The State of Western Australia v Atkinson

[2020] WASC 117

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ATKINSON [2020] WASC 117

CORAM:   MCGRATH J

HEARD:   8 APRIL 2020

DELIVERED          :   8 APRIL 2020

FILE NO/S:   DSO 4 of 2020

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

IAN EVERITT ATKINSON

Respondent

Catchwords:

Dangerous Sexual Offenders Act - Preliminary hearing - Whether reasonable grounds for believing a Division 2 order might be made

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 7, s 8, s 11, s 14, s 17, s 37

Result:

Application granted
Orders sought by applicant made

Category:    B

Representation:

Counsel:

Applicant	:	Ms H K Watson
Respondent	:	Mr T Hager

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid WA

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

Director of Public Prosecutions (WA) v Dodd [2015] WASC 249

Director of Public Prosecutions (WA) v Free [2010] WASC 255

MCGRATH J:

1. The State of Western Australia applies, pursuant to s 8(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act), for orders under s 14 and s 17(1) of the Act in respect of Mr Atkinson.[1]

   [1] Application by the State of Western Australia dated 13 March 2020.

2. In accordance with s 11 of the Act, the purpose of this preliminary hearing is to determine whether the court is satisfied that there are reasonable grounds for believing that the court might find that Mr Atkinson is a serious danger to the community under s 7(1) of the Act. That is, to determine whether the court is satisfied that there are reasonable grounds for believing that a court might find that there is an unacceptable risk that if Mr Atkinson were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.

3. Mr Atkinson does not oppose the application.  It is necessary that I determine whether that concession is properly made.

4. For the following reasons, I have determined that the orders sought should be made.  In these reasons for decision, I will consider the following:

   (a)The relevant legal principles.

   (b)The factual background and evidentiary material.

   (c)An assessment of the application.

Relevant legal principles

1. Section 8 of the Act provides that the Director of Public Prosecutions may file an application for orders under s 14, and for a div 2 order, if the respondent is under a custodial sentence for a serious sexual offence, and there is a possibility that the respondent might be released from custody within the period of one year after the application is made.

2. Section 11 of the Act provides that the application must be the subject of a preliminary hearing before the court.

3. The main purpose of a preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community.[2]  That is, to determine whether the court is satisfied that there are reasonable grounds for believing that the court might find that there is an unacceptable risk that, if the offender is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.[3]

   [2] Dangerous Sexual Offenders Act 2006 (WA), s 11(3).

   [3] Dangerous Sexual Offenders Act 2006 (WA), s 7(1).

4. Section 14(1) of the Act provides that at the preliminary hearing, if the court is satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community, the proper officer of the court must, subject to s 7(2A), fix a day for the hearing of the application for a div 2 order.

5. Further, the court must order that the respondent undergo examinations by two qualified experts named by the court, at least one of whom is to be a psychiatrist, for the purposes of preparing reports in accordance with s 37 to be used on the hearing of the application for the div 2 order.[4]

   [4] Dangerous Sexual Offenders Act 2006 (WA), s 14(2)(a).

6. In Director of Public Prosecutions (WA) v Free[5] McKechnie J made the following observations in relation to the requirements of s 14(1) which I apply in respect of this application:

   A judge does not have to be satisfied that an order will be made.  It is sufficient if there are reasonable grounds for believing that an order might be made.

   It is not helpful to speak of the test at a preliminary hearing as a low threshold or any other description.  The words mean what they say, and the belief of the judge must be grounded in fact and must acknowledge that a judge is exercising a judicial, not administrative power, and so is permitted to bring scrutiny to the possibility of a detention or supervision order being made.  At a preliminary hearing a judge must have a belief in the possibility the later court will be satisfied to a high degree of probability that a person is a serious danger to the community.  It is a threshold that must be crossed before a judge can appoint psychiatrists to undertake an evaluation.

   The phrase 'Reasonable grounds of belief' has been the subject of judicial interpretation.  In George v Rockett (1990) 170 CLR 104:

   'When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.'

