The Director of Public Prosecutions v Manning - [2007] WASC 134

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE DIRECTOR OF PUBLIC PROSECUTIONS -v- MANNING [2007] WASC 134

CORAM: SIMMONDS J

HEARD: 7 MARCH 2007

DELIVERED : 21 JUNE 2007

FILE NO/S: MCS 6 of 2007

MATTER :The Dangerous Sexual Offenders Act

BETWEEN: THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
AND
ERIC JOHN MANNING
Respondent

Catchwords:

Criminal law - Miscellaneous matters - Dangerous Sexual Offenders Act 2006 (WA) - Application for continuing detention order - Whether reasonable grounds for believing there might be an unacceptable risk of re-offending - Whether detention should continue to final hearing

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 8, s 14, s 17(1), s 29, s 30, s 33(1), s 37
Sentencing Act 1995 (WA), s 93(3)

Result:

Order that respondent undergo examination by two psychiatrists
Order that respondent be detained in custody until final hearing

Category: B

Representation:

Counsel:

Applicant: Mr K P Bates
Respondent: Mr D J McKenzie

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: Legal Aid WA

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

Director of Public Prosecutions v Allen [2006] WASC 160
Director of Public Prosecutions v Williams [2006] WASC 140
Fardon v Attorney General for Queensland (2004) 223 CLR 575

SIMMONDS J:

Introduction

At the adjourned hearing of this application I decided that orders should be made as I will indicate. I said that I would provide reasons for decision subsequently. These are those reasons.
This is an application for orders under relatively new legislation, the Dangerous Sexual Offenders Act 2006 (WA) (in force 13 May 2006), in relation to a person who is under sentence of imprisonment, in part for a serious sexual offence (whom the Act calls "the offender": I will refer to him as "the respondent").
The orders sought are the first step in a two step process. The process was initiated by the applicant's application, dated and filed 15 February 2007, for orders under Act, s 14 and s 17(1), in relation to the respondent, pursuant to Act, s 8.
The applicant's minute of orders for the hearing before me calls for orders under the first step of the process, that is, under Act, s 14. Those orders are:
•That the application for an order under Act, Div 2, pursuant to s 17(1), be heard on a date to be fixed;
•That the respondent undergo examination by two psychiatrists (to be named) for the purposes of preparing reports as required by the Act, s 37, that are to be used at the hearing of the Applicant’s application for the order under Act, Div 2; and
•That the respondent by detained in custody until the application for a Div 2 order is heard and determined.
The order under Act, Div 2, pursuant to s 17(1), is the subject of the second step of the process the applicant has initiated. At that step, the Court may make such an order if it finds the person is a "serious danger to the community".
More particularly, the order that may be made is (Act, s 17(1)) that the person either:
•Be detained in custody "for an indefinite term for control, care or treatment"; or
•Be subject, at all times stated in the order, and while the person is not in custody, to conditions that the court considers appropriate and states in the order.
In this decision, I first review the basic scheme of the Act. Then I consider the provisions particularly pertinent to me for the purposes of what I have called the first step of its two step process, the step which the applicant has taken before me.
As will become apparent, particularly for my review and consideration, I draw heavily on two decisions, for what I have referred to as first step orders under the Act, of Blaxell J, in Director of Public Prosecutions v Williams [2006] WASC 140 and Director of Public Prosecutions v Allen [2006] WASC 160.
After that review and that consideration, I turn to the evidence before me in relation to the first step orders sought in this case and indicate my determinations.
The concluding section of this decision is an indication of my orders.

