The State of Western Australia v A
[2018] WASC 250
•17 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- A [2018] WASC 250
CORAM: CORBOY J
HEARD: 26 & 27 JUNE, 6 JULY 2018 (WRITTEN SUBMISSIONS)
DELIVERED : 17 AUGUST 2018
FILE NO/S: DSO 1 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
A
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for div 2 orders - Whether the respondent is a serious danger to the community - Whether a continuing detention order or a supervision order should be made
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17
Result:
Respondent declared to be a serious danger to the community
Supervision order to be made
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Mr P G Giudice |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | George Giudice Law Chambers |
Case(s) referred to in decision(s):
Ah Hing v Hough [1926] WAR 95
Damaso v R [2002] NTCCA 2
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; 38 WAR 307
Director of Public Prosecutions (WA) v Pindan [No 4] [2017] WASC 271
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; 35 WAR 297
Director of Public Prosecutions (WA) v Yates [2014] WASC 136
Maxwell v Murphy (1957) 96 CLR 261
MCP Muswellbrook Pty Ltd v Deutsche Bank (Asia) (1988) 12 NSWLR 16
Re Attorney‑General's Reference No 1 of 2004 [2005] TASSC 10
Richardson v Shipp [1970] Tas SR 105
Rodway v R (1990) 169 CLR 515
The State of Western Australia v Bentley [2018] WASC 135
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v West [2013] WASC 14
Wheeler, Grace & Pierucci Pty Ltd v Wright (1989) 16 IPR 189
CORBOY J:
The respondent has been convicted of various serious sexual offences.[1] In December 2015, the State applied for orders under s 14 and pt 2, div 2 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). Justice Mitchell allowed the application for orders under s 14 on 2 February 2016.
[1] The victims of the respondent's offending were children. Their names have been anonymised in these reasons. The citation for these proceedings has also been anonymised to protect the identity of the respondent's victims.
Further charges against the respondent were pending at the time the s 14 orders were made. The respondent was subsequently convicted of those charges and sentenced to 2 years imprisonment. That term was ordered to be served cumulatively on sentences of imprisonment that the respondent was then serving. In December 2016, Jenkins J directed that the State's application for a div 2 order be adjourned rather than discontinued to accommodate the additional sentence imposed on the respondent.
For the reasons that follow, I find that the respondent is a serious danger to the community. I further find that the community can be adequately protected if the respondent is released from custody subject to a supervision order.
The respondent's personal history
The respondent was born on 20 January 1967.[2] He had a difficult childhood and adolescence. He reported having felt unhappy and disconnected from his parents. He described his father as an alcoholic who was violent towards his mother. He sought to intervene in his parent's arguments but was hit by his father when he did so.
[2] The respondent's personal history has been taken primarily from reports that were prepared in the past for sentencing and from information contained in reports ordered by the court for the purpose of these proceedings. The reports, of course, reproduce the history given by the respondent.
The respondent's parents separated when he was aged around 10 to 12 years. He lived for a short while with his father in Darwin and then with his mother in Victoria. His mother entered into another relationship characterised by abuse and the respondent resumed living with his father. However, it appears that he continued to have regular contact with his mother.
Unsurprisingly, the respondent suffered from behavioural problems as a child and adolescent. He reported experiencing suicidal thoughts, episodes of head banging and holding his breath until he passed out and feelings of anxiety and anger. He also described a traumatic event that occurred when he was a child which appears to have assumed some significance in his mind over the time he has been in custody.
Although his mother consulted a general practitioner on at least one occasion about his behavioural problems, the respondent's difficulties remained largely unexplored and untreated. The author of a pre‑sentence report prepared in December 2015 noted that the respondent considered he might suffer from Asperger's Syndrome.[3] The respondent and his mother advised the author of the report that there was a history of autism within the families of the respondent's parents. However, the respondent has subsequently queried the possibility that he suffers from the condition.
[3] Pre-sentence report dated 30 December 2015; Exhibit 1, 703.
The respondent attended a number of schools. However, he completed Year 12 despite the interrupted nature of his schooling and his behavioural and associated social problems. He worked in various occupations after leaving school - a draftsman, surveyor's assistant, tyre fitter and mechanic.
In about 1996, the respondent suffered a significant injury to his knee as a result of which he was unable to continue working as a tyre fitter. He received a disability pension but worked intermittently as a computer technician after obtaining appropriate qualifications.
The respondent reports that his first sexual experience occurred at a very young age. He had a number of casual relationships in his adolescence.
The respondent was married in 1990. He has four children from marriage - two daughters, CD and EF, and two sons. He separated from his wife in 2003. The children spent time residing with both him and his wife following the separation. It appears CD was staying with the respondent when he committed the offence against AB.[4]
[4] The offence occurred in December 2003.
The respondent admits he had a number of affairs during his marriage. He described requiring constant stimulation and would feel lonely and sexually frustrated after the initial infatuation faded.[5]
[5] See report of Dr Wojnarowska dated 11 March 2018; Exhibit 1, 751.
The respondent was involved in several relationships after he separated from his wife. One relationship was with the mother of three girls, GH, IJ and KL.
The respondent was first sentenced to a term of imprisonment in May 2009. He has been in custody since August 2007. He participated in various counselling and treatment programmes while in custody: Pathways Programme in 2010; Sex Offenders Treatment Programme in 2011 (the First SOTP) in 2011 and the Intensive Sex Offenders Treatment Programme in 2017 (the Second SOTP).
The respondent's history of serious sexual offending
The respondent was first convicted of a serious sexual offence on 3 May 2004. He pleaded guilty to a charge that on 24 December 2003, at Rangeway, he indecently dealt with AB, a child between the ages of 13 and 16 years and who was then under his care, supervision or authority. The respondent was sentenced to a community based order for a period of 12 months with conditions imposed requiring him to undertake whatever counselling was considered appropriate by Community Justice Services.
On 5 November 2008, the respondent pleaded guilty to five further charges of serious sexual offending:
(1)On a date unknown between 1 January 2001 and 31 December 2001 at Geraldton, the respondent sexually penetrated CD, a child who he then knew to be his lineal relative, by penetrating her vagina with his penis.
(2)On a date unknown between 1 January 2005 and 31 December 2005 at Geraldton, the respondent sexually penetrated EF, a child who he then knew to be his lineal relative, by penetrating her vagina with his penis.
(3)On a date unknown between 1 January 2006 and 11 December 2006 at Geraldton, the respondent sexually penetrated CD, a child who he then knew to be his lineal relative, by penetrating her vagina with his penis.
