Director of Public Prosecutions (WA) v Wesley - [2014] WASC 125

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- WESLEY [2014] WASC 125

CORAM: McKECHNIE J

HEARD: 24 MARCH 2014

DELIVERED : 9 APRIL 2014

FILE NO/S: DSO 4 of 2014

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
GAVIN JOHN WESLEY
Respondent

Catchwords:

DSO application - Whether reasonable grounds for order - Denier - Whether evidence about risk required

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 14
Sentence Administration Act 2003 (WA)

Result:

Order made for Division 2 hearing

Category: B

Representation:

Counsel:

Applicant: Ms K Robinson
Respondent: Ms M R Barone

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers Pty Ltd

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

The State of Western Australia v Narrier [No 1] [2008] WASC 157

McKECHNIE J: By application dated 13 March 2014 and filed the following day, the applicant applies for orders under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) s 14 and s 17(1) in relation to the respondent. The application is supported by an affidavit of Katrin Robinson sworn 12 March 2014.
If the court is satisfied there are reasonable grounds for believing that the court might find that the offender is a serious danger to the community, orders are to be made to fix a date for the hearing, and for the examination of the offender by two psychiatrists.

The issues to be decided

The application is opposed by the respondent on two grounds:
(1)The DPP has not brought the application within the time specified.
(2)There are no reasonable grounds for believing that the court might find that the offender is a serious danger to the community.

The time for bringing the application

The DSO Act s 8:
8.DPP may apply for orders
(1)The DPP may file with the Supreme Court an application for orders under section 14 and section 17(1) in relation to a person (the offender) who is under sentence of imprisonment wholly or in part for a serious sexual offence.
(2)Subsection (1) applies whether the sentence was imposed before or after the commencement of this Act and whether or not the person under sentence of imprisonment is in custody.
(3)If the person under sentence of imprisonment is in custody, the application cannot be filed unless there is a possibility that the person might be released from custody within the period of 6 months after the application is made.
The respondent submits that at the time of the application, the respondent was not under a sentence of imprisonment, wholly or in part, for a serious sexual offence.
The respondent acknowledges that there is a judgment to the contrary: The State of Western Australia v Narrier [No 1] [2008] WASC 157 but submits that as a primary judge, I am not bound by the judgment. Although the respondent submits that it is of persuasive value only, I am bound to follow the judgment unless convinced that it is plainly wrong.

The respondent's sentences

The offending occurred between 18 May 1999 and 15 March 2001. The respondent befriended the mother of a young girl and boy and thereafter sexually assaulted them in a most deviant way, including times when babysitting.
Some of the incidents involve the respondent's niece in what the judge described as 'representing the most depraved conduct of the lot. It constitutes one of the worst examples of crimes of this type that I have seen'.

(a) The serious sexual offences

A serious sexual offence is defined under the DSO Act as follows:
serious sexual offence has the meaning given to that term in the Evidence Act 1906 section 106A.
The respondent was convicted of a series of serious sexual offences following two trials. On the first trial (indictment dated 25 September 2002, 10 counts) the respondent was acquitted on count 1 and convicted of nine counts. On the second trial (indictment dated 1 October 2002), the respondent was convicted of 14 counts.
On 15 November 2002, the trial judge sentenced the respondent on the nine convictions from the first trial, with all sentences to be served concurrently with each other. He then sentenced the respondent for the convictions following the second trial. All sentences were to be served concurrently with each other but cumulatively on the sentences imposed in respect of counts 2 to 10 in the first trial. The total head sentence was a term of 17 years with parole eligibility, backdated to commence from 27 September 2002.