The basic scheme of the Act

In what immediately follows, I particularly draw on the decision of Blaxell J, in Williams (supra), at [2] ‑ [14].
The Act provides for a system of "preventative detention" for persons who are "serious sexual offenders" who, at the time of their release from imprisonment, represent an "unacceptable risk" to the community: Williams (supra), at [2]. Such systems are not unique: see the instances described in Fardon v Attorney General for Queensland (2004) 223 CLR 575, per Callinan and Heydon JJ, at [217], quoted in Williams, at [2].
The term "serious sexual offender" is not used in the Act. However, the Act gives the Court jurisdiction to make first step or second step orders in relation to a person who is an "offender". That person is defined (in Act, s 3, referring to s 8(1)) as: "a person … who is under a sentence of imprisonment wholly or in part for a serious sexual offence".
The definition applies whether the sentence was imposed before or after the commencement of the Act, and whether or not the person under sentence of imprisonment is in custody (Act, s 17(2)).
The term "serious sexual offence" is defined (in Act, s 3) by reference to the definition used in Evidence Act 1906 (WA), s 106A, which in its turn includes offences under Criminal Code, Pt XXI, the maximum penalty for which is 7 years or more. One such offence is that in Code, Pt XXI, s 326, of sexual penetration without consent in circumstances of aggravation, the maximum penalty for which is 20 years.
The respondent in this case was sentenced on 4 May 2001 to terms of imprisonment for two counts of aggravated sexual penetration without consent, one count of attempted aggravated sexual penetration without consent, and one count of deprivation of liberty. The sentences were 2 years of imprisonment on each of the first three counts, and 1 year of imprisonment, on the fourth count, all cumulative, for a total of 7 years. The total sentence was backdated to 6 November 2000. There was eligibility for parole.
Subsequently to that sentencing, the respondent, as a sentenced prisoner, was sentenced or otherwise dealt with for offences none of which was a "serious sexual offence". These offences resulted in terms of imprisonment of a further 18 months, cumulative, with eligibility for parole; 6 months and 1 day, cumulative, without eligibility for parole; and 67 days for "default of fines".
On his first eligibility for parole, on 30 May 2005, the Parole Board (as it then was) denied the respondent release on parole, and he has not subsequently been so released. The effect was that the respondent was required to serve the remainder of his term. That means, on the material before me, he "must be released" (Sentencing Act 1995 (WA), s 93(3)) from custody on 14 March 2007.
It was not in contest before me that the effect of the matters was that the respondent at the date of the hearing before me was a "person who is under a sentence of imprisonment wholly or in part for a serious sexual offence". This means the statutory obligation to release him on 14 March 2007 is qualified by the Act.
The qualification on the release of a serious sexual offender that allows for continued detention in custody for an indefinite period is that, at the second step of the process, the Court "may" so order, having found the offender is a "serious danger to the community" (Act, s 17(1)(a)). That term is defined (in Act, s 3, read with s 7(1)) in terms that the court is "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".
A "continuing detention order" is, in the second step of the process (there is another type of such order, not material for my purposes), an order (Act, s 3, read with s 17(1)(a)) "that the offender be detained in custody for an indefinite term for control, care, or treatment".
There are provisions for annual reviews of a continuing detention order (Act, s 29), and other reviews on application by the person subject to the order after the first year in detention (Act, s 30). On the review, the court must rescind the order "if it does not find that the person subject to the order remains a serious danger to the community" (Act, s 33(1)).
A "supervision order" is, in that step of the process (there is, again, another type of such order, not material for my purposes), an order (Act, s 3, read with s 17(1)(b)):
"That at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order."
There is a further qualification on the release of a serious sexual offender that allows (in the case of a serious sexual offender in custody at the time of the order) for the possibility of continued detention in custody for the period stated in the order (Act, s 14(2)(b)(i)). This the order the court "may" make at the first step in the process: there is no provision for the making of a supervision order at this step (Williams (supra), Blaxell J, at [38]).
However, there is the possibility, at the first step of the process, in suitable cases, of achieving much the same effect as a supervision order. This is by an adjournment of the first step hearing sine die; the adjournment would be as to the question of whether or not to detain the respondent in custody: see Allen (supra), Blaxell J, at [60].
The first step of the process is, however, principally about the determination of the appropriateness of permitting the application for the second step orders to go forward, as I will now explain.