(4)On a date unknown between 1 January 2006 and 31 December 2006 at Geraldton, the respondent sexually penetrated EF, a child who he then knew to be his lineal relative, by engaging in cunnilingus.
(5)On a date unknown between 1 January 2006 and 31 March 2007 at Geraldton, the respondent indecently dealt with EF, a child who he then knew to be his lineal relative, by touching her vagina.
The total effective sentence imposed in the District Court was 8 years imprisonment.
On 28 April 2014, the respondent pleaded guilty to two further charges of serious sexual offending:
(1)On a date unknown between 1 December 2003 and 1 February 2006 at Rangeway, the respondent indecently dealt with GH, a child under the age of 13 years, by touching her vagina.
(2)On a date unknown between 1 December 2003 and 1 February 2006 at Rangeway, the respondent sexually penetrated GH, a child under the age of 13 years, by penetrating her mouth with his penis.
The respondent was sentenced to a total effective sentence of 9 months imprisonment to be served cumulatively on the terms of imprisonment he was then serving.
On 22 February 2016, the respondent pleaded guilty to five further charges of serious sexual offending:
(1)On a date unknown between 1 December 2003 and 1 February 2006 at Rangeway, the respondent indecently dealt with IJ, a child under the age of 13 years, by touching her vagina with his hand.
(2)On a date unknown between 1 December 2003 and 1 February 2006 at Rangeway, the respondent indecently dealt with IJ, a child under the age of 13 years, by touching the front of her body with his hand.
(3)On a date unknown between 1 December 2003 and 1 February 2006 at Rangeway, the respondent indecently dealt with IJ, a child under the age of 13 years, by thrusting his penis in between her thighs.
(4)On a date unknown between 1 December 2003 and 1 February 2006 at Rangeway, the respondent indecently dealt with KL, a child under the age of 13 years, by touching her vagina with his hand.
(5)On a date unknown between 1 December 2003 and 1 February 2006 at Rangeway, the respondent sexually penetrated KL, a child under the age of 13 years, by penetrating her vagina with his penis.
The respondent was sentenced in the District Court to a total effective sentence of 2 years imprisonment to be served cumulatively on the terms of imprisonment he was then serving.
The circumstances of the respondent's offending
Offence against AB
The respondent was 36 years of age when he committed the offence of indecently dealing with AB.
The facts were that AB was a friend of the respondent's daughter, CD.[6] AB was 13 years of age and she and another girl were visiting CD. The respondent and the three girls played a game of wrestling and tickling and subsequently, the respondent had a conversation with AB of a sexual nature. During the course of the conversation, the respondent rubbed his hand up AB's leg, across her inner thigh and stomach and then rubbed his fingers across the top of her pants and underwear.
[6] The facts are taken from the statement of material facts; Exhibit 1, 315.
The court received a pre‑sentence report for the purpose of sentencing. According to the report, CD and the respondent's eldest son were residing with the respondent at the time the offence against AB was committed. The respondent admitted he had been using cannabis since the age of 13 years. The report stated the respondent did not appear to accept his actions were sexually motivated. However, he admitted they were inappropriate.[7]
[7] Report dated 7 April 2004; Exhibit 1, 445.
The court also received a report from Mr David Summerton as an addendum to the pre‑sentence report.[8] Mr Summerton has considerable experience as a forensic psychologist counselling sex offenders.
[8] Specialist report dated 16 April 2004; Exhibit 1, 446.
The report concluded that the respondent was inclined to minimise and deny intent in relation to the offences committed against AB. He sought to characterise his conduct as well-intentioned but naive and claimed it was only with hindsight that he recognised some of his behaviour was inappropriate. He stated his daughter's friends asked him about sexual matters and it was in that context he had engaged in a conversation with AB about sex.
In a section of the report that resonated with much of the evidence received in the application, Mr Summerton observed:
There appear to be a number of issues in [the respondent's] life that have had the effect of him having a particularly high level of emotional investment in his children's lives such that they have seemingly in many ways become the central focus of his life. These issues include his own experience of being parented, broader issues of intimate and sexual engagement within his relationship with his wife and also the protracted period of unemployment, which appeared to have quite a significant impact on his self-esteem. … It is apparent that his children have been a source of positive esteem for him, but his engagement with them has also served the purpose of compensating for or avoiding certain difficult issues. It is also evident in his observation that he is a friend to his children that he may get adult needs through his relationships with them and this is probably the source of his quite loose boundaries which ultimately has some bearing on his offending behaviour.[9]
Offences against CD and EF
[9] Exhibit 1, 453.
The offences for which the respondent was convicted in November 2008 were committed between 2001 and 2007. The ages of CD and EF at the time of the offences ranged between 10 and 15 years. The facts alleged by the State and admitted by the respondent in respect of each offence were as follows.[10]
[10] The facts are taken from the sentencing hearings held in the District Court on 7 and 13 May 2009; Exhibit 1, 580 ‑ 593.
The first offence was committed some time in 2001. The respondent and CD were lying on a bed. The respondent removed his penis from his boxer shorts and placed his penis inside CD's vagina.
The second offence occurred some time in 2005. EF was staying with the respondent and was home from school due to a migraine. The respondent entered EF's bedroom, removed his shorts and got into bed with her. The respondent told EF to get on top of him, which she did. He then penetrated her vagina with his penis. He also kissed EF, including on the lips.
The third offence occurred some time during 2006. The respondent penetrated CD's vagina with his penis on one occasion when she was staying with him.
The fourth offence also occurred some time during 2006. EF was in bed at the respondent's residence. The respondent entered her room and placed his head under the sheets and between her legs. He then licked EF's vagina.
The fifth offence also occurred during 2006. EF and the respondent were seated on a couch. The respondent hugged EF before placing one hand on her vagina, which he began to rub. The rubbing continued for a period of approximately 15 to 20 seconds.
The court received a report from Dr Wojnarowska for the purpose of sentencing.[11] Dr Wojnarowska considered the respondent had antisocial personality characteristics and there was a strong possibility that he would score highly on the psychopathy assessment as evidenced by his lack of empathy, callousness, lack of remorse and self‑reported impulsivity. A formal diagnosis of paedophilia was not made but the possibility of such a diagnosis was not excluded. The lack of a diagnosis reflected the absence of a collateral history. Nevertheless, Dr Wojnarowska considered the respondent's risk of reoffending to be in the medium to high category.
[11] Report dated 7 January 2008; Exhibit 1, 601.
According to Dr Wojnarowska's report, the respondent stated he had been smoking cannabis for 27 years and that he would use 'over an ounce in a space of two to three days'. He also admitted drinking alcohol daily, 'approximately 5 ‑ 6 cans of mixed spirits'.[12]
Offences against GH
[12] Exhibit 1, 604.
