the respondent's risk.
The FASD assessment
The respondent was interviewed and examined by Dr Fitzpatrick, a paediatrician, and subsequently assessed by Dr Pestell, a clinical neuropsychologist on 11 July 2018 and 20 September 2018 at Acacia prison. The findings made by them are relevant to the risk assessment made by Dr Wojnarowska and Dr Wynn Owen. In the course of their evidence, I raised the question of whether there was evidence to support one of the criteria in the FASD assessment. I will deal with their responses to that issue in this section.
FASD Report
The primary purpose of the PATCHES assessment was to determine whether the respondent met the criteria for a diagnosis of FASD. Such a diagnosis identifies neuropsychological deficits which are believed to have occurred as a result of the person's exposure to alcohol in-utero, because of the mother's consumption of alcohol while pregnant. Such exposure can result in damage to the central nervous system and impair pre-natal and postnatal growth. The neurological differences (from normal neurological development) can result in functional impairment in areas such as cognition, memory, language, attention and executive functioning.
More generally, Dr Wojnarowska noted that she would perceive the respondent's general preoccupation with sexual themes as within the norm for a young man his age.
Sexual drive
The respondent has been inconsistent in his description of his sexual drive. He told Dr Galloghly that he had a high sexual drive, yet he told Dr Wojnarowska that he did not think he had a very high sex drive. Dr Wojnarowska noted that a preoccupation with sex and a high sex drive would be expected of a man the respondent's age. Dr Wynn Owen considered that he respondent's level of sexuality appeared to be normal. He said that the respondent's offences 'seemed much more to do with inability to manage underlying urges at times of stress and was disinhibited through alcohol … and for other reasons, rather than hypersexuality, per se'.[97]
Risk assessment
[97] ts 84.
Both Dr Wojnarowska and Dr Wynn Owen used actuarial and structured clinical assessment instruments to assess the respondent's risk of committing a serious sexual offence in the future and the steps that can be taken to minimise that risk.
Three of the instruments are well known in cases dealt with under the Act. It is sufficient to refer to Dr Wojnarowska's explanation in her report:[98]
Actuarial Instruments use mainly static risk factors meaning unchangeable. A core aspect of these instruments is that scores obtained on individuals can be related to statistical reference data. It involves consideration of a limited number of factors that are combined according to a fixed and explicit algorithm. It creates a statistical profile of the person that may be compared to known groups of recidivists and non-recidivistic sexual offenders. The actuarial instrument used in this assessment was Static 99-R (Hanson & Thornton) and the Hare Psychopathy Check-list - Revised (PCL-R) (Hare 1991 and 2002). The Static 99-R is designed to assess the long term potential for sexual recidivism among adult male sex offenders. The PCL-R assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The score obtained is an important component of other risk assessment tools including Structural Clinical Guides. Structural Clinical Guides in contrast use both static and dynamic risk factors. They require clinicians to consider different factors which impact upon the assessment of risk.
[98] BOM 518.
The instrument used by both psychiatrists in the category of a structured clinical judgment framework was the Risk for Sexual Violence Protocol (Hart, Kropp and Laws, 2003) (RSVP), which relies on both historical factors and variable dynamic factors which inform the offender's ability to change.[99]
[99] BOM 518.
Dr Wojnarowska also used the 3-Predictor model, which she explained involved:[100]
[A] retrospective analysis of the file data of 1,838 adult male WA Indigenous offenders, who since 1987 have been identified as requiring either a violent or sexual offender program. The results of the study indicated that three factors that best predict sexual reoffending are unrealistic long-term goals, unfeasible release plans and poor coping skills prior to release.
Static 99-R
[100] BOM 519.
The applicability of the Static 99 instrument to Aboriginal offenders in Western Australia has been questioned in the past because of the lack of data that would confirm it was capable of predicting recidivism within that population. Dr Wynn Owen explained that those using the instrument are still relying on a small study that found that Static 99 was 'fairly accurate in predicting violent offending' within the group of Western Australian indigenous offenders, and, 'if anything, underestimated the risk of future sexual offending in that cohort'.[101] Dr Wojnarowska also noted in her report that the results from Static 99‑R underestimate the risk for the indigenous population.
