The State of Western Australia v
[2007] WASC 172
•31 JULY 2007
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| CITATION | : | THE STATE OF WESTERN AUSTRALIA -v- D'ARCY-SEARLE [2007] WASC 172 |
| CORAM | : BLAXELL J | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN |
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AND
OTTO SHEAMUS D'ARCY-SEARLE
Respondent
Catchwords:
Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for supervision order - Whether or not respondent a serious danger to the community - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 8, s 17
Result:
Order that the respondent be subject to supervision for 1 year
[2007] WASC 172
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):
The State of Western Australia v Latimer [2006] WASC 235
[2007] WASC 172
BLAXELL J
BLAXELL J: This is an application under s 8 of the Dangerous Sexual Offenders Act 2006 (WA) ("the Act") for an order pursuant to s 17(1)(b) that the respondent be subject to supervision for a period of 1 year following the expiration of his sentence.
2 The respondent is 65 years of age and until 8 May 2007 was serving
terms of imprisonment imposed in 2000 for numerous offences of a sexual nature committed against four young boys. However, at the preliminary hearing on 2 April 2007 an order was made under s 14 of the Act that the respondent remain in custody until the present application could be finally heard.
3 The matter ultimately came on for hearing before me on 13 June
2007, and I reserved my decision. Pending the delivery of that decision (and given that the applicant was not seeking a detention order), I released the respondent from custody subject to him entering into an interim written undertaking to abide by the terms of the proposed supervision order.
The offences of which the respondent was convicted
4 On 4 April 2000 the respondent appeared in the District Court,
pleaded guilty to and was convicted of 40 counts of indecent dealing, 28 counts of gross indecency, 1 count of unlawful carnal knowledge, 1 count of attempted unlawful carnal knowledge, 7 counts of permitting unlawful carnal knowledge, 24 counts of inciting indecent dealing, 1 count of indecent assault and 2 counts of procuring gross indecency. Those offences were committed over an approximate five year period between 1978 and 1982 against four boys of varying ages between 10 years and 15 years.
5 During that period the respondent was aged between 36 and 41 years,
and he was the coach of a junior soccer team based in the northern suburbs of Perth. It was because he held that position that he first came to know three of his young victims. The fourth victim was the son of a woman who had rented a room to one of the respondent's friends.
6 The respondent's relationships with all four victims commenced in
1977 or 1978 when they were either 10 or 11 years old. The parents of the boys had sufficient trust in the respondent to allow their sons to spend time in his company. Unbeknown to them, the respondent had a sexual interest in each boy and was grooming him with a view to committing the offences that ultimately occurred.
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7 The offences were committed while the boys were with the
respondent at his home, on camping trips, or while accompanying him on country tours. Very often two or more of the boys were in the respondent's company together at the time that offences occurred. Many of the offences also involved a co-offender who was a young male adult living with the respondent at that time.
8 The respondent's pattern of offending with three of the victims was
essentially the same. It commenced with acts of genital fondling, masturbation and fellatio committed by him on the boy, which progressed to having the boy masturbate him. Offences of this type were regularly committed over a number of years, but as each boy grew older, he was also incited to anally penetrate the respondent. Ultimately, there were also acts of anal penetration by the respondent of each of those three boys. Sometimes two of the boys were incited to commit indecent acts on each other.
9 There were only two offences committed on the fourth victim, and
these occurred on a single occasion during a camping trip to Garden Island when the boy was 11 years of age. The respondent masturbated the boy and also committed a separate act of minor indecency.
Other offences admitted by the respondent
10 In the course of his counselling and treatment within the prison
system, the respondent has admitted numerous other offences of a similar kind. Although these admissions significantly increase the extent of the respondent's known wrong doing, it is obviously to his credit that he volunteered this information in circumstances where there was virtually no chance of those offences ever coming to light.