(b) Possession of child pornography

Possession of child pornography under the Censorship Act is not a defined serious sexual offence under the Evidence Act 1906 (WA) s 106A.
On 28 February 2003 the respondent pleaded guilty to an indictment charging him with four counts of possession of child pornography under the Censorship Act 1996 (WA) s 60(4), the offences arising on 4 April 2001.
The respondent was sentenced to terms of 6 months' imprisonment to be served concurrently with each other but cumulatively on the sentence of 17 years passed on 15 November 2002. As at 28 February 2003, the aggregate sentence to be served by the respondent was one of 17 years and 6 months' imprisonment.
In Ms Robinson's supporting affidavit at par 5, she asserts that the respondent's sentence commenced on 27 September 2002 and is due to expire on 27 May 2014.
The respondent contends that he has completed the sentence imposed by the District Court for serious sexual offences and is now under sentence for an offence which is not a defined serious sexual offence.
In The State of Western Australia v Narrier [No 1], Narrier had been sentenced to imprisonment for a series of serious sexual offences and later for a number of offences that were not sexual in origin.
Narrier was not eligible for parole, a position different from the respondent. The argument put in the present case is the same as the submission made to Murray J:
The respondent submits that the term of imprisonment which resulted from the sentences passed on 16 June 1998, having regard to the backdating to 19 January 1998 and subject to any remissions which might have been lost during the service of the term, ended some time around the end of January 2006, whereupon, in accordance with the law, the respondent must have been discharged from that aggregate term and the sentences of which the term was comprised. Thereafter, the respondent argues, he should be regarded as serving the aggregate term imposed upon him cumulatively on 28 April 2000. It was those sentences, the respondent submits, which terminated on 12 July 2008, well over two years later and from which on that date he was discharged leading to his release from prison at that time [18].
After reference to the Second Reading Speech and the Interpretation Act 1984 (WA) s 18 and s 19, Murray J posed the question:
The question is a simple one. Was there power to make the application because when it was made the respondent was under sentence of imprisonment wholly or in part for a serious sexual offence? [23].
His Honour noted that the term 'under sentence of imprisonment' is also defined under the DSO Act s 3. There term is said to have a meaning consistent with the Sentence Administration Act 2003 (WA) s 66 [24].
In my respectful opinion, the definition in s 66 simply takes into account provisions applying to early release orders and does not otherwise assist in the construction of the DSO Act.
After referring to the purpose of the DSO Act, Murray J relied on the purpose of the Act in the Second Reading Speech:
If a strict interpretation of the phrase 'under sentence of imprisonment wholly or in part for a serious sexual offence' is adopted in circumstances such as exist here, there would in fact never be a capacity to make an application under the Act in respect of the respondent.
A strict interpretation would result in the conclusion that the respondent was no longer under sentence of imprisonment wholly or in part for the sexual assault offence when he served either two‑thirds of the aggregate term of 12 years imposed to take effect from 19 January 1998 or two‑thirds of the term of 8 years imprisonment imposed for the sexual assault concurrently with the related burglary sentence. In neither case, while under sentence of imprisonment wholly or in part for the sexual assault offence, would there be any possibility that he might be released from custody when he ceased to be under sentence of imprisonment wholly or in part for that offence.
The respondent's position would be improved so far as the potential to apply the DSO Act to him is concerned, because he committed other offences, which did not include a serious sexual offence, on a separate occasion, meriting separate cumulative punishment. Indeed, if that view is right, no application under the DSO Act could be brought in this case because of the structure of the sentences imposed with effect from January 1998. It will be recalled that the second group of offences, a burglary and assault occasioning bodily harm in respect of which an aggregate term of 4 years imprisonment was imposed, were ordered to be served cumulatively upon the first group of offences. The same reasoning would apply to prevent an application under the DSO Act by reason of the multiplicity of offences for which sentence was to be passed on the one occasion.
In my opinion, the relevant limiting phrase in s 8 requiring that the offender be, 'under sentence of imprisonment wholly or in part for a serious sexual offence', should not be so interpreted, when the effect would be to defeat the application of the Act entirely, in a particular case which might otherwise fall within the purpose of the enactment of the statutory scheme.
In my view, an offender remains under sentence of imprisonment in part at least for a serious sexual offence when the aggregate term being served, whether comprised of sentences all passed on the one occasion or on different occasions, and whether the sentences take effect concurrently, cumulatively or partially cumulatively, includes a sentence or sentences for a serious sexual offence. The requirement of the statute will be satisfied where the sentence for a serious sexual offence contributes a portion of the aggregate term of imprisonment. Then the offender remains under that sentence of imprisonment until he is discharged from the aggregate term and entitled to be released from custody [27] ‑ [31].
Murray J, with respect, correctly focused on the evident purpose and objects of the DSO Act. I agree with The State of Western Australia v Narrier [No 1] and in consequence I do not consider it is plainly wrong, the first step in departing from it. However, I have reached my own conclusion which is to the same effect.
The Sentencing Act 1995 (WA) s 88 allows a court to sentence an offender to cumulative imprisonment for a fixed term sentence.
The Sentencing Act s 85 defines parole term:
parole term means a term to which a parole eligibility order applies;
All sentences imposed on the respondent were parole terms. Section 94 provides for the aggregation of parole terms for certain purposes:
(1)In the case of a prisoner serving 2 or more parole terms -
(a)the time when he or she is eligible to be released on parole; and
(b)the parole period for such a prisoner,
are to be calculated by reference to the aggregate of those terms, but only if under subsection (3) or (4) those terms are to be aggregated.
The respondent's parole terms are to be aggregated under s 94(4).
I do not think it is necessary to rely upon the Second Reading Speech and the purpose of the DSO Act to resolve the issue.
The fallacy in the respondent's submission is in purporting to divide the terms of imprisonment into distinct terms rather than aggregating the parole terms as required under the Sentencing Act. Once the terms are aggregated, the respondent is a person under sentence of imprisonment wholly or in part for a serious sexual offence: DSO Act s 8. The DPP's application is therefore filed within time and the respondent's first submission is rejected.