[101] ts 73.
Dr Wojnarowska described the respondent's result as being within the 'high risk' category. Dr Wynn Owen described it as being in the 'well above average risk range'. He said that the result does add to the overall assessment in this case, because it is a 'very high score'. The review of Static 99 in 2016 revealed that there was a higher likelihood that the estimation was accurate when an offender had a higher score.[102]
PCLR
[102] ts 74.
The respondent's score on this instrument was in the low-moderate range, which was well below the threshold for a diagnosis of psychopathy.[103] Dr Wojnarowska said that the respondent's score reflected his tendency to impulsivity, poor behavioural control, early behavioural problems, juvenile delinquency and revocation of conditional release. She noted that the respondent actually scored quite low in the aspects that measure interpersonal and effective functioning. However, he scored in the moderate range in respect of social deviance, which is consistent with the diagnosis of Antisocial Personality Disorder
RSVP
[103] BOM 519. Psychiatric Report, 10 November 2018, Dr Wojnarowska [26.3.2]. ts 48.
In applying the RSVP, both Dr Wojnarowska and Dr Wynn Owen found that the following factors were present in the respondent's history that inform the respondent's risk of sexual reoffending:
(1)Chronicity of sexual violence: This refers to the persistence and frequency of sexual violence, which were present in the respondent's history. Dr Wynn Owen noted that frequency of sexual violence, in particular, is a risk factor most reliably associated with recidivistic sexual violence among offenders.
(2) Escalation of sexual violence.
(3) Physical coercion in sexual violence.
Dr Wynn Owen also considered that diversity of sexual violence was present in the respondent's selection of victims, although he acknowledged it was likely to reflect an indiscriminate approach due to his impulsivity and inability to manage his sexual drives. Dr Wojnarowska did not consider that this factor was present.
On the other hand, Dr Wojnarowska thought that the factor of psychological coercion in sexual violence was possibly present. That factor was not addressed by Dr Wynn Owen.
In relation to dynamic factors, Dr Wojnarowska and Dr Wynn Owen identified the following factors as present and relevant to the respondent's risk of re-offending and the therapeutic interventions that can be taken to reduce that risk.
Problems with self-awareness
Dr Wojnarowska said that this is 'quite outstanding in terms of his presentation'. The deficits are associated with his upbringing, his life experiences and his 'modest cognitive functioning'.
Dr Wynn Owen said, in his report:[104]
Mr Warmdean does not demonstrate a good understanding of his risk scenarios or other factors (such as emotion in particular anger/interpersonal conflict/intoxication) which put him at risk of sexual offending. This risk factor is regarded as an important dynamic contributor to future risk of sexual offending
Problems with stress and coping
[104] BOM 540.
Dr Wynn Owen explained:[105]
Mr Warmdean's index offending occurred in the context of chronic and acute stressors, loss/grieving and interpersonal conflict on the day. This factor is associated with an increased risk of general violent offending and in offenders who resort to sexual thinking/sexual fantasy to manage stress is associated with an increased risk of sexual offending
[105] BOM 540.
Dr Wojnarowska referred to the fact that, in the past, the respondent had used alcohol and cannabis, and perhaps pornography, to alleviate unpleasant feelings associated with stressful situations. All of those factors were linked to his sexual offending.
Problems resulting from childhood abuse
The respondent has never received counselling in this area. Dr Wojnarowska said it is an important factor that needs to be noted for future treatment.
Dr Wynn Owen said in his report that this risk factor is associated with an increased future risk of criminality, general violence and sexually violent offending.
Problems with substance abuse
Dr Wynn Owen noted that the respondent had not articulated any specific strategies to avoid drug and alcohol use on release. He considered that the treatment intervention he has received so far in that domain has been minimal, and the risk remains a significant outstanding treatment need.
Dr Wojnarowska also considered it a significant risk factor.
Problems with intimate relationships
Although it is not surprising that the respondent has not been in a long term relationship, given his age and the fact that he has been incarcerated for significant parts of his young life, Dr Wojnarowska noted that he has 'major communication problems' and she anticipated that he will have problems initiating and maintaining long term relationships (which would be protective factors in reducing his risk), if this is not addressed during treatment.[106]
Problems with planning
[106] ts 49.