The first step of the two step process under the Act

Again, in what follows I particularly draw on the decision of Blaxell J, in Williams (supra), at [2] – [14].
The first step of the two step process is called in the Act the "preliminary hearing" (see Act, s 3 and s 11(1)).
At the preliminary hearing, if the court is "satisfied" of a certain matter, then certain orders "must" be made (Act, s 14(1) and (2)(a)), while a detention order, for the period specified in the order, "may", as I have just indicated, also be made (s 14(2)(b)).
The orders which "must" be made are two.
One order that "must" be made, by "the proper office of the court", is for the fixing of the day of the second step hearing (s 14(1)).
The other order that "must" be made (s 14(2)(a)), by "the court", is that the respondent undergo examinations by two psychiatrists "named by the court for the purposes of preparing the reports required by section 37 that are to be used on the [second step] hearing of the application".
The principally relevant part of s 37 is as follows (s 37(1)):
"Each psychiatrist named in an order under section 14(2)(a) … must examine the person to whom the order or arrangement relates and prepare an independent report."
I particularly note the requirement the reports be "independent". At the very least that would seem to require the two psychiatrists prepare their reports independently of one another.
There appears, however, to be a further implication of s 37, of particular significance for a Judge at a preliminary hearing. As Blaxell J notes, in Williams (supra), at [34], [35]:
"[i]t should also be borne in mind that the Respondent may wish to engage and call his own psychiatrists as witnesses, and accordingly I need to be careful to preserve my impartiality in the event that there is any conflict in the expert evidence.
In these circumstances I have avoided any involvement in the selection of the two psychiatrists to be named by the Court. Instead, I have remained at arm's length and have asked the Principal Registrar of the Court to perform this task."
The matter of which the court must be satisfied is as follows (Act, s 14(1)):
"That there are reasonable grounds for believing that the court might, under section 7(1), find that the offender is a serious danger to the community."
As Blaxell J in Williams (supra), at [29] states, any such finding is of a "doubly predictive" character. The two predictive characteristics arise out of the need for the court, at the second step of the process, before it may make a finding that a person is a "serious danger to the community", to determine the extent of the risk of the respondent committing a serious sexual offence, and whether or not the risk is "unacceptable".
As Blaxell J in Williams (supra) notes (at [8]), in approaching the task of determining whether or not make the finding with those characteristics
"[t]he court has a discretion to decide the preliminary hearing on the papers without any appearance by the offender and without the offender being heard (s 41(2)). The court may also receive in evidence any documentation relevant to the antecedents or criminal record of the offender, the official transcript of any judicial proceedings against the offender for a serious sexual offence, and any relevant material contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind (s 41(3))."
At the first date for the preliminary hearing before me, 26 February 2007, there was an appearance for the applicant. There was no representation of the respondent, who appeared in person by video link from Albany Prison, where he was (and is) in custody.
At that initial preliminary hearing I was informed that the application and the supporting material which I will shortly reach had only been given to the respondent on 23 February 2007. Arrangements were in train at the time of the initial preliminary hearing for Legal Aid to visit the respondent, to determine whether or not he qualified for representation.
I note that the delivery of documents to the respondent on 23 February 2007 was inconsistent with the provisions for such delivery in the Act (s 8(5)), which read:
"The DPP has to cause the offender to be given, within 2 days after the application is filed, a copy of the application and any affidavit to be relied on by the DPP."
The application was filed on 15 February 2007, as I have indicated. 15 February 2007 was a Thursday. This meant that the DPP had to cause the respondent to be given the documents referred to by Monday, 19 February 2007 (Interpretation Act 1984 (WA), s 61).
As Blaxell J notes, in Williams (supra), at [30], in considering whether to proceed in the absence of the respondent, it should be borne in mind that it is "highly appropriate" the respondent be given a "full opportunity to be heard", as the preliminary hearing is "the first step in a process which has the potential to involuntarily deprive the Respondent of his liberty for an indefinite period".
This would be all the more so when the respondent did not have the benefit of the delivery of documents provided for in Act, s 8(5).
In the event, on the application of the applicant, I ordered the preliminary hearing be adjourned to 6 March 2007. This was to permit the respondent to consult with Legal Aid, and to allow for any representative appointed by them at least to begin to prepare for the adjourned preliminary hearing. At the adjourned hearing, the applicant was represented under arrangements made by Legal Aid.
As to the inconsistency in the delivery of the documents to the respondent with Act, s 8(5), counsel for the applicant referred me to Act, s 40, which is relevant to the hearing before in another respect I reach below, and which reads:
"Proceedings under this Act or on an appeal under this Act, are to be taken to be criminal proceedings for all purposes."
In turn, counsel directed me to Criminal Procedure Act 2004 (WA), s 89, giving the court power to adjourn proceedings on a charge. It was put to me that this gave the court power to extend the time limits in the Act, or at least the time limit in s 8(5), and I was referred to Allen (supra), Blaxell J, at [8] – [12], where he granted a second adjournment of the preliminary hearing, to permit the respondent in that case to make arrangements for his own psychiatric reports to be prepared. As his Honour's judgment indicates (at [34]), those reports were subsequently provided, shortly before the adjourned preliminary hearing, which took place more than the 14 days after the time for a preliminary hearing stipulated for in Act, s 11(2), and which meant that the respondent's reports were provided later than the three day period before the date fixed for the preliminary hearing stipulated for in s 12(2).
It is not plain to me how the power to adjourn the preliminary hearing acted upon in Allen can have the effect of extending the time for service of the application and any supporting affidavit as counsel for the DPP contended for. However, counsel for the DPP put to me that the power to adjourn permitted me to address any prejudice to the respondent from the delay in giving him the material called for by Act, s 8(5). Counsel for the respondent did not disagree.
In the circumstances, I have concluded that the power to adjourn should be understood as contended for, and that I could proceed on the preliminary hearing.
In any event I had indicated at the initial preliminary hearing, on 26 February 2007, that, at the adjourned hearing, I would entertain argument from the legal representative of the respondent, or the respondent himself, as to the adequacy of the time to prepare for the preliminary hearing delivery of the documents for which did not comply with Act, s 8(5), in the way that had happened in this case. In particular, I would take account of the difficulty for the respondent in meeting the provision of the Act (s 12) for filing affidavit material in relation to the application. I return to that provision of the Act below.
In the event, counsel for the respondent indicated he was satisfied no prejudice was caused by what had happened, and he was content to have the hearing proceed as the preliminary hearing.
At the adjourned preliminary hearing, I had from the applicant the following documents, all of which, except the last two listed sets of items, were given to the respondent on 23 February 2007:
•The application dated and filed 15 February 2007;
•The affidavit of Kenneth Paul Bates, the Acting Director of the applicant who has the carriage of this matter, sworn 24 January 2007 and filed 15 February 2007 ("the Bates affidavit of 24 January 2007");
•The affidavit of Mary‑Anne Martin, Forensic Psychologist and Senior Forensic Consultant with the Offender Services Branch of the Department of Corrective Services, sworn 24 January 2007 and filed 15 February 2007 ("the Martin affidavit of 24 January 2007");
•The supplementary affidavit of Mr Bates, sworn 15 February 2007 (the filed copy of the affidavit before me showed "15 January 2007" on its cover page) and filed that day ("the Bates affidavit of 15 February 2007");
•A psychological report dated 26 April 2001 for the purposes of the sentencing of the respondent on 4 May 2001 to which I return below; and
•Two pre‑sentence reports, one dated 3 May 2001 for the purposes of the sentencing last mentioned, and the other dated 21 June 2001, apparently (if not clearly) for the purposes of the sentencing of the respondent on 22 June 2001, to which I also return below.
The last two sets of listed items, the psychological report and the two pre‑sentence reports, were provided to the respondent not long before the adjourned hearing.
The listed items included official transcripts of sentencing submissions and remarks at the sentencing of the respondent on three occasions, including that on 4 May 2001, on which he was sentenced to terms of imprisonment for the serious sexual offences I have referred to. In the transcript for the sentencing for the serious sexual offences there are references to a number of reports of the sort referred to in Act, s 41(2) and described by Blaxell J in Williams (supra), at [8], quoted above. As I have indicated, I had at least some of the reports themselves. I will return to those references and reports, below.

