Director of Public Prosecutions (WA) v Winder - [2011] WASC 67

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- WINDER [2011] WASC 67

CORAM: McKECHNIE J

HEARD: 14 MARCH 2011

DELIVERED : 21 MARCH 2011

FILE NO/S: MCS 15 of 2010

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
MURRAY JOHN WINDER
Respondent

Catchwords:

Dangerous sex offender - Whether detention or supervision - No new principles

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Supervision order

Category: B

Representation:

Counsel:

Applicant: Mr P D Yovich
Respondent: Mr J A Sutherland

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: McDonald & Sutherland

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

Nil

McKECHNIE J: Mr Winder is a 53‑year‑old who has spent many years in prison for sexual offences. A neuropsychological report revealed a notable impairment in his understanding of basic social norms, concrete and rigid thought, and reduced ability to recognise and label facial expressions. He has a moderate mental disability. It is not in issue that he is a serious danger to the community under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) s 7.
The DPP filed a book of materials. Both Dr Febbo and Dr Wojnarowska in reports to this court consider that without detention or supervision Mr Winder is at high risk of re‑offending.
Although Mr Winder has made efforts to address his offending behaviour and taken part in the sex offender treatment programme his intellectual impairment is likely to have led to a limited response to this programme.
His record includes offences for rape (1980) and sexual offences against children (2002). On my examination of the materials submitted by the DPP, without objection, and taking into account the psychiatric opinion, I have no doubt that if Mr Winder is not subject to an order he will commit a further serious sexual offence.
The final hearing was listed for July 2010 but adjourned to enable a comprehensive neuropsychological assessment. In November 2010, the matter was further adjourned until March 2011 while the options of supervision within the community were explored.
At the hearing on 14 March 2011 the written materials were supplemented by evidence from the following:
1.Ms McCorry, Community Corrections Officer, Carnarvon.
2.Dr S D Febbo, psychiatrist.
3.Dr G Wojnarowska, psychiatrist.
4.Dr T Yewers, dangerous sexual offender psychologist.
After hearing the evidence, counsel for the DPP submitted, with some hesitation, that a supervision order would be appropriate. I agree with this submission.
The paramount consideration is the need to ensure the adequate protection of the community. The DSO Act itself recognises that the community may be adequately protected on occasion by a supervision order. The protection is to be adequate not absolute. This recognises that while the paramount consideration is community protection there are other considerations which a judge must weigh in determining the appropriate order for a dangerous sexual offender.
The proposal is that the respondent will live in Carnarvon with his sister, a mature well regarded intelligent woman, who is prepared to look after her brother for the rest of her life in need be. In addition, three of his brothers are prepared to assist her in Mr Winder's integration into the community. His sister would be a protective factor for Mr Winder.
Few supervision options are likely to be ideal and there are issues with this proposed supervision. Mr Winder's sister has expressed the view that he is not guilty of the offences with which he was charged. This is a concern raised by Dr Febbo and by Ms McCorry. Dr Wojnarowska does not regard it as so important. She points out that people may deny deeds to protect the family name or through shame. Importantly for Dr Wojnarowska, the sister accepts the status quo; that is, that Mr Winder is regarded as a serious risk of re‑offending without close supervision and she is prepared to undertake that role along with the various government agencies who will collaboratively assist and monitor.
Although the sister's views are a concern, I am satisfied by the evidence of Ms McCorry that she nevertheless fully understands the requirements of supervision and is prepared to actively facilitate them.
Mr Winder's sister has a large extended family, some of whom are opposed to Mr Winder's return, while others are supportive. She will, on occasions, be visited by children and she is aware of and prepared to take protective steps when this occurs.
Of further concern is the nearby environment. The street suffers domestic violence, disorderly conduct and drunkenness. There are dysfunctional families and several children for whom the Department of Child Protection are actively engaged. Because of a party‑like atmosphere, some mothers do not rise early and there are numbers of unsupervised children in the street.
The proposed address is relatively close to government services including the police. While the police see problems in extracting Mr Winder should there be vigilante behaviour, this of itself does not persuade me against the ordering of a supervision order. The strong family support to be offered is highly persuasive.
There are other reasons why a supervision order is appropriate provided the community can be adequately protected.
As I have mentioned, Mr Winder has an intellectual disability. This makes him unsuitable for a group‑based programme. He is likely to be detained in a country prison where there are limited resources for one‑on‑one intervention. In short, according to Dr Yewers, there is little further that can be done to treat the fundamental issues. In a supervision order some of the socialisation issues can be addressed. She has approached a psychologist in Carnarvon who would be prepared to undertake counselling on a trial basis. Whether this is likely to be productive is unknown.
Dr Febbo thought there was no meaningful treatment that could be now undertaken if Mr Winder remained in detention. Dr Wojnarowska thought that further detention may increase the risk because of more institutionalisation. Dr Yewers could see nothing to contradict this view.
The release of a dangerous sexual offender into the community under a supervision order always carries a risk. Having regard to the evidence in this case, both in the written material and as supplemented by the oral evidence, I am persuaded that the risk can be adequately managed by a supervision order and that continuing detention will produce no further treatment gains or greater awareness or insight by Mr Winder. I reach this conclusion having regard to the paramount consideration of community safety.
There are a number of aspects to the supervision order however. It is based around Mr Winder's sister and there will need to be a collaborative approach by government agencies to supporting her and Mr Winder in his efforts in reintegration into the community without committing an offence. At least initially in the supervision order there will need to be very close monitoring of Mr Winder's behaviour and his avoidance of risky situations.
Dr Febbo suggested a supervision order of 7 to 10 years because Mr Winder will be vulnerable for a long time and the situation may change. I accept that evidence and for the protection of the community will impose a supervision order for a period of 10 years.

Conclusion

Murray John Winder is declared to be a serious danger to the community in that there is an unacceptable risk that if he is not subject to a supervision order he would commit a serious sexual offence. A supervision order for a term of 10 years is imposed.