   Further on:

   'The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof.  Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.'

   The principle to be extracted is that there must be sufficient facts or circumstances to ground in reason an inclination towards the proposition under review.

   [5] Director of Public Prosecutions (WA) v Free [2010] WASC 255 [10] ‑ [13].

7. Similar observations in relation to the requirements of s 14(1) were made by Simmonds J in Director of Public Prosecutions (WA) v Dodd.[6]

   [6] Director of Public Prosecutions (WA) v Dodd [2015] WASC 249 [34] ‑ [42].

8. I will now consider the material before the court which bears upon my determination of the question posed by s 14(1) of the Act.

Factual background and evidence

1. The State's application is supported by an affidavit of Ms Watson which produces relevant documentary material and a written outline of submissions.[7]  Mr Atkinson did not seek to rely on any documentary material nor any written outline of submissions.

Criminal history

[7]Affidavit of Heidi Karen Watson affirmed 16 March 2020; Applicant's Outline of Submissions for Preliminary Hearing dated 2 April 2020.

1. Mr Atkinson is a 62 year old male having been born on 5 July 1957. 

2. Mr Atkinson has a criminal history that relevantly comprises sexual offending.[8]  Mr Atkinson has been convicted of sexual offending in 2000 and 2015.  Mr Atkinson does not have a criminal record in any other jurisdiction.[9]  I will provide an outline of Mr Atkinson's offending.

1999 ‑ 2000 offending: 7 counts indecently dealt with a child under 13 years; 2 counts indecently recorded a child under 13 years; and 2 counts sexually penetrated a child under 13 years

[8] Western Australian Criminal Record, Annexure B to the Affidavit of Ms Watson.

[9] Affidavit of Ms Watson, [7].

1. On 12 May 2000, Mr Atkinson pleaded guilty to 11 sexual offences which were committed against two girls aged between 7 and 8 years of age.[10] The offences comprised 7 counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code; 2 counts of indecently recording a child under the age of 13 years, contrary to s 320(6) of the Criminal Code; and 2 counts of sexual penetration of a child under the age of 13 years, contrary to s 320(2) of the Criminal Code.[11]  The offending occurred on unknown dates between 31 December 1998 and 19 February 2000.

   [10] Transcript of proceedings in the District Court of Western Australia on 12 May 2000, Annexure H to the Affidavit of Ms Watson.

   [11] District Court Indictment 814 of 2000 dated 12 May 2020, Annexure E to the Affidavit of Ms Watson.

2. Mr Atkinson was 41 to 42 years of age at the time of the offending.  Counts 1 ‑ 3 involved offending against the first female victim who was 7 to 8 years of age.[12]  Mr Atkinson touched her on the bare vagina on three separate occasions while she was in bed.  Counts 4 ‑ 11 relate to the second female victim who was 8 years of age.  The 8 counts relating to the second victim were representative of conduct that occurred over approximately one year, and included touching the child's vagina, procuring her to urinate in front of him and recording her doing so, procuring her to touch his erect penis, and sexually penetrating her vagina with his finger and a cotton bud.  The offending ceased when the second victim told her mother.

   [12] Transcript of proceedings in the District Court of Western Australia on 12 May 2000, Annexure H to the Affidavit of Ms Watson.

3. On 20 June 2000, his Honour Macknay DCJ imposed a term of imprisonment of 6 years with eligibility for parole.[13]  On 11 May 2002, Mr Atkinson was released on parole.[14]

   [13] Transcript of sentencing hearing in the District Court of Western Australia on 20 June 2000, Annexure I to the Affidavit of Ms Watson.

   [14] Department of Corrective Services History of Board Secretariat Decision Slips, Annexure C to the Affidavit of Ms Watson.