Those documents also included material that appeared to be directly relevant to the determination of the risk of the respondent re‑offending by committing another serious sexual offence. That material is a "Sex Offender Risk Update Report", an annexure to the affidavit of the person who prepared the report (the Martin affidavit of 24 January 2007), to which I return.
There was no affidavit material filed for the respondent. However, I will reach below certain matters of fact put to me from the Bar table on his behalf.
In considering the affidavit material before the Court I note Act, s 13, which is as follows:
"An affidavit for use in a preliminary hearing must be confined to the evidence the person making it could give orally except that it may contain statements based on information and belief if the person making the affidavit states the source of the information and the grounds for the belief."
No objection was taken at the adjourned preliminary hearing before me to any of the affidavit or other material listed above, and in my view no objection could properly be so taken to any of the material on which counsel, or I, relied.
In considering the evidence properly before it, in determining if the Court is satisfied as I have indicated Act, s 14(1) provides, the Court must note the following before the Court find, at the second step of the process, that the offender is a serious danger to the community (Act, s 7(1)), that (Act, s 7(2) and (3)):
"(2)The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied –
(a)by acceptable and cogent evidence; and
(b)to a high degree of probability.
(3)In deciding whether to find that a person is a serious danger to the community, the court must have regard to –
(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;
(b)any other medical, psychiatric, psychological, or other assessment relating to the person;
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future;
(d)whether or not there is any pattern of offending behaviour on the part of the person;
(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;
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person;
(g)the person's antecedents and criminal record;
(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;
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter."
I will have occasion to return to s 7(3)(d) ("pattern of offending") below.
The provisions of Act, s 7(2) and (3), are important to the determination a Judge in my position must make of the doubly predictive character I have referred to. That importance lies in the approach that I must take to applying to the material before me the standard of proof that must be met if I am to arrive at the determination I have referred to.
The standard of proof for preliminary hearings is not altogether clear from the Act. I agree with Blaxell J in Allen (supra), at [42] – [44], for the reasons he gives there, that the standard is not that of beyond reasonable doubt. This is notwithstanding Act, s 40, which I set out previously.
For his conclusion, his Honour drew on Act, s 41 and s 13, to which I have previously referred, and the fact that the Court is required to be satisfied, not simply that there might be a finding under s 7(1), but that there are "reasonable grounds for believing" that there might be such a finding (emphases supplied).
As his Honour said (at [45]):
"It follows that the role of the court under s 14 is simply to make a preliminary assessment of the strength of the Applicant's case that the Respondent is a serious danger to the community. That preliminary assessment is made with the knowledge that such a finding can only be made if it is proven by cogent evidence and to a high degree of probability. If the court is nevertheless satisfied that there are reasonable grounds for believing that such a finding might be made, the application will have passed the preliminary hurdle."