11 The commencement of the respondent's offending should be viewed
against the background of his upbringing in South Africa. His father was an alcoholic, his parents had an unhappy marriage, and there was much violence in the home. One of the court appointed psychiatrists describes the respondent as having had "an abusive, chaotic and confused childhood" with much of that time spent at boarding school. From the age of 12 when the respondent was seduced by a 16-year-old boy, he regularly engaged in homosexual activity. However as the respondent grew older he continue to prefer such activity with boys aged between 10 and 16 years.
12 After leaving school, the respondent joined the South African Navy,
and it was during this time that he committed his first significant offence.
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At the age of 19 while living with his mother's cousin he molested the cousin's 12-year-old son. The boy told his mother what had happened, and the respondent was forced to leave. While still in the Navy, the respondent volunteered to become a Scout Leader, and within a couple of months he was starting to offend against young scouts under his care. Over the following few years as a Scout Leader he molested a large number of boys on weekends and holidays and while on camps.
13 Notwithstanding this offending, the respondent at all times regarded
his homosexuality as morally wrong, and he voluntarily sought psychiatric counselling. He also attempted to develop heterosexual relationships, and at the age of 23 became engaged for the first time. However he had difficulties with sexual arousal while in his fiancé's company and the engagement came to an end when he molested her sister's three sons aged 10, 12 and 14 years.
14 It was not long afterwards that the respondent obtained a position as
a junior soccer coach in Durban so that he could have access to young boys. He nevertheless became engaged a second time in an attempt to overcome his homosexuality, but this relationship ended in similar circumstances when he molested his fiancé's 15-year-old brother.
15 In 1971, when the respondent was 29 years of age and still living in
South Africa, he married for the first time. The relationship with his wife was his first real heterosexual experience and he ceased his previous pattern of offending for approximately three years. The couple migrated to Australia in 1972 and there were two daughters of the marriage.
16 However during 1975 the respondent reverted to his previous
behaviour when he picked up a 15 year old male hitchhiker whom he befriended and started grooming for sexual purposes. This resulted in a long term sexual relationship which continued when the boy became an adult, and it was because of his wife's discovery of this that he became divorced in 1979.
17 Over the following 13 to 15 years the respondent and his younger
friend lived together, and it was this same young man who was the co-offender in many of the offences committed by the respondent between 1978 and 1982. In 1982 they travelled to Queensland where they both became involved in further offences against young boys. According to the respondent, the last of those offences occurred during 1985, and he has not committed any other offence since.
[2007] WASC 172
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The respondent's subsequent lifestyle
18 The respondent was raised as a Catholic, but during the mid-1980s
he became interested in Christian denominations of an evangelical kind. He claims that as a result of being questioned by Queensland police in 1985 about his activities with young boys, he fully committed himself to his then church in an endeavour to change his behaviour. He also claims to have undergone a "form of conversion" while attending a spiritual seminar following which he stopped seeking sex with young males, and also ceased his long standing homosexual relationship with his co-offender. The applicant has had the opportunity to assess these claims, and does not dispute the respondent's assertion that he ceased all offending after 1985.
19 At about the same time the respondent also made an unsuccessful
attempt to reconcile with his wife. He further claims that during 1987 he travelled to Western Australia where he located three out of the four victims the subject of his subsequent convictions, to whom he made personal apologies. Yet again, the applicant does not dispute this claim.
20 Between 1987 and 1992 the respondent moved to New South Wales
and Victoria and then back to Queensland where he met his second wife during 1992. They married in 1994 and remained together until the respondent's imprisonment in 2000.
21 During the last few years prior to his arrest, the respondent was
living in Queensland with his wife, was regularly attending church, was gainfully employed, and had a large social support network. That network was mainly within his church, and there were numerous people including his wife, close friends, and pastor to whom he confessed his past offending. Following those confessions, the respondent continued to receive support from most of those around him, and that support continued throughout his imprisonment and up until the present day. (The strength of that support was demonstrated when the respondent's pastor and a number of other supporters travelled from Queensland to be present at the final hearing of the present application.) Throughout this period the respondent also had the support of members of his family including his sister who lived in New South Wales.
Assessment and treatment of the respondent while in prison
22 Following his arrest, the respondent made a full confession to the
police, and also entered early pleas of guilty to all of the charges against
him. He was sentenced to a total of 11 years imprisonment with parole.