4. All 11 counts on the indictment are 'serious sexual offences' as defined in s 3(1) of the Act.

2007 ‑ 2015 offending: 10 counts indecently recorded a child under 13 years; 4 counts possess child exploitation material; 1 count produce child exploitation material; 1 charge consort with a child sex offender; 1 charge breach reporting obligations; and 2 charges possess indecent or obscene articles

1. On 10 November 2015, Mr Atkinson pleaded guilty to 15 counts on an indictment that comprised 10 counts of indecently recording a child under the age of 13 years, contrary to s 320(6) of the Criminal Code; 4 counts of possessing child exploitation material, contrary to s 220 of the Criminal Code; and 1 count of producing child exploitation material contrary to s 218 of the Criminal Code.[15] 

   [15] District Court Indictment 731 of 2015 dated 18 September 2015, Annexure J to the Affidavit of Ms Watson.

2. In addition, Mr Atkinson was convicted of 4 charges on a s 32 notice. The offences comprised 1 charge of breaching reporting obligations contrary to s 6 of the Community Protection (Offender Reporting) Act (PE 17466/2015), 1 charge of consorting with a child sex offender contrary to s 557K of the Criminal Code (PE 12218/2015) and 2 charges of possessing an indecent or obscene article (PE 31452/2015 and PE 17467/2015).[16]

   [16] Transcript of sentencing hearing in the District Court of Western Australia on 10 November 2015, Annexure L to the Affidavit of Ms Watson.

3. The facts with respect to the offending were accepted by Mr Atkinson at the sentencing hearing.[17]  Counts 1 ‑ 11 on the indictment involved offending against two children, a male and a female.  Mr Atkinson began offending against the two victims when the female child was 5 years of age and the male child was 9 years of age.  Mr Atkinson was 53 years of age at the time.  Mr Atkinson began offending after gaining the trust of the children's family and taking on a grandfather role with the two children.  

   [17] Statement of Material Facts, Annexure K to the Affidavit of Ms Watson; Transcript of sentencing hearing in the District Court of Western Australia on 10 November 2015, Annexure L to the Affidavit of Ms Watson.

4. Count 1 involved Mr Atkinson producing child exploitation material contrary to s 220 of the Criminal Code by digitally enhancing an innocent picture of the two children to depict them urinating.

5. Counts 2 ‑ 11 on the indictment involved offences of indecently recording a child under the age of 13 years contrary to s 320(6) of the Criminal Code.  Count 2 involved a photograph of a child aged 6 to 7 years lying in a bath naked with her genitalia visible.

6. Counts 3 ‑ 4 involved two photographs of the female child naked with her genitalia showing or covered by her hand.  Count 5 is in respect of a video recording of the female child urinating, taken from a very close range showing explicitly her vagina.  In relation to count 6, the female child is filmed completely naked hanging upside down from the handlebar of a treadmill at Mr Atkinson's request.  Counts 7 ‑ 8 involved Mr Atkinson taking a photograph of both children standing together naked and facing the camera.  Both children's genitalia are clearly visible.  

7. Count 9 involved a photograph of the male child completely naked and facing the camera with his genitalia showing.  In count 10, the offending involved the female child being recorded on the toilet with her legs apart and her vagina clearly exposed whilst pointing to the contents of the toilet.  Count 11 is in respect of an image of the female child lying on her back in the bath with a sponge covering her genitalia.

8. The offending against the two children was investigated when the child exploitation material the subject of counts 12 ‑ 15 was found by police during a search of Mr Atkinson's home.  

9. Counts 12 ‑ 15 on the indictment involved offences of possessing child exploitation material contrary to s 220 of the Criminal Code.  The child exploitation material comprised approximately 46,500 images and videos.  The images were assessed as being in categories 1 ‑ 6 based on the nature and content of material.[18]  The children in categories 1 ‑ 5 were nearly all prepubescent children with some being babies.  A number of the images were described by the sentencing judge as being 'particularly disgusting and depraved' including very young children engaging in sexual acts.[19]  The majority of the images were in category 1, being depictions of children with no sexual activity but who may be naked, showing underwear, in a sexually suggestive pose or urinating.[20]

   [18] Transcript of sentencing hearing in the District Court of Western Australia on 10 November 2015, Annexure L to the Affidavit of Ms Watson.