The present application

For the purposes of the finding required by s 14(1) for the purposes of the orders that "must" be made, and the order the Court "may" make, the applicant relies on three matters. Blaxell J in both Williams (supra) and Allen (supra) considered matters of each these sorts, as presented to him in those cases, to be relevant to the corresponding finding he was called upon to make in those cases.
The first of the matters put to me by the applicant was the nature of the serious sexual offences for which the respondent was under a sentence of imprisonment. It appears to have been put to me that I should consider that nature in the context of certain other offences of which he has been convicted, both in this state and elsewhere, which it is said put the serious sexual offences in a particular light. That light, it was said, helps to illuminate the risk of the respondent, if he were not subject to a continuing detention order, committing a serious sexual offence.
The second of the matters put to me by the applicant was the record of the respondent in relation to rehabilitative programmes, for treatment of the conditions that otherwise might lead him to re-offend, to which he has had access.
The third matter put to me by the applicant was the score of the respondent, on a number of matters, called his "Static 99" score, which it was said was a direct indicator of his risk of committing a serious sexual offence.
I deal with each of these matters in turn.
The material before me as to the serious sexual offences and their context comprised principally the transcript of the sentencing remarks of Jackson DCJ on 4 May 2001. I will have occasion, however, to refer to two other sets of sentencing remarks, in respect of certain other offences committed by the respondent.
From the sentencing remarks of Jackson DCJ on 4 May 2001, it appears that the serious sexual offences for which, at the time of the adjourned preliminary hearing before me, the Respondent was under a sentence of imprisonment arose out a series of events at about 7.15 am on Sunday, 5 November 2000, in an underground car park at the workplace of the victim in the central business district of Perth. The victim, whom Jackson DCJ described as a "slimly built 26‑year‑old woman", had just gained access to the car park and was getting out of her car when she was approached by the respondent. There was no one else present. After the respondent had asked her how to get out of the car park, and as she walked towards the gate to use her security key to let the respondent out, the respondent ran towards her and struck her on the side of her head.
There ensued a series of events which included the respondent striking the victim, kicking her in the stomach and punching her again in the nose, with the result that her nose was fractured, prior to the respondent engaging in the conduct which formed the subject of the counts on the indictment on which he was sentenced.
He was sentenced on his plea of guilty, at an early opportunity, on four counts.
The first count was unlawful detention. The remaining three counts were for sexual offences.
The second count was of introducing the respondent's penis into the victim's mouth and doing bodily harm, the third count was of an attempt to penetrate her anus with his penis and doing bodily harm, and the fourth count was penetrating her vagina with his finger and doing bodily harm.
Jackson DCJ noted that the results for the victim of the events of that early morning were both serious physical injuries and serious emotional trauma.
I observe that the learned sentencing Judge noted that the respondent's offences had been unplanned and opportunistic, that he had assisted the police with bodily swabs, and he was by the time of the hearing remorseful and ashamed of what he had done.
I also observe that Jackson DCJ referred to the respondent having little recollection of the events in question, because of his intake of alcohol and amphetamine "and perhaps other things" (4 May 2001, TS 15) over the previous night. I return to this matter below.
However, I agree with the applicant's submission that I also need to take account of the context of the criminal record of the respondent to which the learned sentencing Judge also referred at the time of sentencing him, as well as an offence, not of a sexual kind so far as I can tell, for which he was later sentenced.
The prior record was described in terms of two sexual offences, and (transcript of sentencing remarks of Jackson DCJ, 4 May 2001, TS 16):
" … many other offences, including offences of a disorderly or street nuisance type, the result of which you have been sentenced on prior occasions to various terms of imprisonment."
I note that I have a prior criminal history for the respondent. That history, which of course includes offences for which the respondent was sentenced after 4 May 2001, in my view merits the description just quoted.
One of the two other sexual offences to which his Honour referred, but which is not included in the prior criminal history I have, was a matter in South Australia in 1996, about which "the details are a little unclear" (TS 16).
However, the other sexual offence, an indecent dealing conviction in 1999 in Western Australia, was one in respect of which, not only did I have the entry in the criminal history, but I was provided with the transcript of the sentencing remarks of the sentencing Judge, Muller DCJ, in Kalgoorlie, on 4 October 1999. It would seem that Jackson DCJ did not have the benefit of those remarks at the time of his sentencing of the respondent on 4 May 2001.
Muller DCJ's sentencing remarks indicate that the respondent was convicted on his plea of guilty of indecent dealing with a child under the age of 13 years. The child, a female, was 10 years old. The respondent had approached her in an amusement arcade while he was drunk. She was with her sister at the time.
The respondent had put his hand down the front of the child's stomach and began extending his hand towards her private parts. Either the sister or the child pushed the respondent's hand away, and the respondent ran away.
As Muller DCJ indicated, the offence to which the respondent pleaded guilty was a serious one, involving the molestation of a 10‑year‑old girl in a public place. Although the learned sentencing Judge determined that what the respondent did fell at the lower end of the scale, and he did not actually touch the child's private parts, the respondent intended to do so, and would have done so, had it not been for the resistance offered.
His Honour imposed a sentence of 189 days of imprisonment under the regime in force at the time, backdated to 30 March 1999. This sentence had been completed before the commencement of the term of imprisonment which ends on 14 March 2007.
I consider that the indecent dealing offence just referred to indicates that on 4 May 2001 the offender had a prior history of sexual offending of a serious kind, even if that was not a "serious sexual offence" within Evidence Act, s 106A. I put aside the South Australian offence, of which it seems to me I know too little to form any conclusions beyond the characterisation of it as one of indecent dealing.
In addition the applicant drew my attention to the transcript of the sentencing remarks of Fenbury DCJ on 22 June 2001 on the respondent's plea of guilty to an offence of assault occasioning bodily harm. This sentencing was subsequent to that of Jackson DCJ. The offence before Fenbury DCJ was not of a sexual character, so far as appears from the material to which I have access.