The offences against GH were committed on unknown dates between 1 December 2003 and 1 February 2006. The respondent was in a relationship with GH's mother during that time.
The facts of the offences were that GH and her two sisters would often stay at the respondent's house while their mother worked or to play with the respondent's children.[13] GH was aged between 3 years and 10 months and 6 years and 11 months during the period when the two offences occurred. The first offence involved the respondent placing his penis in GH's mouth. The second offence involved the respondent touching GH in her genital area under her clothing with his hands.
[13] The facts are taken from the sentencing hearing held in the District Court on 28 April 2014; Exhibit 1, 644.
According to a pre‑sentence report, the respondent stated his use of cannabis increased significantly after he reached the age of 18 years.[14] He admitted to having used amphetamines and cocaine and dealing in cannabis and other illicit substances.
[14] Pre-sentence report dated 11 April 2014; Exhibit 1, 658.
The report noted the respondent completed the First SOTP while in custody for the offences committed against CD and EF. The completion report suggested the respondent had made some treatment gains but there were many unmet needs for which further programme intervention was recommended. The respondent's participation in the sex offender treatment programmes is further considered below.
Offences against IJ and KL
IJ and KL were sisters of GH. The respondent committed three serious sexual offences against IJ and two offences against KL during the time that he was in a relationship with their mother - that is, between 1 December 2003 and 1 February 2006.
The facts of the offences were that IJ was aged between 10 and 12 years and KL was aged between 8 and 10 years in the period when the offences occurred.[15] The first two offences against IJ involved touching her genital area over her clothes and touching her breasts under her clothes. The third offence involved the respondent placing his penis between IJ's thighs.
[15] The facts are taken from the sentencing hearing held in the District Court on 22 February 2016; Exhibit 1.
The two offences committed against KL involved the respondent rubbing KL's genital area under her underpants and penetrating her vagina with his penis.
The court received a pre‑sentence report for the purpose of sentencing for the offences committed against IJ and KL.[16] The pre‑sentence report was prepared approximately 18 months after the report provided to the court for the purpose of sentencing the respondent in respect of the offences against GH. It was in this report that reference was first made to the respondent's belief that he might suffer from Asperger's Syndrome.
[16] Report dated 30 December 2015; Exhibit 1, 703.
The report also contained further information concerning the respondent's problems with substance abuse. According to the author of the report, the respondent admitted he was a chronic user of cannabis. In particular, the respondent confirmed the history previously given that he used up to two to three ounces a week. He also confirmed he abused alcohol and advised his offending occurred while using drugs and alcohol. He considered his offending coincided with significant episodes of substance abuse.
The statutory framework
Section 17 of the DSO Act states:
(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must -
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.
(2)Subject to subsection (3), in deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
(3)A court cannot make an order under subsection (1)(b) unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order.
(4)The onus of proof as to the matter described in subsection (3) is on the offender.
The reference in s 17 to the 'standard conditions' is to conditions which must be included in a supervision order under s 18(1).[17] That section provides that if the court makes a supervision order against a person the order must require the person to:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the person's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change to the person's name, place of residence, or place of employment at least two days before the change happens; and
(d)be under the supervision of a community corrections officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the order; and
(g)be subject to electronic monitoring under section 19A.
[17] See the definition of the term 'standard condition' in s 3 of the DSO Act.
Section 7 of the DSO Act concerns the concept of a serious danger to the community. The section provides:
(1)Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
(2)The DPP has the onus of satisfying the court as described in subsection (1) and the court must 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; and
(b)any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d)whether or not there is any pattern of offending behaviour on the part of the person; and
(e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program; and
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and
(g)the person's antecedents and criminal record; and
(h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
The relevant principles
I summarised my understanding of a number of authorities on the proper construction of s 7 of the DSO Act in The State of Western Australia v West.[18] My summary was endorsed by Martin CJ in Director of Public Prosecutions (WA) v Yates.[19] Accordingly, I am content to reproduce what I stated in West at [52] on the meaning and effect of s 7 of the DSO Act:
[18] The State of Western Australia v West [2013] WASC 14.
[19] Director of Public Prosecutions (WA) v Yates [2014] WASC 136.
(a)Section 7(1) of the DSO Act provides that before the court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The expression 'serious sexual offence' has the meaning given to that term in s 106A of the Evidence Act 1906 (WA) (s 3 of the DSO Act).
(b)The DPP carries the onus of satisfying the court about that matter and the court must be satisfied by acceptable and cogent evidence and to a high degree of probability. The expression 'high degree of probability' is incapable of further definition. Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof: Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; 38 WAR 307 [28] (Steytler P and Buss JA; and see at [34] for a further elaboration on what the expression means in its application).
(c)In deciding whether to find a person is a serious danger to the community the court must have regard to each of the matters specified in s 7(3) of the DSO Act.
(d)It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence: DPP v GTR [21].
(e)The term 'unacceptable risk' is not defined in the DSO Act. However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made: Italiano v The State of Western Australia [2009] WASCA 116 [4] and [46] (Buss JA).
(f)In a passage that was expressly approved in DPP v GTR, Wheeler JA stated in Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; 35 WAR 297 [63] ‑ [64]:
In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.
(g)The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced: DPP v GTR [97] (Murray AJA).
(h)The court must identify what, if anything, constitutes the risk and factor or factors makes that risk unacceptable and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence: DPP v GTR [34].
In DPP v Williams,[20] Wheeler JA emphasised that the court must declare that a person is a serious danger to the community once it is found that there is an unacceptable risk of the kind to which s 7(1) refers; that is, the word 'may' when used in the section does not confer a discretion or require the court to make some additional finding. In DPP v GTR,[21] Steytler P and Buss JA (as his Honour then was) expressly agreed with the observations of Wheeler JA concerning the meaning of the expression 'unacceptable risk'. Their Honours added:
The word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard, amongst other things, for the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). As John Fogarty points out, albeit in a rather different context (Unacceptable risk - A return to basics (2006) 20 AJFL 249, 252), the advantage of the phrase 'unacceptable risk' is that 'it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case …' [27].
[20] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; 35 WAR 297.
[21] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; 38 WAR 307.
Section 17 of the DSO Act was amended by the Dangerous Sexual Offenders Legislation Amendment Act 2017 (WA) to amend s 17(3) and add s 17(4). The amendments took effect from 29 March 2018.
There is an issue about whether the amendments to s 17 are to be applied retrospectively; that is, whether the amendments operate where an application for div 2 orders was commenced prior to 29 March 2018. The issue was referred to but not decided by McGrath J in The State of Western Australia v Bentley.[22] The issue arises in this case as the State's application for orders under div 1 and div 2 of the DSO Act was commenced on 21 January 2016; orders for a div 2 hearing were made in February 2016.