Are there reasonable grounds for believing that a court may make a DSO Order?

The main issue on which the DPP relies is the respondent's refusal to actually address the offending behaviour because of his persistent denial of his offending. He has not participated in any sex offender treatment programme, other than the Sex Offenders Deniers Programme. The State also relies on the nature of the offences committed against very young children.
Mr David Summerton prepared a report dated 6 November 2002:
Treatment Issues
[The respondent] clearly has significant treatment needs in relation to his offending behaviour. However, he has totally denied a very serious course of behaviour against several children. His offences suggest a quite broad range of deviant interests involving children. He has used pornography and sexual toys in engaging both male and female children in various sexual acts. Despite his denial he has acknowledged a willingness to engage in treatment and such engagement would represent some opportunity to address the issues of denial and marked distortion in the first instance. Beyond his denial and deviant issues there are various features of his psychological functioning that are worthy of therapeutic intervention. This includes his reported tendency to immerse himself in work during times of emotional distress. Related to the foregoing is his manner of coping with grief issues. Further, his inclination to acquiesce and adopt a 'pleasing' demeanour in the interpersonal context is also worthy of examination.
Risk of Re‑offence
Based on a tripartite model of risk assessment an initial assessment based upon actuarial factors places [the respondent] at a medium high risk of reoffending. This is based on the number of victims, the fact of having offended against children of both genders and the extrafamilial nature of his relationship with the victims. However, this is likely to understate his risk. Issues that are likely to elevate his risk include his denial of his offending and his tendency to portray himself as a victim in relation to his current predicament. Further there is evidence of marked distortions in his descriptions of his dealings with the victims of his offending. In addition, documented descriptions of his offences suggest a broad level of deviant interest in relation to sexual activity with children.
He has acknowledged some willingness to engage in treatment though it is obviously unclear what this might achieve at this point.
Due to his stance of denial, a Sex Offending Checklist - Outcome performed on 25 February 2003, concluded:
[The respondent] clearly has significant treatment needs in relation to his offending behaviour. Based on actuarial factors, which are historical in nature and therefore unchanging, [the respondent] presents a medium high risk of reoffence in a sexual manner. This is based on the number of victims, the fact of having offended against children of both genders and the extrafamilial nature of his relationship with the victims. Despite his denial he has acknowledged a willingness to engage in treatment.
Given that [the respondent] revealed a lack of responsibility for his offending, he is currently not suitable for inclusion in a specialist sex offender treatment program as facilitated by the Department of Justice. As it is not unusual for sex offenders in denial to alter their stance, the writer suggests that [the respondent] may benefit from an Intensive Sex Offender Treatment Program should his stance change. [The respondent] understands it is his responsibility to contact his case officer to waitlist him for a program.
Because of his denial, the respondent did not participate in an Intensive Sex Offenders Programme. In 2010, he was clinically assessed for participation in the Sex Offenders Deniers Programme. The programme is a 95‑hour treatment programme, targeting individuals who categorically deny committing sexual offences. The programme uses a modified format to address evidence‑based criminogenic needs of sexual offenders. He completed the programme between 21 February and 1 August 2011.
Treatment
[The respondent] made some gains in understanding how he came to place himself at risk of having allegations made against him. He acknowledged that his concern at being somehow 'blamed' for finding the children apparently engaging in some sex play led to him not dealing with the situation appropriately. [The respondent] indicated that his eagerness to please others, his lack of assertiveness and apparently a lack in awareness and sensitivity for one of the children were faults which may have led to the allegations. [The respondent] completed the Sex Offender Denier's Program with attention to his treatment goals of awareness of inappropriate boundaries with children and insight into his lack of intimacy and assertiveness in relationships. He was seen to gain a greater understanding of healthy emotional coping, although it is believed that he needs to develop more strategies in his regard.
Summary and Recommendations
[The respondent] completed the Sex Offender Deniers Program where he demonstrated a pro‑social attitude and was a respectful group member. He made genuine attempts to be receptive to feedback from facilitators and met identified treatment goals by gaining a greater awareness of his inappropriate boundaries with children and more insight into his lack of intimacy and assertiveness in relationships. He was seen to gain a greater understanding of healthy emotional coping although it is felt he needs to develop more strategies for dealing with life issues so that he may avoid viewing himself as a victim in the future which may be a barrier to social acceptance and greater intimacy with others. [The respondent] made some gains in empathic understanding by acknowledging a lack in awareness and sensitivity for one of the children identified as a victim. He acknowledged that he needed to protect himself from risk of further allegations by not to be alone when with children and by guarding against improper use of his computer. He is aware of the requirements for him to comply with reporting obligations to the Sex Offender Management Squad. [The respondent] may need intensive assistance from suitable welfare agencies closer to his release as he appears somewhat isolated from a broader family and community support base.
It is recommended that [the respondent] not be alone and unmonitored when with children in the community.
The overall impression is that the Sex Offenders Deniers Programme had a positive outcome for the respondent. The respondent described the effects on him:
[I] no longer feel the low self‑esteem and low self‑confidence I used to suffer from. Perhaps I am about eighty‑five percent where I need to be with regard to assertiveness but with the help of the counselling I intend on pursuing once released, my mentor and support group this shall be addressed as a whole along any other deemed necessary through regular reviews and assessments of my goals and plans.
Mr Summerton's assessment is over 10 years old. There is no present risk assessment following the successful completion of the Deniers Programme.
There is no evidence that a denier is either more or less potentially dangerous than a sex offender who acknowledges guilt. It is not a matter about which judicial notice can be taken.
At a full hearing a court will have to consider the application against the criteria in the DSO Act s 7(3). I can form a very limited opinion on s 7(3) from the scant evidence available.
I have no psychiatric report.
There is no information as to present risk.
There is no information indicating whether the respondent has a propensity to commit serious sexual offences in the future.