[2007] WASC 172
BLAXELL J
23 Upon entering the prison system the respondent was assessed and
recommended for inclusion in an Intensive Sex Offender Treatment program. However, the subsequent attempts at treatment were largely unsuccessful because the respondent, while acknowledging his previous sexual attraction to young boys:
"… denied any current interest or fantasy, stating that his 'faith' and 'religious scriptures' have enabled him to 'turn away from sin'. Due to this insistence throughout the program, [the respondent] was not willing to engage in treatment to gain any insight into his sexual interest in young males.
…At some points in the program [the respondent] acknowledged that he was still primarily attracted to teenage boys, yet generally he denied any current fantasies or interest in this group. His denial prevented him from looking at how he could manage his sexual attraction to this group, other than through prayer or religious instruction."
The treatment report (dated 29 June 2005) also noted that:
"During the program [the respondent] developed a relapse prevention plan outlining strategies for dealing with potential high-risk situations in the community. His plan was heavily reliant on support he anticipated receiving from his pastor and church community, as well as his family. As noted above he has failed to adequately plan for issues relating to fantasy, pre-occupation and intimacy deficits, however, adherence to the plan he has established will enable [the respondent] to manage to some extent the level of risk he currently presents. As such it is recommended that should [the respondent] be granted parole, his relapse prevention plan should be a central component of his ongoing contact with community justice services."
25 On 6 July 2005 the respondent was released to parole in New South
Wales where arrangements had been made for him to live with his sister. However, his arrival in that State was accompanied by considerable media publicity as to his whereabouts, which resulted in those living arrangements becoming untenable. It was for this reason alone that parole was suspended on 18 August 2005 and the respondent returned to prison in Western Australia. He remained in prison and continued to serve to his sentence until his parole expiry date on 8 May 2007.
[2007] WASC 172
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26 During this period there was a further attempt at treatment under the
Sex Offender Treatment Program, and on 11 January 2006 the Senior Programs Officer prepared an assessment report which included the following comments:
"With respect to his use of fantasy, [the respondent] acknowledged having engaged in sexual fantasies specific to his interest in young males in the past. He stated, however, that he no longer engaged in sexual fantasies at all, expressing his belief that there is no 'appropriate form of sexual fantasy'. He once again stated that this belief was based on his understanding of scripture. In discussing his sexual interests and use of fantasy [the respondent] evidenced rigid and inflexible attitudes, apparently informed by his religious beliefs. In relation to his treatment, [the respondent] expressed his belief that the facilitators' requests that he explore his sexual interests and fantasy ran counter to his religious principles. As such, it seems unlikely that [the respondent] would engage with treatment focussing on these aspects of his offending behaviour.
In discussing the issue of sexual preoccupation [the respondent] stated his belief that his 'sexual preoccupation shifted prior to the program'. He reported that sex was no longer the 'dominant aspect' of his life and that 'all my fantasies and interests are non-sexual'. When asked what alternative focuses he had explored in shifting his sexual preoccupation and corresponding offending behaviours, [the respondent] reported having effectively substituted his sexual preoccupation with his focus on religion and having restructured his lifestyle around that. He reported where he had once focussed on his offending behaviours he now 'focussed energy into leading people to Christ'. Whilst [the respondent] appeared genuine in disclosing the functional nature of his religious beliefs and involvement in the Pentecostal community, the simplistic nature of his understanding of his sexual preoccupation appears to reflect a lack of insight into its relationship with his offending behaviour. As noted previously, his rigidity around these beliefs would likely act as a barrier to further intervention to address this issue.
[The respondent] reported that whilst he had previously felt more comfortable in the company of children, specifically young boys, he had some time ago made the 'quality decision' to
[2007] WASC 172
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engage in age appropriate relationships. This appeared to centre on his desire to form relationships with 'like-minded people', which on further exploration specifically referred to people involved in the Pentecostal or evangelical religious community.