[22] The State of Western Australia v Bentley [2018] WASC 135. The effect of the amendments to s 29 and s 33(1)(b)(ii) of the DSO Act by the Dangerous Sexual Offenders Legislative Amendment Act were considered by Fiannaca J in Director of Public Prosecutions (WA) v Pindan [No 4] [2017] WASC 271 and Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158.
Unsurprisingly, the parties adopted different positions on this issue. The State submitted the amendments applied retrospectively; the respondent argued to the contrary. I gave the parties an opportunity to provide further written submissions but ultimately concluded that it is not necessary to resolve the issue for the purpose of this application. I make the following brief comments in the hope they may assist in determining any remaining applications for div 2 orders that were commenced prior to 29 March 2018.
The question of whether the amendments apply retrospectively depends on the characterisation of their effect:
(a) A statute divesting vested rights is to be construed as prospective. (b) A statute, merely procedural, is to be construed as retrospective. (c) A statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective.[23]
Accordingly, the answer to the question turns on whether the respondent has a vested right to have the State's application for div 2 orders determined on the basis that he bears no onus in relation to the making of a supervision order and if so, whether the amendments to s 17 effected by the Dangerous Sexual Offenders Legislation Amendment Act divested or adversely impacted on that right.
[23] Maxwell v Murphy (1957) 96 CLR 261.
There are a number of authorities to the effect that an enactment that reverses the burden of proof or casts a burden on a defendant in criminal proceedings is an enactment which, while procedural in character, effects vested rights adversely and is to be construed as prospective: Ah Hing v Hough;[24] Richardson v Shipp;[25] MCP Muswellbrook Pty Ltd v Deutsche Bank (Asia);[26] Wheeler, Grace & Pierucci Pty Ltd v Wright[27] and Damaso.[28]
[24] Ah Hing v Hough [1926] WAR 95.
[25] Richardson v Shipp [1970] Tas SR 105.
[26] MCP Muswellbrook Pty Ltd v Deutsche Bank (Asia) (1988) 12 NSWLR 16.
[27] Wheeler, Grace & Pierucci Pty Ltd v Wright (1989) 16 IPR 189.
[28] Damaso v R [2002] NTCCA 2.
On the other hand, in Re Attorney‑General's Reference No 1 of 2004,[29] the Tasmanian Court of Criminal Appeal declined to follow Richardson v Shipp and Ah Hing v Hough in light of the reasoning of the High Court in Rodway v R.[30] The Court of Appeal held that legislation that cast an onus on an accused person in relation to their state of mind about the sale of controlled plants applied retrospectively despite the accused's intention or belief being an element of the offence created by the statute.
[29] Re Attorney‑General's Reference No 1 of 2004 [2005] TASSC 10.
[30] Rodway v R (1990) 169 CLR 515.
The difficulties in applying the trichotomy referred to by Dixon CJ in Maxwell v Murphy is illustrated by the differences in outcome in Damaso and Attorney‑General's Reference No 1 of 2004 ‑ both were unanimous decisions of Courts of Criminal Appeal and both considered the reasoning of the High Court in Rodway. Further, Damaso, Attorney‑General's Reference No 1 of 2004 and Rodway concerned what, if any, vested rights an accused person has in the conduct of a criminal trial. The analysis of the rights of an offender in an application for orders under div 2 of the DSO Act might be contextually different.
I have concluded that it is not necessary to determine whether the amendments to s 17 apply retrospectively in deciding this application for the following reasons.
Section 17 of the DSO Act requires the court to make either a continuing detention order or a supervision order once it is found that an offender is a serious danger to the community. The paramount consideration in deciding which order should be made is the need to ensure adequate protection of the community. In my view, that stipulation necessarily requires the court to consider the likelihood of an offender complying with the standard conditions (and any other conditions) to be imposed if a supervision order is made. Self‑evidently, the protection of the community would be undermined if there is a real doubt about an offender's compliance with a supervision order.
There may be cases in which the onus is significant in deciding which order must be made under s 17. It is likely that those cases will be rare but, in any event, this is not such a case.
The question whether a supervision order should be made only arises once an offender has been found to be a serious danger to the community. In this instance, the respondent committed a number of serious sexual offences over a long period. There is a distinct pattern to his offending. He has a significant history of substance abuse. His offending is linked to particular entrenched personality traits and substance abuse. He has on‑going treatment needs. In the circumstances, the question whether the respondent would comply with the conditions that might be imposed by a supervision order necessarily arises and must be carefully considered.
In my view, a supervision order could only be made in this application if I was positively satisfied that it is likely that the respondent will comply with the standard conditions of the order (and in this context, the word 'likely' connotes at least more probable than not). I could not find that the community will be adequately protected unless I am satisfied about that matter regardless of which party carries the onus on the issue.
Is the respondent a serious danger to the community?
The matters that must be considered in determining whether the respondent is a serious danger to the community were set out earlier in these reasons.
Psychiatric reports - s 7(3)(a) and (c)
Dr Wynn Owen and Dr Wojnarowska provided reports pursuant to s 37 of the DSO Act.[31]
[31] Reports dated 7 March 2018; Exhibit 1, 754 and 11 March 2018; Exhibit 1, 781 respectively.
The respondent advised Dr Wynn Owen he had not been able to remember any of his offending until relatively recently. Moreover, he was still only able to recall moments during a small number of the offences. The respondent believed this was the result of cannabis induced amnesia.
The respondent gave a mixed account of his recollections of his offending to Dr Wojnarowska. He denied committing any offence in Queensland but Dr Wojnarowska noted an inconsistency in his reasoning for the denial.
The respondent was able to recall his offending against his children in an interview with Dr Wojnarowska. However, he maintained his recollections were recent and consisted of intermittent flashbacks. He claimed he had no memory of the non‑familial offences but maintained the offence committed against AB had no sexual content. He attributed his lack of memory to excessive cannabis use. Dr Wojnarowska described the respondent's account of his offending against his children as detailed but inconsistent.
In Dr Wynn Owen's opinion, the respondent did not suffer from a psychopathic personality disorder. However, the respondent had an antisocial personality disorder and a significant substance abuse problem. That was apparent from the respondent's personal history, which included drug use and dealing from a young age and deceitfulness in his personal relationships. He was impulsive and lacked remorse for his offending and its consequences. Dr Wynn Owen also considered there were inconsistencies in the histories given by the respondent in the past. That called into question the reliability of his self‑reporting.