This and the next two factors affect the respondent's manageability, should he be released into the community.
Within this domain, Dr Wojnarowska noted that the respondent is very impulsive and has problems with emotional regulation. She said:[107]
[H]is brain is still incredibly immature at the age of 21 and he has in addition a diagnosis of FASD, which we do know that it affects frontal lobe where the affective and behavioural regulation takes place. … [It] impairs overall his brain functioning.
[107] ts 50.
Dr Wynn Owen said:
[T]his is in relation to Mr Warmdean's ability … having offended and having … received some input into how he should manage his life to avoid future offending, to then be unable to avoid reoffending.
So, to make plans which fail, or to not plan in a manner that enables him to avoid situations which might lead to reoffending …
He said that this was associated with problems with supervision and problems with treatment. The respondent had been provided with supervision and other 'inputs' in the past, and despite articulating that he wished to avoid offending, and how he might do that, he had returned to a pattern of offending.
Problems with treatment
Dr Wynn Owen identified this as a risk factor. He pointed to the fact that the respondent had previously received treatment with respect to both offending and drug and alcohol use, but did not demonstrate learning, returning to his pattern of offending.[108] Dr Wynn Owen considers that the specific issues with learning, particularly memory and language impairment, would no doubt have contributed to the failure to rehabilitate, and the respondent will require a tailored approach to any future treatment if it is to be effective.
[108] The treatment was particularized in Dr Wojnarowska's report. It included 19 counselling sessions in November 2013 - March 2014; four “motivation to change” program sessions (a drug rehabilitation program) in May 2013; six emotional management sessions at Hakea Prison in August 2013 - September 2013.
Significantly, untreated offenders are reported to be more likely to offend in future.
Dr Wojnarowska thought this domain was possibly a risk factor, as the respondent had not attended offence specific treatment, other than the ISOTP, which was interrupted. She considered it was hard to say at this point how the counselling would develop, but she understood that his psychologist is quite positive about developing a further relationship.
Dr Wojnarowska also confirmed, in cross-examination, that the respondent has demonstrated a very positive attitude to counselling and is motivated to engage.[109]
(viii) Problems with supervision
[109] ts 68.
Again, Dr Wynn Owen identified this as factor that is present, whereas Dr Wojnarowska considers it a possibility. Dr Wynn Owen pointed to the respondent's previous breaches of supervision, and the fact that the PATCHES Report identifies a specific need for assistance for him to be able to comply with supervision.
Dr Wojnarowska acknowledged that, historically, there were always problems with supervision, but she pointed out that one needs to take into consideration the fact that he has never been supported. While that is so for parts of his childhood, the history I have outlined above indicates that his father and stepmother made some efforts to provide support, and he was provided with various forms of support (perhaps not sufficient) while under supervision. Nevertheless, Dr Wojnarowska was of the opinion that while there could be a problem, with more supports that one would anticipate if he were released on a supervision order, he might be manageable.
3-Predictor model
Dr Wojnarowska explained that this model was devised specifically in relation to people of Aboriginal descent in Western Australia. It appears that its use in predicting risk of reoffending has been limited, but she decided to add the model because of the respondent's 'very young age and his indigenous roots'. It identifies three factors as relevant to risk: unrealistic long-term goals; unfeasible release plans; and poor coping skills before release.
Dr Wojnarowska said that, in relation to the first factor, she thought that the respondent has 'some realistic appraisal of what his future might be like', and he understood what his reporting and treatment obligations would be. Therefore, she thought he might not have major difficulties in that area. In terms of unfeasible release plans, the fact that he does not have suitable accommodation (which I will deal with below) is a very important factor. Finally, she is of the opinion that the respondent has displayed poor coping skills. Although it is specified to be 'before release', she said it is necessary to take into consideration the fact that the respondent has functioned in a prison in a highly structured environment, so he has 'never had an opportunity to really develop coping skills that would be relevant into his life in the community'.[110]
Risk scenario
[110] ts 52.