…
Throughout the interview [the respondent] focussed on coping strategies he engaged with that he believed reduced his level of risk. He stated 'I don't believe I'm a danger of reoffending' as he now 'knows how not to offend'. These strategies were generally focussed on image management and did not appear to consider the pervasive nature of his sexual interest in young males and the intensity of his sexual preoccupation. Once again, [the respondent's] capacity to develop effective, adaptive coping strategies appears to be impacted upon by his denial of any current deviant or homosexual interest or fantasy, as well as his belief that he has adequately addressed his offending behaviours. It is noted, however, that [the respondent's] strategy of drawing support from the church community does appear to have some positive impact in that it provides support for a non-offending lifestyle.
…
[The respondent's] disclosures during the interview evidenced outstanding treatment needs in the areas identified by program facilitators at the conclusion of his participation in the Intensive Sex Offender Treatment Program. It is noted, however, that [the respondent's] rigid belief structure around his offending behaviour and his attitudes towards the therapeutic process have not altered since his participation in that program and continue to present a barrier to effective therapeutic intervention."
27 On 11 October 2006 the respondent commenced a series of nine
individual counselling sessions, and although he questioned the need for this treatment he actively pursued the recommended counselling and cooperated with all that was asked of him. In the end, the respondent's attitudes towards treatment and his assertion that his religious beliefs would prevent any further offending did not change.
[2007] WASC 172
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The opinions of the independent psychiatrists
28 At the preliminary hearing of the application the Court appointed the
psychiatrists Dr Mark Hall and Dr Gosia Wojnarowska to examine the respondent in accordance with s 37 of the Act. Their subsequent assessments were extremely thorough, and even though the two experts have provided differing opinions, I have found their reports to be of great assistance in coming to my decision.
In her report dated 30 May 2007, Dr Wojnarowska expressed the following opinion:
"It was difficult to explore [the respondent's] sexuality and his attitudes towards offending as he took a very strong stance against what is moral and what is not. As such, he has not allowed himself to explore his deeper thoughts and urges. These can be perceived as a defence mechanism called denial which protects [the respondent] from disintegration of his psyche. … His rigid defence mechanism does not allow him to integrate his sexual deviance to his personality. As a result by not accepting the fact that he is a paedophile he has been compromising his ability to master the concept and as such he compromises his ability to optimise the level of control over his deviance. Instead he chooses to separate himself from the 'old offending Otto' who is 'totally heinous' and who 'does not exist anymore' and into the 'new Otto' who is devoid of any sexual impulses. This can be perceived as [the respondent's] major weakness as by not having internal control he must rely on others such as the community to provide him with that. [The respondent's] religious beliefs and insight are not sufficient to protect him from him experiencing deeper sexual urges which are one of the strongest primary forces driving human beings."
Her report further states that:
"The results of clinical and actual risk assessments indicate that [the respondent's] risk of reoffending is in the moderate range and this is rather an underestimation than overestimation of the status quo. Given that [the respondent's] offences have been against children the expected harm, especially long term psychological damage to the potential victims cannot be underestimated. [The respondent's] strategy to protect himself from reoffending appears to rely on the other's knowledge of him and his faith that in choosing a religious pathway and
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adhering to Christian values will suffice. It is the author's belief that [the respondent] is genuine in his desire to not reoffend however by not allowing himself to explore his deviance he leaves himself vulnerable to unpredictable circumstances. In order to manage [the respondent's] risk in the community the following conditions should be met:
1. [The respondent] should not reside less than 200 metres from any place that children are likely to congregate.
2. [The respondent] should never be left alone with a child.
3. [The respondent] requires regular, at least two weekly monitoring by the Australian National Child Sex Offender Register (ANCOR) and that should include [the respondent] giving permission to monitor his social activities, travel movements and any changes to his appearance.
4. He should disclose the details of his electronic devices and not be permitted to use an internet café or wireless communication.
5. [The respondent] should have no contact with the clubs and associations where the members are primarily children.
6. [The respondent's] activities in church should be closely monitored.
7. [The respondent] should give ANCOR permission to interview and assess his potential social supports and friends.