Dr Wynn Owen utilised two risk assessment instruments: Static‑99 and the Risk for Sexual Violence Protocol (RSVP). The respondent's Static‑99 score indicated an above average risk of sexual recidivism. His RSVP assessment identified a number of risk factors: chronicity of sexual violence; escalation of sexual violence; psychological coercion in sexual violence; extreme minimisation or denial of sexual violence; attitudes that supported or condoned sexual violence; problems with self‑awareness; problems with stress or coping; problems resulting from child abuse; problems with intimate and non‑intimate relationships; and problems with employment, planning, treatment and supervision.
Dr Wynn Owen also considered that the risk factor 'sexual deviance' was present. The respondent's sexual offending history was indicative of a paedophilic sexually deviant interest over an extended period of time. While the respondent denied any sexual interest, fantasy or arousal to children, he had offended against female children aged from 5 to 15 over a period of 20 years.
As to some of the other risk factors, Dr Wynn Owen noted the respondent reported being aware that what he was doing with his children was wrong but he was unable to address his behaviour over a considerable period. That suggested the respondent was unable to delay gratification and his offending was impulsive and opportunistic.
Dr Wynn Owen concluded:
[The respondent] is an intrafamilial paedophile offender whose preference is for young girls. His offending pattern indicates that he would form a relationship with a child's parent or guardian prior to grooming behaviour to confirm trust and authority. Unless his pattern of offending changes this is likely to take months at minimum.[32]
[32] Exhibit 1, 775.
Dr Wynn Owen considered the respondent presented a high risk of serious sexual reoffending if he were to be released to the community unsupervised. His Static‑99R score was in the above average risk group and the Second SOTP completion report outlined a range of outstanding treatment needs. There had been no opportunity to demonstrate drug abstinence in the community and there was a significant risk related to cannabis use as the respondent adopted cannabis use as an excuse for his offending. However, there were opportunities for risk mitigation through management and supervision to reduce access to potential child victims through monitoring the respondent's relationships. The respondent's pattern of offending involved establishing a significant relationship with a potential victim's mother or guardian. That required time and was susceptible to monitoring.
Dr Wojnarowska stated that the respondent expressed remorse and shame for his offending. He did not blame his victims for what occurred but he deflected responsibility by attributing his offending to 'environmental stresses' and 'permanent cannabis intoxication'.[33] Dr Wojnarowska noted the respondent's 'non-blaming attitude' contrasted with the views he expressed in the First SOTP. She thought some of the respondent's statements about his offending 'did not appear to be original and sounded as though he had quoted them directly from the [second sex offender treatment programme]'. However, she considered that the respondent 'had meant what he had said'.[34]
[33] Exhibit 1, 786.
[34] Exhibit 1, 786.
Dr Wojnarowska also considered:
[The respondent's] history and current presentation is consistent with a diagnosis of paedophilia, familial, non‑exclusive type, attracted to females. The latter refers to the fact that [the respondent] is also sexually attracted to adult females. The term 'familial' refers to the fact that his victims were all known to [the respondent], with majority being his family members. …
The origin of his deviant sexual arousal is uncertain; most likely developed in the context of yearning for love and care during his formative years and this was provided to him in a sexual context by older females. [The respondent's] personality inadequacies and low selfesteem have also contributed to the development and maintenance of his sexual interest in children.[35]
[35] Exhibit 1, 796.
In Dr Wojnarowska's opinion, the respondent had not made significant treatment gains from his engagement with sex offending programmes. This was related to his personality style, which restricted his ability for self‑reflection and self‑development. His offending was a mixture of opportunistic and predatory conduct and his risk of re‑offending was still high. That conclusion was based on the respondent's personal history, pattern of offending and the results of the risk assessment undertaken by Dr Wojnarowska. The respondent had a deviant sexual interest in children, was self‑absorbed and showed little consideration for the welfare of others. He was 'emotionally immature, craving love and attention that he has not been able to obtain from age appropriate relationships due to his personality inadequacies'.[36] Further, the respondent's use of cannabis was an important but not causative factor in his sexual offending.
[36] Exhibit 1, 800 - 801.
However, Dr Wojnarowska also considered that there were protective factors that negated his risk of re‑offending. Those factors reflected the nature of his offending and the fact that it occurred in the context of significant relationships developed over time.
Dr Wynn Owen and Dr Wojnarowska gave evidence at the hearing of the State's application for div 2 orders. Their conclusions regarding the risk of the respondent committing a serious sexual offence in the future were not expressly challenged. Rather, cross‑examination was primarily directed to the question of whether a continuing detention order or a supervision order should be made. The evidence given by Dr Wynn Owen and Dr Wojnarowska on that issue is further considered below.
Psychological report - s 7(3)(b) and (c)
The State tendered a report by Ms Wilson‑Brown, a senior counselling psychologist with the forensic psychological service of the Department of Justice.[37]
[37] Report dated 27 February 2018; Exhibit 1, 803.
Ms Wilson‑Brown administered various psychological tests to assess the respondent's personality (Millon Clinical Multiaxial Inventory IV); the possible presence of psychopathy (Psychopathy Checklist Revised); and the risk of sexual offending (STABLE‑2007). However, it should be noted that the STABLE‑2007 instrument was not utilised by Ms Wilson‑Brown for the purpose of forming an opinion about the respondent's risk of sexually re‑offending but rather, to identify outstanding treatment needs that could warrant either further intervention or the development of risk management strategies.
The psychometric testing performed by Ms Wilson‑Brown indicated the respondent did not meet the diagnostic criteria for psychopathy but antisocial and psychopathic personality traits were observed. She considered the respondent's psychological profile was consistent with his presentation in interviews, self‑reports of his familial and social background and the results of psychometric testing. There was a pattern of impoverished emotional experiences and attachments during childhood, combined with an egocentric personality style, antisocial attitudes and emotionally avoidant interpersonal interactions. That resulted in the respondent having low self‑worth, depressed mood, poor emotional management skills and a willingness to engage in dysfunctional behaviour to avoid addressing his issues.
Community supervision assessment report - s 7(3)(b)
The State tendered a community supervision assessment report prepared by Ms Rathmann, senior community corrections officer with the community offender monitoring unit of the Department of Corrective Services.[38] The report was directed to plans and management strategies that would be available if the respondent was released to the community.
[38] Report dated 2 March 2018; Exhibit 1, 818.
There was no suitable accommodation available for the respondent at the time the report was prepared. However, Ms Rathmann subsequently advised accommodation was available for the respondent if he was released to the community. The accommodation has been assessed by the sex offender management squad of the Western Australian Police.