Fenbury DCJ indicated the respondent had attacked a 54‑year‑old small woman in the public toilets near the Supreme Court "one night". He described the offence as a "very serious sort of offence of assault occasioning bodily harm". The sentence he imposed was one of 18 months' imprisonment cumulative on the 7 year total term imposed by Jackson DCJ for the four offences to which I earlier referred.
It seems to me in respect of the offence the subject of Fenbury DCJ's sentencing remarks that this was capable of being viewed as part of a pattern of conduct of a serious kind directed at females of dramatically varying ages, in two cases of a clearly sexual character. This is a view of the offending which I take for the purposes of the determination I must make in this preliminary hearing. I note, however, that further evidence might qualify this view in a material respect.
Counsel for the respondent put to me that the pattern of offending so disclosed was not one of serious sexual offending. I agree. However, it seems to me that the pattern is relevant to the assessment of whether or not there is an unacceptable risk that, if the respondent is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. I do not agree that the plain language of s 7(3)(d) should be read as if "serious sexual" preceded "offending". While not every pattern of offending will be relevant to the assessment described, a pattern of the sort I have described is relevant to that assessment in this case, on the material available to me at the preliminary hearing.
I further note the other offending involving violence in the prior criminal history I had, and the characterisation of the record before him of Jackson DCJ. I consider this strengthens me in the view I took of the offences the sentencings for which I have described.
It was further put to me by counsel for the DPP that the pattern referred to needed to be viewed in the still wider context of the materials I reach next that more directly went to the risk of the respondent would, if he were not subject to a continuing detention order or a supervision order, commit a serious sexual offence. I agree with that submission, with the same qualification as for the view I took of the offences the sentencings for which I described.
The materials I was referred to were of two sorts. One was the record of the respondent in relation to rehabilitative programmes he had at least commenced, and the other the respondent's Static 99 score.
As to the rehabilitative programs, I note the references in the sentencing remarks of Jackson DCJ and Muller DCJ to the condition of the respondent at the time of the commission of the respective offences for which they were sentencing him, in terms of the effect on him at those times of alcohol and other substances. Both Jackson DCJ and Fenbury J refer to the difficulties with alcohol under which the respondent had laboured. Both refer to the assessment of the high risk of his re‑offending that appeared from the material before them, and of the utility, in relation to reducing that risk, of his participation in rehabilitative programs of different sorts. I have copies of the material before them comprising the psychological report and the two pre‑sentence reports to which I earlier referred, and that material warrants the descriptions of it in those sentencing remarks.
I also have a document, entitled "Sex Offender Risk Update Report", annexed to an affidavit of the author of the report, indicating that, in December 2003, the respondent began to participate in an indigenous sex offender treatment program. However, he was "removed" from the program, in February 2004, after he was injured in an assault by another prisoner. The report says that further assessment of the respondent indicates his "psychiatric instability precludes him from attending" a further program.
There are also "records", referred to in the report, indicating the respondent completed an indigenous substance use program, in April 2003.
Further, the report refers to "file information" in relation to the review of the respondent by the Parole Board "on several occasions", on each of which he was denied parole. That information indicates the respondent refused to discuss plans "or engage with prison staff", and that he had "little or no community or social support".
I also note the conclusion from the report that the respondent had "not engaged in treatment programs which may have an impact on his risk levels", while there are also statements that he had been "frequently non‑compliant with psychiatric treatment" and "his behaviour in prison has been problematic".
I conclude from this material that there are reasonable grounds to conclude that the respondent has not to date addressed the risk levels relating to the likelihood of his committing sexual offences.
The remaining part of the "Sex Offender Risk Update Report" refers to the "Static 99" score of the respondent. This score the report tells me combines 10 "static (unchanging) risk factors have been shown to be associated with increased risk of re‑offence". The score may be used to determine whether or not the respondent should be placed in the "high risk" category, which is the top 12 per cent compared with other adult male offenders. In this case, the Static 99 score of the respondent places him in that category.
The report states that:
"[b]ased on a sample of sex offenders from Canada and the UK upon which the Static 99 was developed, this suggests that Mr Manning has a 4 in 10 chance of sexual re-offending within a 5 year period."
However, the report also says that the Static 99 has "not yet been normed on an Australian Indigenous population, although North American Indigenous offenders formed part of the sample group".
Further, with respect to the "Static 99" method I note the observations of Blaxell J in Allen (supra), at [33] that the method:
"[i]s not based upon any clinical examination but upon actuarial factors such as age, number of offences, number of appearances in court, characteristics of victims, and the like. The only one of these factors which can ever change is the offender's age, and accordingly such an assessment will always remain the same regardless of the progress or lack of progress made in treatment."
However, for my purposes at this preliminary hearing I conclude the Static 99 score is a significant indicator of the serious danger to the community with which, under Act, s 14(1), I am concerned.
I conclude from all of this material that there are reasonable grounds for concluding that the Court might, under Act, s 7(1), find the respondent is a "serious danger to the community" (Act, s 14(1)). The reasonable grounds for concluding a court might so find are principally represented by the contents of the Sex Offender Risk Update Report, considered against the background of the offending I have reviewed, particularly the offending on which the offender was sentenced as I have described.
Those contents indicate, as I have noted, participation to completion of a substance abuse program, but participation without completion of a sex offender treatment program, and the reference to the respondent's non‑engagement in treatment programs which might have an impact on his risk levels. On the evidence as I have it, there is no material which requires the removal of the Static 99 score as a basis for finding there are reasonable grounds to arrive at the finding in the Act, s 14(1). That score is, as I have indicated, based on static factors, except for age. It might then be qualified by other material that draws on changes in the respondent's position from programs he has undergone, as noted by Blaxell J, in Allen (supra), at [33]. But that material has not yet been clearly forthcoming.