8. [The respondent] should give ANCOR permission to disclose his offences to people with whom he establishes relationships be it intimate or social.
9. [The respondent's] further engagement in counselling has been recommended by his individual therapist. It is however the author's opinion that given his personality structure and his lack of trust especially when a new therapist is appointed that further treatment may prove to be of limited value."
[2007] WASC 172
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Dr Mark Hall, in his report dated 2 June 2007 summarised certain information obtained from some of the respondent's close acquaintances:
"Collateral history was obtained from members of [the respondent's] nominated social supports. [The respondent's] pastor in Queensland [Pastor M], said that he had known [the respondent] for ten years and that at the start of their relationship [the respondent] had confessed his offending. He said that he has always maintained a close relationship with [the respondent] and has been speaking to him on weekends for the past eight years. [Pastor M] said that [the respondent] had a wide and supportive network in Queensland. He said that in the time he had known [the respondent] he had always considered him to be reformed and honest, but had maintained vigilance with respect to [the respondent's] access to children. A similar impression was gained from [the respondent's] friend, [Mr M]. He has known [the respondent] for the last ten years, and said that their relationship continued and even became stronger after [the respondent] confessed his offending behaviour. [Mr M] said that [the respondent] had always impressed him as a consistent, genuine and supportive individual. … [Mr R] from the Prison Fellowship has known [the respondent] for the past three years and has had extensive contact with him in prison. He said that [the respondent] has a positive attitude to others and always makes a genuine effort to assist others in need. [Mr M] had had experience with sex offenders through the Prison Fellowship and stated emphatically that he believed [the respondent] to be rehabilitated."
In assessing the risk of the respondent reoffending, Dr Hall states that: "It is not possible to predict recidivism with unequivocal accuracy. However, the use of risk assessment tools can improve predictive accuracy, particularly when used in combination with clinical judgement."
31 Dr Hall's report then outlines the various accepted methods or "tools"
that can be applied to measure the risk, one of which is the "Risk for
Sexual Violence Protocol (RSVP)". His report then goes on to state:"When applying the RSVP to [the respondent], the future relevance of particular risk factors was difficult to determine. This was because many of his protective features are intrapsychic or social and cannot be quantified or easily
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predicted. However, the twenty-two years (fifteen in the community) that have passed since he last offended must be taken into account as having predictive value. The risk factors for reoffending that were significant in [the respondent's] case were the likelihood of experiencing high amounts of stress in the community related to his notoriety, media coverage and placement issues. Although this would not be expected to impair his functioning it may cause [the respondent] significant distress. Another future risk factor was that of ongoing problems resulting from child abuse. This currently manifests as an ongoing over-moralistic and obsessional coping style, and in his youth was manifest as a significant disturbance of personality and emotional functioning. The confirmed history of sexual deviance is another future risk factor. [The respondent] has experienced almost exclusive homosexual arousal with a preference for prepubescent and young adolescent males. Although [the respondent] acknowledges the potential for this to be underlying, it is heavily defended against and could be considered to be in a kind of 'latent' state. However, this 'latency' may also place him at risk of complacency. Another significant risk factor for the future is the potential problems with intimate relationships. Although in prison he has had no opportunity, the potential for future intimate relationships is likely to be affected by his notoriety as well as 'unprocessed' issues surrounding his sexuality. ...
… Although [the respondent] has previously offended after a time at risk as low as two months, the last twenty years would suggest that it would be most likely now take a long period of time before any offending behaviour would re-emerge. This would require involvement with children on a regular basis and, therefore, warning signs might be clandestine relationships with children or withdrawal from his Church or any supervision or support networks. His religious devotion, high level of support from within his Church community and the level of supervision he is likely to receive within that community make it less likely that such a scenario would occur in the future. Preventative measures would be to know of any access [the respondent] might have to children, to have ongoing contact with his social supports particularly to whom disclosure has been made, and to adhere to the principle of engaging in social or occupational activities that have no access to children. He would benefit
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from supportive counselling but, for the reasons previously stated, insight oriented or intensive psychotherapy is unlikely to yield any positive benefit. Weekly supportive contact with his pastor may be adequate as a vehicle for 'reinforcement' of his protective behaviours."