As to the circumstances and manner in which the respondent is likely to commit a sexual offence, if he were not subject to constraints, Dr Wojnarowska said she would not expect any deviation from the way he offended in the past. The offence is likely to be committed against a stranger who is vulnerable and is likely to escalate to sexual penetration if he is not stopped by a passer-by. The scenario is likely to arise from circumstances in which he is lonely, anxious or bored, and has been watching pornography, which would increase his sexual preoccupation, or he may become angry from conflict with family or friends. The main driving force would be his sexual frustration and anger associated with his personal circumstances, facilitated by intoxication from alcohol or drugs, to which he will have resorted to deal with his boredom, stress or frustration.[111]
[111] BOM 522 - 3. Psychiatric Report, 10 November 2018, Dr Wojnarowska [27.1] - [27.6]. ts 51.
Dr Wynn Owen said that the identification of a risk scenario is part of the application of the RSVP, and the most likely offence is usually 'a repeat of a previous offence unless [there is] a very clear pattern of escalation in which case one might pre-empt escalation'.[112] In his opinion, the most likely offence to occur is 'the assault of a stranger in an opportunistic way on the background of dealing with stress, potentially through such pathological coping mechanisms as drug and alcohol use [and] use of pornography. The pattern has already been established.'[113]
[112] ts 76.
[113] ts 76.
That pattern, in my opinion, included the respondent's intention to sexually penetrate his last victim. I am satisfied, having regard to the evidence of both psychiatrists, that the serious sexual offence he is likely to commit is of that kind.
Overall opinion
Dr Wojnaroska
Dr Wojnarowska said that the results of her clinical assessment and the findings from the tools that she applied are consistent with the respondent having a high risk of reoffending in a sexual manner if he is not subject to an order under the Act. In fact she described his risk as being in the 'very high' category. Of particular significance is the fact that he has not completed offence-specific treatment. She also considers that he still requires a lot of treatment in the area of his alcohol and cannabis use.
In the opinion of Dr Wojnarowska, for those reasons, the high risk could not be adequately managed on a supervision order in the community at this point in time.
Dr Wynn Owen
Dr Wynn Owen, in essence, was of the same opinion. He said that it would be very difficult to manage the respondent's current risk in the community. Key to the adequate management of the respondent's risk is therapeutic intervention in an intensive sex offender treatment program, which the respondent would not be able to access in the community. As Dr Wynn Owen noted:[114]
Those who complete sex offender treatment programs that have been deemed comparable have been found to have a considerably lower risk of sexual reoffending than those who have not. There was clearly a large component of the course that Mr Warmdean was unable to complete … through no fault of his own.
Recommendations for future treatment
[114] ts 77.
The recommendations from both psychiatrists for further therapeutic intervention and risk management were as follows:
(1)The respondent must be given the opportunity to reengage with the ISOTP. The neuropsychological deficits that were identified in the PATCHES Report would not prevent him from learning and making therapeutic gains in the program, although consideration will need to be given to tailoring the delivery of the program to take into account his deficits in language and memory. Otherwise, his modest cognitive abilities are at an adequate level to enable him to learn from the program and to put what he learns into effect.
(2)The respondent should receive individual counselling. Attention should be given to providing him with assistance to mitigate some of his deficits in memory, learning and interpersonal skills.
(3)A component of further treatment should address his abuse of alcohol and substances, as this remains an outstanding treatment area.
(4)Dr Wynn Owen considered that some culturally appropriate mentoring (ideally from an Aboriginal mentor) would be a very important component of what is developed by way of treatment to address his neuropsychological deficits, because pro-social modelling would be 'extraordinarily important in a man [for whom] that modelling has been absent throughout his life in a prosocial manner'.[115]
(5)Dr Wojnarowska was of the view that the respondent should be prepared for reintegration into the community by being moved into a less restricted area while he is still in custody, if that is possible. I understood Dr Wojnarowska to be referring to a self‑care section of a low security prison. That may not be possible in the respondent's case, but it is something that should be explored.
(6)There is a need for the respondent to obtain stable and supportive accommodation. This is extremely important, given the respondent's age and immaturity, and his lack of social supports.