I note, of course, that it is not sufficient simply to find that there are reasonable grounds for believing a court might find at the second stage hearing there is a risk the respondent will commit a serious sexual offence. That risk must be "unacceptable".
There is little guidance as to the meaning of that qualifier in the context of this legislation. I was directed by counsel for the DPP to Fardon (supra), on "nearly identical legislation in Queensland" to that before me (Williams (supra), Blaxell J, at [2]). In that case there is the following passage about "unacceptable risk" in the Queensland legislation on which counsel particularly relied.
In Fardon McHugh J said this, at [22]:
"It was argued that the test, posed by s 13(2), of 'an unacceptable risk that the prisoner will commit a serious sexual offence' is devoid of practical content. On the contrary, the standard of "unacceptable risk" was referred to by this Court in M v M [(1988) 166 CLR 69 at 78] in the context of the magnitude of a risk that will justify a court in denying a parent access to a child. The Court warned against 'striving for a greater degree of definition than the subject is capable of yielding'. The phrase is used in the Bail Act 1980 Qld, which provides that courts may deny bail where there is an unacceptable risk that an offender will fail to appear (s 16). It is not devoid of content, and its use does not warrant a conclusion that the decision-making process is a meaningless charade."
See to the same effect Gummow J, at [60] and Callinan and Heydon JJ, at [225].
I agree with counsel's submission that those dicta, translated into my context, would indicate that "unacceptable" should be taken to mean that the risk is such that the respondent, notwithstanding the expiry of his term, should be subject to the jurisdiction of the Court to make either a continuing detention order or a supervision order.
I consider that in assessing whether the risk is "unacceptable" I ought to take into account the nature of the serious sexual offending with respect to which there are reasonable grounds for believing a court might find there is a risk, as well as the magnitude of that risk.
On the material before me, particularly the pattern of offending to which I have referred, and the psychological and pre‑sentence reports to which I have also referred, it is a matter of concern that there is violence of a serious kind associated with the respondent's offending on two of the three occasions for which he was sentenced as I have described in some detail.
Further, on the material before me, particularly the "Sex Offender Risk Update Report", the risk of serious sexual offending has to be assessed as significant.
I find then that there are reasonable grounds for believing that a court might find the risk "unacceptable", that is, that the threshold set by Act, s 14(1) has been passed.