Dr Hall's report then summarises his opinions and recommendations
as follows:
"For the reasons outlined in this report it is my opinion that [the respondent] is at moderate to low risk of committing a serious sexual offence if not subject to a continuing detention or supervision order.
[The respondent's] case is a complex one given the interaction between his religious conviction and his personality, particularly his rigid, rule-based approach to life and his capacity to dissociate thought and emotion. This interaction proved to be a negative factor in terms of progress in the Sex Offender Treatment Program but his outstanding treatment needs should be interpreted with caution. [The respondent's] religiosity and rigid adherence to the rules of 'not offending' are not superficial, but rather entrenched over an extended period of time. They are a currently positive and protective manifestation of an intense psychological defensive style. This style has been protective against offending for many years despite him having never gained the psychological insights desired in therapy. The benefit of ongoing therapy directed towards integrating his difficulty in accepting his behaviour in its entirety and enhancing his emotional expression and experience should be questioned given that he has spent fifteen years in the community prior to his arrest without offending, and that deconstructing his emotional defensive mechanisms may be both unnecessary and potentially destabilising. In order for any gains to be made in that arena, he would require a prolonged psychotherapy relationship with a single consistent therapist with whom he felt safe, and with whom a strong therapeutic alliance existed. Firstly, this is unlikely to be the case with any 'imposed' counselling, such as court ordered, and secondly, would be of less benefit overall than a more 'supportive' approach that would serve to 'reinforce' his protective behaviours on a continuous basis.
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…
Should the Court make a supervision order under Section 17(1)(b) of the Act, then I respectfully recommend that consideration be given to the following conditions:
• No unsupervised contact with children under the age of 16 years. • He receive ongoing counselling, at least fortnightly, for the purpose of maintaining a level of disclosure and for reinforcement of existing preventative strategies If [the respondent] is released into the community, it is expected that he will receive high levels of supervision and support within his Church community over and above anything imposed under the Act. Therefore, for the purpose of Section 18(2) I can make no additional recommendations, from a psychiatric point of view, over and above the strategies already in place within his social support network that could assist with [the respondent's] rehabilitation, care or treatment should the decision of the Court be to make a supervision order under Section 17(1)(b) of the Act. "
The regime that will apply to the respondent regardless of any supervision order
33 Because of his convictions, the respondent is a "reportable offender"
within the meaning of s 6 of the Community Protection (Offender Reporting) Act 2004 (WA). Accordingly, and pursuant to s 46 of that Act, the respondent will be subject to reporting obligations for the next 15 years even if I do not grant the present application.
34 In this regard, he will already have been required to register with the
Australian National Child Sex Offender Register (ANCOR) and to report to that organisation as and when directed. In Western Australia, ANCOR comprises a central hub of specialist police officers as coordinators and a wider network of officers working in all localities across the State. Equivalent units are to be found in every State and Territory, and child sex offenders are subject to varying degrees of supervision dependent upon where they located, the seriousness of their past offending, and their perceived future risk to the community.
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35 Throughout the reporting period, the respondent will be required to
inform ANCOR about his place of residence, employment, social contacts, leisure activities, and travel plans. He can also be required to disclose the description of any motor vehicle that he purchases or uses, and to advise of any changes he makes with respect to transport arrangements. He will also be required to reveal any changes to his appearance such as hair style, hair colour, beard shape and colour, spectacle frames, tattoos, or any other distinguishing marks. If he changes residence to another area, such as another State, then he will be required to inform ANCOR personnel and to comply with conditions of reporting at his new location.
The legislative provisions governing the application
36 I may only order that the respondent be subject to supervision under
the Dangerous Sexual Offenders Act 2006 if I find that he is "a serious danger to the community". In the circumstances of the present case s 7 effectively provides that I may make that finding if I am satisfied that there is an "unacceptable risk" that the respondent would commit a serious sexual offence if he was not to be the subject of a supervision order.