[115] ts 89.
In her report, Dr Wojnarowska had suggested antilibidinal hormonal treatment as part of the overall treatment plan. However, in evidence she said she was very ambivalent about it.[116] She said:
So there is something to consider, however, given his very young age and the fact that he is overweight and he already has a propensity to develop Diabetes II, I'm not sure whether I would strongly recommend pharmacological treatment at this point.
[116] ts 54.
Although the matter was not explored in detail, there are known to be potential health risks in the use of antilibidinal medication.
Dr Wynn Owen said that he would only consider antilibidinal treatment in the case of somebody who clearly had sexual deviance and hypersexuality. He did not find the respondent to be sexually deviant and he thought his level of sexuality appeared normal for a man of his age, both at the time of offending and now.[117]
[117] ts 84.
On balance, I am not satisfied that antilibidinal treatment should be considered a necessary component of any treatment plan for the respondent. The preponderance of evidence supports the conclusion that it is the respondent's social functioning, his attitudes, his substance use and the learning and implementation of strategies to reduce his risk of reoffending that need to be addressed by the treatment and management plans.
Other reports
Proposed DSO Management Plan
As I noted earlier in these reasons, Dr Galloghly was of the view that the respondent was able to demonstrate some broad gains from the VOTP and the incomplete ISOTP.[118] In particular, the respondent said that he now recognised there are significant effects on his victims. He also indicated that he felt some shame for his actions.[119]
[118] See [128] - [129] above.
[119] ts 96.
Another aspect of the respondent's insight was his realisation that managing his interactions with his family and friends will be his biggest challenge in complying with any orders that may be made for his supervision, because of their own substance abuse issues and antisocial behaviours.
In summary, Dr Galloghly considered the respondent's understanding of his offending to be basic, but still significant.
Dr Galloghly applied an instrument called STABLE-2007 to identify dynamic risk factors that will inform the respondent's treatment needs and the management of his risk of serious sexual offending. The factors include his limited social supports, his poor history with compliance with supervision and his incapacity at this stage to develop stable relationships. As I said earlier, such relationships can be protective factors in preventing sexual offending. In terms of pro-social support, the respondent identified his stepmother as the only person who could fulfil that role. He said he has a good relationship with her.
Dr Galloghly is also of the opinion that the respondent has significant treatment needs in the domains of substance abuse, general emotional regulation and impulsivity, and sexual self-regulation, including his use of pornography. Given the respondent's youth, his limited social support, his negative peer influences, the lack of structure and long-term planning in his life, and the diagnosis of FASD (or at least neurodevelopmental deficits, even if the cause is undetermined), the respondent will require multi-agency support, including counselling, to manage his risk and address his needs.
Although the respondent still has outstanding substance abuse treatment needs, Dr Galloghly was of the view that additional 'programmatic intervention' in that regard is not recommended, as it could become 'cognitively overwhelming' for the respondent.[120] Many of the matters that would be dealt with in a substance abuse treatment program would be dealt with in the ISOTP. Otherwise, issues concerning the respondent's substance abuse can be dealt with in counselling.
[120] ts 103.
At the time of the hearing, the respondent had completed five counselling sessions. His counsellor, Ms Morrison, told Dr Galloghly that the respondent had engaged well so far and was 'open to exploring his offending and talking about [it] and what his needs were moving forward'.[121]
[121] ts 96.
The respondent has plans to gain employment when he is released from prison. He would like to work in the mines. That is not likely to be a realistic objective for a period of time, if he is to be subject to a supervision order upon release.
Community Supervision Assessment
In the Community Supervision Assessment, dated 19 November 2018, Mr Jarvie discussed in some detail the issue of accommodation to which the respondent could go in the event that he is released on a supervision order. It is necessary for any such property to be assessed for its suitability, having regard to the respondent's risk of committing a sexual offence and what is necessary to monitor him and manage that risk. First, of course, there must be a place available. Mr Jarvie provided an update at the hearing.