Matters that must be decided following my finding

As I have so found, the proper officer of the Court will proceed to fix a day for the hearing of the application for the Act, Div 2, order: Act, s 14(1).
Having so found, I must make the order naming the two psychiatrists as called for by the Act, s 14(2)(a).
Also, having so found I must consider whether or not to make the detention order provided for in s 14(2)(b).
As to the order as to the psychiatrists, I will follow the process commended by Blaxell J both in Williams (supra), and Allen (supra). That is, I will have the Principal Registrar name the two psychiatrists and, subject to their consent to act, their names will form part of my orders.
As to the making of the detention order provided for in s 14(2)(b), I have proceeded, as Blaxell J did in Williams (supra), at [41], and Allen (supra), at [62] to [64], and weighed:
•the strength of the case that the respondent represents an unacceptable risk to the community;
•the undesirability of depriving the respondent of his liberty pending a final determination being made; and
•the measures that can be put in place to minimise any potential risk.
I consider the case the applicant has put forward to be a fairly strong one, as I have described it.
The undesirability of depriving the respondent of his liberty is a significant factor, as Blaxell J has indicated in those two cases.
Finally, I note that I have evidence, in the "Sex Offender Risk Update Report", that the respondent has no community or other supports for his release from custody that might assist him in dealing with the possibility of committing sexual offences. That state of affairs, on its own, is not necessarily determinative, in my view, in view of the second factor I have described. Indeed, the position of the offender in Allen (supra) appears to have been of that sort, and that did not prevent Blaxell J concluding he would adjourn the preliminary hearing as to the making of the order, the effect of which was not to require the offender's return to custody.
However, in Allen the offender had a program of medication for the control of the urges that had contributed to his prior offending, and he had provided a "detailed" undertaking as to the offender's place of residence, the monitoring of his daily activities and the avoidance of certain places where there were children about (Allen (supra), at [12]).
In this case, counsel for the respondent explained to me the respondent planned on his release from custody to proceed to an aboriginal community, Coonana. This community, which was not on his land, is one where he has persons prepared to receive him. The community is, however, about 100 kilometres east of Kalgoorlie. I was told there is a regular program of police visits to the community, but no other police or other presence there which could receive regular reports from and monitor the respondent in Allen (supra).
Following these explanations, I adjourned the hearing for a short time to enable counsel for the respondent to obtain further instructions from his client about the nature of the arrangements for him at Coonana, and any other details about the respondent's plans that might assist me to evaluate further how the respondent's proceeding there might reduce the risk of concern to me.
Following that adjournment, counsel for the respondent explained to me that the information he had received indicated that, apart from the visits from the police to the community to which I have referred, and "no doubt" the elders, there were no facilities there of the sort in Allen (supra).
Further, the respondent's stay at the community would make difficult the arrangements for the psychiatric examinations provided for by my orders and called for by Act, s 37. The respondent would have to leave the arrangements in the community and travel to Perth for the purpose, which would create difficulties of its own.
In the circumstances as so explained to me, I have concluded that the arrangements suggested that might be put in place to minimise the risk of concern to me have not been shown to me as sufficient for the purpose. However, I consider that further information about those arrangements is capable of being assistance to the Court at the final or second stage hearing in this case.
I therefore indicated I would make a custody detention order under Act, s 14(2)(b).

My orders

Accordingly, my orders were those I have referred to in the previous section of my reasons, following the minute of orders prepared for the DPP.
In addition, however, I made a number of programming orders for the second stage hearing, pursuant to my power to do so in Act, s 43. These orders were made at the suggestion of counsel for the DPP, and without objection from counsel for the respondent.
The programming orders were:
•that Community Justice Services undertake a home assessment of the respondent's proposed residence at Coonana Community by 11 April 2007;
•The home assessment to be provided to the Court-appointed psychiatrists prior to the completion of their reports; and
•The Court-appointed psychiatrists to provide their reports to the counsel for the applicant and the respondent by seven days prior to the final hearing.