   [19] Transcript of sentencing hearing in the District Court of Western Australia on 10 November 2015, Annexure L to the Affidavit of Ms Watson.

   [20] Transcript of sentencing hearing in the District Court of Western Australia on 10 November 2015, Annexure L to the Affidavit of Ms Watson.

10. On 10 November 2015, her Honour Davis DCJ imposed a term of imprisonment of 5 years 6 months with respect to the 15 counts on the indictment and for the 4 charges.[21]  The sentence was backdated to commence on 7 March 2015 with Mr Atkinson being made eligible for parole.

    [21] Transcript of sentencing hearing in the District Court of Western Australia on 10 November 2015, Annexure L to the Affidavit of Ms Watson.

11. Counts 2 ‑ 11 on the District Court indictment are 'serious sexual offences' as defined in s 3(1) of the Act.

Reports and treatment programs

1. Given that this is a preliminary hearing, no reports were prepared.  However, a number of reports in relation to Mr Atkinson which have been prepared for previous sentencing hearings were produced by the applicant.  I will outline the salient aspects of the principal reports.

2. In 2000, Ms Wolf, counsellor and therapist, stated in a report that Mr Atkinson admitted to looking up young girls' skirts since 18 years of age which then developed into a 'steady build up' of sexualised interest in young girls.[22]  Further, throughout his adult life Mr Atkinson has had difficulty in developing intimate relationships with adult females, has held distorted cognitions, and has groomed his victims and their families to facilitate his sexual offending.

   [22] Report of Ms Wolf dated 1 May 2000, Annexure M to the Affidavit of Ms Watson.

3. In 2000, Ms Zuin observed that Mr Atkinson had developed a rapidly escalating pattern of paedophilic behaviours with two victims after accessing child pornography through the internet.[23]  Ms Zuin, psychologist, observed that Mr Atkinson attempted to justify his sexual deviance in respect of children and that he was at a 'high' risk of reoffending.  Ms Zuin observed that it was difficult to assess the progress that Mr Atkinson had made from nine sessions of counselling.

   [23] Report of Ms Zuin dated 1 June 2000, Annexure N to the Affidavit of Ms Watson.

4. Ms Sampson, clinical and forensic psychologist, provided a psychological report dated 22 June 2015 for the purpose of the sentencing proceedings in 2015.[24]  Ms Sampson stated that Mr Atkinson's offending is driven by sexual gratification, sexual deviance, opportunity, an inability to meet his sexual needs in an appropriate relationship, emotional identification with children, impulsivity related to ability to control sexual impulses, sexual preoccupation, sex as coping, depression, immaturity and poor judgment.

   [24] Report of Ms Sampson dated 22 June 2015, Annexure R to the Affidavit of Ms Watson.

5. Ms Sampson identified a deviant sexual arousal pattern and assessed Mr Atkinson as having a high risk of sexual reoffending.[25]  Ms Sampson stated that Mr Atkinson's risk of reoffending utilising the Static 99R actuarial tool, which is an actuarial (historical) measure of relative risk for sexual offence recidivism, was high and that his risk utilising the Stable 2007 tool (including dynamic factors) was also high.  Upon combining the two tools, Ms Sampson concluded that Mr Atkinson's risk of sexual offending was 'very high'.[26]  Utilising a 95% confidence interval, offenders that fall within the same category as Mr Atkinson reoffended sexually at a rate of between 24.6% and 57.7% within a five year period.[27]

   [25] Report of Ms Sampson dated 22 June 2015, Annexure R to the Affidavit of Ms Watson.

   [26] Report of Ms Sampson dated 22 June 2015, Annexure R to the Affidavit of Ms Watson.

   [27] Report of Ms Sampson dated 22 June 2015, Annexure R to the Affidavit of Ms Watson.

6. Ms Sampson recommended that Mr Atkinson complete the Sex Offender Treatment Program and the Sex Offender Maintenance Program.