The property that had been in contemplation was the house that had been leased by the respondent's father, who is now deceased. There is a complicated history concerning the way in which the property may have been available to the respondent. It is not necessary to elaborate on that, because it would appear that the property is no longer available as a result of legal proceedings that, by now, should have resulted in the owner having recovered vacant possession of the property.
The respondent was referred to United Care West (UCW), which has a DSO supported accommodation program that has six houses available. However, there are two difficulties for the respondent. The first is that he may be receiving an inheritance from his father's estate. The size of the inheritance was uncertain at the time of the hearing, although there was a possibility it could be substantial enough that the respondent would not qualify for accommodation from UCW, which has a means limit for eligibility. Secondly, it would appear that none of the properties available through UCW may be available because they have been allocated to persons being dealt with under the Act who have priority over the respondent at this stage.
Mr Jarvie said that a number of other hostels had been approached, but at this time none was able to assist with accommodation for the respondent.
Therefore, there is an obstacle to the release of the respondent on a supervision order, if it was otherwise appropriate, because of the unavailability of suitable accommodation. This has been a problem in cases under the Act for some time, and has been the subject of comment in other cases. Given that the measures that are taken under the Act do not serve a punitive purpose, but are for the protection of the community, and given that the court is required to make the order that is least invasive of the right of the offender to be at liberty, as long as it provides adequate protection of the community, the Executive has a responsibility to assist persons who might otherwise be suitable for release on a supervision order to find appropriate accommodation. I am satisfied that appropriate measures have been taken by the Department in this case, and it is not necessary for me to comment further.
As I have concluded that the community could not be adequately protected at this stage by the making of a supervision order in respect of the respondent, apart from the issue of accommodation, it is not necessary to examine that issue further. It is likely to arise, however, in one year's time.
I note that there is another issue that can affect the suitability of accommodation when a person is released on a supervision order, and that is the availability of suitable social support for the offender in the community. I was informed that there has been a feud between the respondent's siblings and his stepmother, Ms Hayes, who is providing support. That could have the effect of undermining any stability in the respondent's circumstances, were he to be released. It is to be hoped that problem is resolved for future purposes.
Mr Jarvie informed the court that a process of referral of the respondent to the National Disability Insurance Scheme (NDIS) has commenced. The basis of the referral is the PATCHES Report, in particular the diagnosis of FASD. The NDIS will provide funding to eligible persons who have disabilities to be provided with support in various ways under a disability plan. Eligibility is the first step. As Mr Jarvie explained, once the referral has been submitted, the NDIS will determine whether the respondent would be eligible for any funding under the NDIS. That is likely to depend on the assessment that is made of the level of his cognitive disability and his level of functioning. If he is deemed eligible under the NDIS, then the matter would move to the planning stage. The amount of funding that might be available will vary, depending on his circumstances. Mr Jarvie's experience in the one case he has dealt with involving the NDIS was that the time frame for all of that to happen is approximately 12 to 16 weeks.
Finally, Mr Jarvie had prepared draft conditions for a supervision order, if the court were to consider such an order appropriate. Those conditions seek to provide for monitoring, control, supervision and treatment of the respondent, having regard to his particular circumstances. A number of the conditions are the standard conditions required by the Act, including electronic monitoring. Of course, electronic GPS monitoring will inform the authorities where the offender may be, but not who he is with or the particular circumstances in which he finds himself. The proposed conditions (numbering 63) provide for a curfew and prohibitions in respect of places the respondent can attend and in respect of his consumption of substances.
Conclusions
Unacceptable risk
Taking into account all of the evidence to which I have referred, which is cogent, and having regard to the matters under s 7(3) of the Act, I am satisfied to a high degree of probability that there is an unacceptable risk that the respondent would commit a serious sexual offence if he is not subject to detention or a supervision order. He has shown a persistent pattern of offending over a number of years which reveals a propensity that he will commit a violent sexual offence against a vulnerable female stranger in a public place. The impact on his victim in the event that he were to commit such an offence would be traumatic and enduring. The danger he poses is manifest from his previous offending. It is reinforced by his antisocial personality and problematic behaviours, including substance abuse.
I am satisfied that the risk of the respondent committing a serious sexual offence is high and that the scenario is likely to be as described by Dr Wojnarowska and Dr Wynn Owen.