37 Section 7 also provides that the applicant bears the onus of satisfying
me that there is such an unacceptable risk, and it must do so by acceptable
and cogent evidence, and to a "high degree of probability".38 In deciding whether to find that the respondent is a serious danger to
the community, s 7(3) specifically requires me to have regard to the
following factors:"(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;
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(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."
39 Given that the applicant is not seeking a continuing detention order,
the essential question to be determined in the present case is the degree of risk that the respondent will commit a serious sexual offence if he is not subject to a supervision order. I should be satisfied that that risk is unacceptable if it is "a real risk of substance, not merely a remote possibility" (Murray J in The State of Western Australia v Latimer [2006] WASC 235 at [16]).
40 If I do find that the respondent is a serious danger to the community,
then it is inevitable in the particular circumstances of the present case that
I would come to the conclusion that there should be a supervision order.
Whether the respondent is a serious danger
41 The facts of the present case are most unusual in that the respondent
was a paedophile with a seemingly entrenched pattern of behaviour between his late teenage years and the age of 43, but then ceased his offending altogether. The respondent's claim that he completely changed his ways in 1985 would be difficult to believe if it had not been corroborated by those who knew him during the following 15 years leading up to his arrest.
42 In this regard, the fact that the respondent confessed his past
offending to fellow members of his church, and travelled to Western Australia to seek out and apologise to his victims, obviously lends great weight to his claims. Further corroboration can be found in his readiness
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to plead guilty to all of the charges against him, and his volunteering of information as to other offending when there was no obligation or advantage in him doing so.
43 It is also significant that the psychiatrists both accept that the
respondent is genuine in his desire not to reoffend, and that it is his religious beliefs that have brought about this situation. Clearly, it was the respondent's religious conversion in 1985 and his subsequent belief system that has enabled him to avoid reoffending. In this regard, Dr Hall is undoubtedly correct in his opinion that the respondent's religiosity and rigid adherence to rules "has been protective against offending for many years despite him having never gained the psychological insights desired in therapy".
44 It is therefore something of a paradox that the respondent's rigid
belief system has had a positive effect in enabling him to avoid further offending, yet at the same time has made him unsuitable for the type of treatment available in prison under the Intensive Sex Offender Treatment Program. In this regard, I accept Dr Hall's opinion that intensive treatment of this type would deconstruct the respondent's emotional defence mechanisms, and that this might be "unnecessary and potentially destabilising".
45 Dr Hall's opinion that "insight orientated or intensive psychotherapy"
of the type offered within the prison system is unlikely to yield any positive benefit is shared by Dr Wojnarowska who considers that such treatment "may prove to be of limited value". In light of these opinions, I consider that it would be inappropriate for the respondent to undergo further intensive psychotherapy. Such treatment could well be counterproductive in that it could increase rather than diminish the risk of him reoffending.
46 Nevertheless, Dr Hall is of the view that the respondent's "existing
preventative strategies" require reinforcement by ongoing supportive counselling (which can be provided from within his church). Dr Hall also considers that the most significant risk factor for reoffending is that the respondent will experience stress as a result of notoriety, further media coverage, and placement issues. These are all matters which obviously necessitate some degree of supervision.
47 Similarly, Dr Wojnarowska considers that the respondent is
"vulnerable to unpredictable circumstances". For that reason, she is of the opinion that the risk posed by the respondent should be managed by the
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imposition of monitoring conditions over and above those that would be
provided by ANCOR.
I have no hesitation in accepting these opinions and recommendations from Dr Hall and Dr Wojnarowska. Accordingly, I am satisfied that there is an unacceptable risk that the respondent would commit a serious sexual offence if he was not subject to a supervision order. For that reason, I find that he is a "serious danger to the community" within the meaning of s 7 of the Act.
Conclusion
49 The paramount consideration is the need to ensure adequate
protection of the community. For the reasons stated I have decided that the respondent should for a period of 1 year from the date of his release from prison (or until further order) be subject to supervisory conditions. The parties have already agreed upon and submitted a draft of an appropriate supervision order, and I now make an order in those terms.