Ms Rathmann indicated counselling, supervision and management facilities reflecting the recommendations made by Dr Wynn Owen and Dr Wojnarowska could be provided to the respondent in the community.
Parole assessment reports - s 7(3)(b) and (c)
Two parole assessment reports were prepared in relation to the respondent. The first was dated 19 June 2013;[39] the second was dated 4 June 2014.[40] Neither report supported the respondent's release to parole.
[39] Exhibit 1, 727.
[40] Exhibit 1, 735.
The first parole assessment report made a number of adverse observations concerning the respondent's participation in the First SOTP in 2011. Concerns were also expressed about the risk of the respondent re‑offending on release to the community. Those concerns were based on the respondent's Static‑99 assessment and his performance in the First SOTP. It was noted the respondent had failed to acknowledge that he experienced intimacy issues in prior relationships and made comments which indicated a lack of insight into moral and legal sexual norms.
The second parole assessment report emphasised the respondent failed to appreciate he had outstanding treatment needs and continued to deny the presence of some factors that apparently contributed to his offending.
Past psychiatric, pre-sentence and programme completion reports - s 7(3)(b) and (c)
Reference has already been made to the various psychiatric and pre‑sentence reports provided to courts for the purpose of sentencing the respondent. The completion reports for counselling and treatment programmes in which the respondent has participated are discussed below. The information contained in those various reports has been considered in determining whether there is an unacceptable risk that the respondent would commit a serious sexual offence if he was not made subject to a continuing detention order or a supervision order.
Pattern of offending - s 7(3)(d)
There is a clear pattern to the respondent's offending behaviour. Apart from AB, his victims were either his children or children of a woman with whom he was in a significant relationship - and AB was someone who was known to the respondent and a friend of his daughter. The respondent's offending occurred in his home, was against young girls with whom he had a relationship and involved the exploitation of the relationship to gratify sexual and emotional needs.
There is no evidence that the respondent is attracted to strangers; that is, that he is at risk of committing a serious sexual offence against a person with whom he has no prior relationship. His offending apparently reflects a need for emotional as well as sexual intimacy. That was so even in relation to the offence against AB. The circumstances of that offence apparently involved the respondent seeking to be close to AB emotionally and physically.
The pattern of the respondent's offending indicates his risk of serious sexual offending is related to the opportunity for him to form significant relationships with women who have sole custody of young girls or who are willing to partner with him to have and raise children. Dr Wynn Owen defined the risk scenarios for the respondent as 'sexual contact with a female child aged 5 to 15 with whom he is in a relationship of trust and/or authority, a parental type role … [h]is offending pattern indicates that he would form a relationship with the child's parent or guardian prior to grooming behaviour to confirm trust and authority'.[41] Dr Wojnarowska considered that any repeat offending by the respondent would likely involve 'known/familiar pre‑pubescent female children'. He would have known the victim for some period of time and have established a relationship of trust with her parent(s).[42]
Programmes - s 7(3)(e) and (f)
[41] Exhibit 1, 774 - 775.
[42] Exhibit 1, 800.
The respondent attended psychological counselling during the term of the community based order made for the offence committed against AB. The pre‑sentence report provided for sentencing the respondent for the offences committed on CD and EF stated he had made gains in understanding the triggers for his sexual offending as a result of counselling. However, Dr Wojnarowska noted in her report dated 7 January 2008 that the respondent described the counselling as 'useless'.[43]
[43] Exhibit 1, 603.
The respondent also undertook the Pathways Programme in 2010. That programme provides treatment to offenders with substance abuse problems. The programme report was positive but it was noted the respondent had been a heavy daily user of cannabis throughout his adult life. The respondent connected his offending to his abuse of cannabis - he was said to have 'acknowledged' his use of cannabis had numbed his feelings and 'allowed' him to commit his crime.[44]
[44] Program Completion Report dated 21 December 2010; Exhibit 1, 714.
The completion report for the First SOTP stated the respondent had made gains in understanding the emotional factors that contributed to his offending but required further assistance in identifying the sexual component. Further, he continued to hold his victims partly responsible for his offending and accordingly, he was deemed to still have outstanding treatment needs. There were also concerns expressed about the effectiveness of his release plans.[45]
[45] Program Completion Report dated 29 March 2012; Exhibit 1, 718.
The completion report for the Second SOTP noted that a Static‑99R assessment placed him in the medium to high risk category and the STABLE‑2007 identified his treatment needs as being relationship instability, emotional identification with children, lack of concern for others, negative emotionality, impulsivity, poor problem‑solving skills, sex drive/preoccupation and sexual deviancy. The assessment tests were administered prior to the respondent being admitted into the Second SOTP. The completion report stated the respondent was deemed to have made gains in that he had an improved understanding of what he valued in life, recognised the impact of his offending and had goals and plans in place that would help him to live in the community without reoffending.[46]
[46] Program Completion Report dated 7 November 2011; Exhibit 1, 744.
In their reports, Dr Wynn Owen, Dr Wojnarowska and Ms Wilson‑Brown summarised those aspects of the programme completion reports they regarded as significant. There was little difference in the conclusions they each reached from their review of the respondent's participation in the treatment programmes. It was accepted the respondent had made some gains, particularly as a result of his participation in the Second SOTP. However, the respondent had outstanding treatment needs as described in the completion report for the programme.
For example, Dr Wynn Owen stated the respondent required one‑to‑one counselling to 'address areas of unmet treatment need including: sexual deviance and attitudes that support sexual offending; self‑awareness and self‑management …; interpersonal relationship and intimacy issues; fully accepting responsibility for offending'.[47]
[47] Report dated 7 March 2018; Exhibit 1, 779.
Dr Wojnarowska considered the respondent required further intensive individual treatment to address issues similar to those identified by Dr Wynn Owen. She also considered the respondent would benefit from particular medications and from attending the community based sexual offender maintenance programme. However, she did not think the respondent would benefit from further treatment in prison as that would not challenge his old patterns of behaviour and would not address the relevant risk factors. This was despite the respondent having made only limited progress in his treatment needs.[48]
[48] Report dated 11 March 2018; Exhibit 1, 801.
Ms Wilson‑Brown also considered the respondent would benefit from individual counselling and treatment. In her opinion, the respondent's antisocial personality characteristics were entrenched and needed to be continually monitored. However, she noted the respondent had been able to develop a therapeutic alliance with counsellors and had actively worked on treatment goals in the past.[49]
Antecedents and criminal record - s 7(3)(g)
[49] Report dated 27 February 2018; Exhibit 1, 816.
In addition to the offences to which reference has already been made, the respondent has convictions in the Magistrates Court for possessing cannabis and smoking utensils (the convictions were recorded on 17 April 2008, the offence date in each instance being 11 May 2006). He also has convictions for traffic offences in Queensland and the Northern Territory.