The deterrent effect of the sentence the respondent has served could not reduce that risk if he were to be released untreated. Although the sentence was longer than any previous custodial sentence, and he has served it in an adult prison, the failure of deterrence in his case in the past, his entrenched antisocial traits, and the numerous risk factors identified in the risk assessment by both Dr Wojnarowska and Dr Wynn Owen, satisfy me that the adequate protection of the community requires that the respondent be detained or subject to a supervision order.
Continuing detention order or supervision order
I am satisfied on the evidence of Dr Wojnarowska and Dr Wynn Owen that the respondent's risk of committing a serious sexual offence could not be adequately managed and controlled in the community at this time. Apart from the unavailability of suitable accommodation, I am not satisfied that the conditions of the proposed supervision order, as onerous as they would be, or any other reasonable conditions, would reduce the respondent's risk sufficiently to adequately protect the community.
More particularly, I am not satisfied that the respondent has the capacity at this time to comply with all of the conditions, including the requirement for supervision.
I take into account that the respondent has taken steps to rehabilitate. His commitment to receiving treatment in order to reduce his risk of reoffending was evident from his request to be denied parole so that he could engage in the VOTP and later in the ISOTP. It is also to his credit that he wished to remain in prison to gain employment skills for when he is eventually released. I am satisfied that the respondent has engaged genuinely in his treatment, and that he has made some gains in his insight into the impact of his offending, the causes and what he needs to do to avoid relapsing.
However, the evidence is clear that the gains the respondent has made are still well short of what will be necessary to reduce his risk from an unacceptable level if he were to be released on a supervision order. There are aspects of his behaviour during the incomplete ISOTP that suggest he could be difficult to supervise. The anti-police attitude that was noted during the ISOTP in the early part of 2018[122] is of concern, given that the respondent would be subject to monitoring by a police unit if he were subject to a supervision order. The courts experience is that a good relationship between an offender on a supervision order and the police is an important factor in whether the offender will complete the period of supervision successfully.
[122] See [69] above.
The respondent will need to demonstrate over the next year that his attitude has changed in that regard. He will also need to demonstrate that he has the discipline to not be disruptive or dismissive during the ISOTP, which will inform whether he is likely to comply with the standard conditions of a supervision order. He also needs to demonstrate that his commitment to individual counselling can be maintained over a lengthy period. He has only recently commenced. Apart from the ISOTP, there should be a focus on consolidating the insights the respondent has gained and enabling him to implement strategies in a practical and realistic manner to avoid behaviours and circumstances that would put him at risk of embarking on the cycle of serious sexual offending.
Given the respondent's current situation, I am not satisfied that his risk could be adequately managed in the community.
In any event, the unavailability of suitable accommodation would preclude the making of a supervision order. Stable accommodation is a necessary pre-requisite to the management in the community of a person who is found to be a serious danger to the community. Without stable accommodation the effectiveness of community supervision is greatly reduced and the potential for the respondent to fall into dangerous patterns of behaviour is far greater.
The respondent is still very young. Notwithstanding the impediments that may be presented by his neuropsychological deficits, it would be expected that with time he will mature and his risk of serious sexual offending will diminish. However, given what is known of him, as disclosed in these proceedings, that will not happen in the short term and certainly not without treatment.
What needs to happen next
Over the next 12 months, it would be expected that the recommendations made by Dr Wojnarowska and Dr Wynn Owen outlined at [212] above will be implemented (if possible, in the case of a transition to self-care). Of course, regard should be had for Dr Galloghly's view that a separate substance abuse treatment program might not assist the respondent, given that he will undertake the ISOTP. That will be a matter for those managing his treatment to consider in light of the progress he is making.
It would also be expected that the process with the NDIS will be pursued.
Finally, it would be expected that the Department will continue to explore the availability of suitable accommodation in the event that the making of a supervision order is considered to be appropriate at a future review of the continuing detention order.
Orders
For the reasons I have given, I order that the respondent be detained in custody for an indefinite term for control, care or treatment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
XH
Research Associate to the Honourable Justice Fiannaca14 JANUARY 2019
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