There is a pattern to his sexual offending which involved his gaining the confidence of adults and serially abusing children within his care. The censorship offences indicate, at least in 2001, an interest and attraction to paedophilia. There is no evidence whether that attraction continues.
There is evidence that the respondent has made efforts to address the causes of his offending behaviour, participating in the Sex Deniers Programme.
His antecedents and criminal record, other than the serious sexual offending and censorship offences, do not suggest that he is a material risk to the community.
It is legitimate then to take into account the conditions under which the respondent will be released into the community if not subject to an order.
The respondent has an impressive support system through the E family. The principal driver is BFE, a former police officer. He has sworn an affidavit in support dated 24 March 2014. The respondent's Parole Plan Re‑application attached a number of support letters which detail the practical steps that would be undertaken by the E family, including tracking software on the respondent's computer. It is proposed that the respondent would live with BFE's parents who are in their 90s. They are aware of the convictions.
The respondent's support system is the most comprehensive I have seen for any respondent to an application under the DSO Act s 14. The proposed restrictions are appropriate. The proposal is not, of course, perfect and does not completely mitigate the risk. However, the test in this application is whether in all the circumstances there are reasonable grounds for believing that a court might find the respondent is a serious danger to the community. A serious danger is an unacceptable risk (not a risk) that the respondent would commit a dangerous sexual offence unless subject to a detention order or a supervision order.
The proposal goes a considerable way to satisfying me that the respondent's release without any order would not constitute an unacceptable risk.
The DPP must affirmatively persuade the court there are reasonable grounds for belief. The making of an order under s 14 has serious consequences. Two psychiatrists must be engaged. A respondent who may otherwise be entitled to release may be ordered to be detained in custody beyond the time served for his offending.
The test under s 14 is sometimes described by counsel as a 'low threshold'. This indicates an error of approach. If resort must be had to language, other than the plain meaning of s 14, the section acts as a filter to prevent persons whose term of imprisonment has expired from being detained beyond that term except on reasonable grounds for belief. It will ordinarily require more than a simple recitation of the offending behaviour and an assertion without a proper evidential foundation, that an offender presents a greater risk simply because they deny the offending.
The DSO Act is not a tool to effectively extend parole in the community under a supervision order because the Prisoners' Review Board had refused parole. If the consequence is that a sex offender is released into the community without supervision, that consequence cannot be ameliorated by use of the DSO Act, unless strict criteria are satisfied.
Taking everything into consideration, including the proposed support system, I narrowly conclude that the DPP has established that there are reasonable grounds for belief that a court might make an order. The sole basis for that conclusion is the pattern and nature of offending over several years. A court might be satisfied to the standard required in s 7(2) that the respondent is a serious danger to the community.
I will make the appropriate orders, fix a date for hearing, and appoint psychiatrists.