Treatment programs

1. Between 5 September 2001 and 28 March 2002, Mr Atkinson completed the Intensive Sex Offender Treatment Program.[28]  Mr Atkinson was described as psychologically immature but willing and motivated to participate in treatment.  The report noted that Mr Atkinson's offending was often based on his desire to enact his sexually deviant fantasies.  Prior to commencing the program, Mr Atkinson's risk of sexual reoffending was assessed as being 'medium low'.  After completion of the program, Mr Atkinson's risk of sexual reoffending was assessed as being 'low'.

   [28] Completion Report for the Intensive Sex Offender Treatment Program dated 4 April 2002, Annexure P to the Affidavit of Ms Watson.

2. Between 17 June 2002 and 18 November 2002, Mr Atkinson completed the Sex Offender Maintenance Program.[29]  At the conclusion of the program, Mr Atkinson's risk of sexual reoffending was assessed as being 'low'.

   [29] Program Completion Report for the Sex Offender Maintenance Program dated 20 November 2002, Annexure Q to the Affidavit of Ms Watson.

3. On 8 February 2017, Mr Atkinson commenced an Intensive Sex Offender Treatment Program.  However, Mr Atkinson was only able to complete 28 of the 107 planned sessions due to ill health.  The authors of the Non-Completion Report state that Mr Atkinson was scored on the Static 99R tool.  Mr Atkinson's score placed him in the high risk category for being charged or convicted of another sexual offence.  Further, Mr Atkinson was assessed using the Stable 2007 tool which measures dynamic sex offender risk factors.  Mr Atkinson was assessed as being of 'high' risk of sexually offending if his treatment needs were not met.[30]

   [30] Non-Completion Report for the Intensive Sex Offender Treatment Program dated 18 July 2017, Annexure U to the Affidavit of Ms Watson.

1. The Non-Completion Report recommended that Mr Atkinson be afforded another opportunity to undertake the course given that his treatment needs remain 'unmet'.[31]

   [31] Non-Completion Report for the Intensive Sex Offender Treatment Program dated 18 July 2017, Annexure U to the Affidavit of Ms Watson.

2. Between 7 November 2018 and 12 August 2019, Mr Atkinson completed 21 counselling sessions comprising one hour each.[32]  The Psychological Intervention Completion Report confirms that Mr Atkinson engaged positively.  The report also confirms that Mr Atkinson admitted that he still continued to have sexual thoughts about his child victims.

   [32] Psychological Intervention Completion Report dated 5 July 2019 and Psychological Intervention Completion Report – Addendum dated 10 October 2019, Annexure Y to the Affidavit of Ms Watson.

Assessment

1. Counts 2 ‑ 11 on District Court indictment 731 of 2015 dated 18 September 2015 for which Mr Atkinson is currently serving his term of imprisonment constitute a 'serious sexual offence' as defined in s 3 of the Act and s 106A of the Evidence Act 1906 (WA).

2. Further, given Mr Atkinson's expected date of release is 6 September 2020, the statutory requirement that Mr Atkinson might be released within the next 12 months has also been satisfied. Accordingly, the threshold for the State making the application under s 8 of the Act is met.

3. Mr Atkinson has been convicted of 21 serious sexual offences committed against four pre-pubescent children aged between 5 years to 10 years of age over a 14-year period.  Mr Atkinson engaged in prolonged grooming of the children and their parents.  Mr Atkinson has been assessed as having a high risk of sexual offending.  Mr Atkinson has offended despite having undertaken intensive sex offender treatment over many years and has outstanding treatment needs. 

4. Accordingly, in all the circumstances, I am satisfied that there are reasonable grounds for believing that the court might, under s 7(1) of the Act, find that Mr Atkinson is a serious danger to the community. That is, I have a belief in the possibility that the court will be satisfied to a high degree of probability that Mr Atkinson is a serious danger to the community. I therefore allow the application under s 14(1) of the Act and will make the orders sought by the applicant.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JR
Associate to the Honourable Justice McGrath

8 APRIL 2020