More relevantly, a warrant for his arrest was issued in Queensland in March 2009. The warrant was issued in respect of an offence allegedly committed against s 222(1)(a) and s 222(1)(b) of the Criminal Code (Qld). Those sections create an offence of having carnal knowledge of or with a person's offspring or lineal descendant. The respondent is alleged to have committed the offence on a date unknown between 28 January 1996 and 13 December 1997.
The respondent was denied parole by the Prisoner's Review Board on 18 June 2014 and again, on 21 December 2017. The Board has further determined that the respondent should be subject to a post‑sentence supervision order made under pt 5A of the Sentence Administration Act 2003 (WA) should he be released to the community on expiry of his terms of imprisonment.
Risk and protection of the community - s 7(3)(h) and (i)
The matters referred to in s 7(3)(h) and (i) of the DSO Act reiterate that the court is required by s 7(1) to make a determination about the risk of an offender committing a serious sexual offence if not made subject to a continuing detention order or a supervision order and the need to ensure that the community is adequately protected from unacceptable risks. The evidence presented in the State's application for div 2 orders relevant to determining whether the respondent is a serious danger to the community has been summarised above.
Findings
For the following reasons, I find that the respondent is a serious danger to the community. I am satisfied about that matter to a high degree of probability on evidence that I consider to be acceptable and cogent.
The respondent did not challenge the admissibility, accuracy or cogency of the evidence presented by the State in the application for div 2 orders. The psychiatric and psychological opinions that were provided to the court were from experienced forensic experts. There was no issue taken with the accuracy of the information on which they formed their opinions. Their conclusions were not contested. The respondent's counsel did not challenge their opinions in cross‑examination but merely sought to elicit further information primarily relevant to the question of whether a supervision order could be made. His approach implicitly assumed it was likely the respondent would be found to be a serious danger to the community.
Dr Wynn Owen and Dr Wojnarowska assessed the risk of the respondent committing a serious sexual offence if not made subject to a continuing detention order or a supervision order as high. I accept their assessments and the opinions on which their assessments were based. Dr Wynn Owen and Dr Wojnarowska have considerable experience in assessing the risk of recidivism by offenders with a history of serious sexual offending.
There are other intermediate findings that I make which support the conclusion that the respondent is a serious danger to the community. I find that:
(a)There is a pattern to the respondent's offending that is described in the section of the reasons above dealing with that matter. The pattern of offending has persisted over a long period and across two significant family relationships.
(b)The respondent has a paedophilic sexually deviant interest in young girls with whom he is in a familial or analogous relationship. His interest in young girls with whom he has a significant relationship is emotional as well as sexual. His sexual offending forms part of a desire to establish an intimate relationship with his victims.
(c)The respondent's sexual offending reflects psychiatric and psychological traits. Those traits are deeply entrenched and most likely have their origins in childhood experiences and traumas which have left the respondent emotionally immature and impoverished. The fact that the relevant traits are entrenched is evidenced by the repetition of his offending and the period over which it occurred.
(d)The factors that contribute to the risk of the respondent committing a serious sexual offence are as identified by Dr Wynn Owen and Dr Wojnarowska in their respective RSVP assessments of that risk. As already stated, I accept their analysis of the respondent's risk of reoffending and their conclusions about that risk.
(d)The respondent has made some gains from counselling and participation in sexual offender treatment programmes. However, those gains are limited and he has outstanding treatment needs. Those needs are identified in the completion report of the Second SOTP and in the reports of Dr Wynn Owen, Dr Wojnarowska and Ms Wilson‑Brown.
(e)The respondent's performance in counselling and sex offender treatment programmes reflects, at least in part, the entrenched nature of the psychiatric and psychological traits that are relevant to his offending.
(f)The respondent's offending was not caused by his abuse of substances such as cannabis and alcohol. However, his abuse of substances facilitated his offending by providing a self‑rationalising excuse and most likely, by having a disinhibiting effect on his behaviour.
Continuing detention order or supervision order
As previously noted, the court must make a continuing detention order or a supervision order once it is found that the respondent is a serious danger to the community. The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a pre‑disposition to making a continuing detention order. As Hall J observed in Director of Public Prosecutions (WA) v Decke '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order'.[50] Moreover, the court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.[51]
[50] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
[51] The State of Western Australia v Latimer [2006] WASC 235 and Director of Public Prosecutions (WA) v Decke [15].
I have found that there is a distinct pattern to the respondent's offending. I have further found that the pattern reflects aspects of the respondent's personality. In particular, his offending has been against either his own daughters or young girls with whom he has a significant relationship (apart from AB). There is no evidence that the respondent has a paedophilic interest in children generally; he has not committed an offence against a stranger or engaged in grooming or other predatory behaviour directed to strangers. Further, his sexual attraction to young girls is 'non‑exclusive'; that is, he is also sexually attracted to adult females and indeed, it appears that he maintained a number of sexual relationships with adult females outside his marriage.
The pattern of the respondent's offending and his sexual behaviour generally reflects the psychiatric and psychological traits underpinning the finding that he is a serious danger to the community. Those traits suggest the risk scenarios for the respondent committing a serious sexual offence can be identified with some precision. The opinions expressed by Dr Wynn Owen and Dr Wojnarowska about those risk scenarios were considered earlier. I accept those opinions; they are consistent with the evidence presented in the application and accord with the findings made about the risk of the respondent committing a serious sexual offence.
That risk is associated with the opportunity for the respondent to form significant relationships with women who either have sole custody of young girls or who would be willing to partner with him to have children (and there is no evidence that the respondent has a sexual interest in boys). The opportunity to form such relationships diminishes with age and the respondent is now aged 51 years.
More significantly, the possibility of the respondent seeking to form such a relationship could, in my view, be readily monitored by appropriate conditions in a supervision order. The risk scenario for the respondent involves the formation of a particular relationship over a period of time. It should not be difficult to ascertain whether the respondent is attempting to form such a relationship following his release to the community.
Dr Wynn Owen and Dr Wojnarowska considered the risk of the respondent committing a serious sexual offence can be adequately managed in the community having regard to the pattern of the respondent's offending and the psychiatric and psychological factors contributing to the risk of him reoffending. At the hearing of the application for div 2 orders, Dr Wynn Owen stated the respondent has a range of outstanding treatment needs and 'without further intervention' his risk of reoffending would be high. He was then asked by counsel for the State whether that risk could be managed in the community. Dr Wynn Owen replied:
Because of the nature of his offending, I believe that is possible. Yes. Because the contact with children of the age that he is likely to offend against, were he to offend in the future, can be managed through ensuring only supervised contact, through ensuring that any development of relationships is associated with disclosure such that there's not access through that means to children, I believe that he could both receive therapeutic intervention and have that risk managed in the community.
…
It is unlikely that somebody with the offending pattern of [the respondent] would become an opportunistic or impulsive offender. That does not appear to have happened at any time during his recorded convictions.[52]
[52] 26 June 2018, ts 33.
Dr Wynn Owen was asked in cross‑examination whether, in his opinion, it would be likely that management of the respondent in the community would be 'successful'. Dr Wynn Owen stated:
If it is effectively maintained and sustained, yes, because the issue is around contact with young children and it takes time then to develop that relationship of trust and authority. And if that can be prevented by some fairly simple means, including appropriate supervised only access, if access is indeed required and that the commencement of any relationships that may also provide access, there is some disclosure and the CCO is aware of that, I believe it can be managed, yes.[53]
[53] 26 June 2018, ts 39.
Dr Wojnarowska identified in her report a number of factors relevant to assessing the management of the respondent in the community. She noted the respondent had a 'propensity to manipulate those who came in contact with him and to distort truth if necessary to pursue his goals'. It was relevant that the respondent offended while subject to a community based order and receiving counselling. Further, Dr Wojnarowska considered:
The imminence of [the respondent's] potential reoffending would depend on his mental state (state of intoxication v sober), his engagement with treatment and his life stability. The warning signs that might signal that the risk is increasing include a relapse of cannabis or any other illicit substance use or missed supervision sessions. There is also a possibility that there would be no warning signs, and he would still be attending his psychological counselling and other appointments. Given that [the respondent] offends against known victims and does so opportunistically, offending against multiple victims is unlikely unless he manages to groom several families at one time.[54]
[54] Exhibit 1, 800.
Against those matters, Dr Wojnarowska noted the respondent expressed a willingness to continue working with counsellors and to remain substance free. He had not returned positive tests for any substance while in custody and it was unlikely he would offend against a stranger. His pattern of offending indicated that protective management strategies could be devised and implemented.
In her oral evidence, Dr Wojnarowska was asked by counsel for the State whether, in her opinion, the risk of the respondent committing a serious sexual offence could be managed in the community. She stated:
Yes. I do believe that despite high levels - a high level of risk, his type of offending, really, a non‑predatory type in the sense that he would not stalk unfamiliar children. He would not abduct a child and he's not that type that would offend against a child, even if he met them on the street. I think he does require that affective component to be present in his sort of world. He did imagine that those children enjoyed the conduct with him and were affectionate towards him. He did say that otherwise they wouldn't be coming back. So it's not only about sex; it is about the connection for [the respondent]. … So in that sense, I think, that supervising his contact in the community should be sufficient in terms of ensuring the safety of the children.[55]
[55] 26 June 2018, ts 55 - 56.
It is, of course, for the court to decide whether a continuing detention order or a supervision order should be made once it is found that an offender is a serious danger to the community. That decision is to be made on all of the evidence accepted by the court. Nevertheless, I accept and give significant weight to the opinions expressed by Dr Wynn Owen and Dr Wojnarowska on the risk posed by the respondent being managed in the community. They are experienced forensic psychiatrists with expertise in assessing the risk of sexual offenders reoffending. Their opinions were consistent with the evidence presented in the application and the findings that have been made about the risk of the respondent committing a serious sexual offence and the factors that contribute to that risk.
The respondent will be confronted by difficulties upon release to the community. Most notably, he has a significant history of substance abuse; in particular, he had a dependence on cannabis and alcohol. His abuse of those substances was connected to his offending. However, the respondent has been in custody since August 2007 and was apparently drug free throughout that time (the respondent returned numerous negative results on urinanalysis testing while in prison). That represents a lengthy period for the respondent to have escaped from his dependence on cannabis and alcohol.
There will be other difficulties for the respondent in the community. He has no employment and relatively few social supports. However, those are difficulties frequently encountered by offenders on their release to the community and support and supervision will be provided by Community Corrections.
The respondent's outstanding treatment needs have been clearly identified in the completion report for the Second SOTP, the parole assessment reports and the reports of Dr Wynn Owen, Dr Wojnarowska and Ms Wilson‑Brown. The reports of Ms Wilson‑Brown and Ms Rathmann indicate those treatment needs can be accommodated in the community.
The recommendations for future treatment focus on individual counselling. However, I note Dr Wojnarowska also proposed the respondent undertake a trial of a particular medication which she considers could be beneficial in alleviating symptoms of anxiety and depression and in treating his paraphilia. Dr Wojnarowska also considered the respondent would benefit from attending the community based sexual offender maintenance programme.
Finally, I am positively satisfied that it is likely (more probable than not) that the respondent will comply with the standard conditions to be imposed by the supervision order that has been proposed by the State and which I intend to adopt. The supervision order will include conditions preventing unsupervised contact with children and requiring disclosure of associations and relationships. The order will also include a number of conditions that are not standard conditions but which are intended to prevent the respondent from engaging in risky behaviour. Those conditions will reinforce the respondent's own efforts to comply with the standard conditions. Moreover, I am satisfied that it is likely that the respondent will comply with the non-standard conditions.
I accept that the respondent is motivated to remain offence free and in the community. He willingly participated in the Second SOTP and there was nothing in the completion report for that programme that suggested he was not genuinely motivated to engage in treatment to moderate the factors that contribute to the risk of him committing a serious sexual offence. He has been free of drugs for a long time. There is nothing in the respondent's prison records (which formed part of exhibit 1) to suggest he would not comply with the supervision and reporting requirements to be imposed by a supervision order.
Dr Wojnarowska cautioned that the respondent might attempt to manipulate those responsible for his management. However, the CCO and police officers who will be responsible for his supervision and management are experienced in dealing with offenders who have been released to the community under a supervision order. Further, the large number of conditions to be imposed will create a number of reference points for the respondent's ongoing supervision and management. It is difficult to see how the respondent could successfully engage in a course of manipulative conduct across the spectrum of conditions to be imposed without detection.
In my view, the conditions to be imposed in the supervision order will adequately manage the risk of the respondent committing a serious sexual offence (and thereby make it likely that he will comply with the standard condition that he not commit a sexual offence during the period of the order). On the evidence presented in the application, I find that a supervision order incorporating the conditions proposed by the State will ensure that the community is adequately protected from the risk of the respondent committing a serious sexual offence.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AC
RESEARCH ASSOCIATE/ORDERLY TO KENNETH MARTIN & CORBOY JJ20 AUGUST 2018
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