The State of Western Australia v Bellamy - [2013] WASC 467

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- BELLAMY [2013] WASC 467

CORAM: SIMMONDS J

HEARD: 12 DECEMBER 2013

DELIVERED : 20 DECEMBER 2013

PUBLISHED : 23 DECEMBER 2013

FILE NO/S: DSO 5 of 2013

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JAMES ANDREW BELLAMY
Respondent

Catchwords:

Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for continuing detention or supervision order - Whether respondent is a serious danger to the community - Whether community would be adequately protected by a supervision order

Legislation:

Criminal Code (WA), s 320, s 323, s 325
Dangerous Sexual Offenders Act 2006 (WA), s 3, s 7, s 8, s 17, s 18

Result:

The respondent is a serious danger to the community
Supervision order made

Category: B

Representation:

Counsel:

Applicant: Mr R G Wilson
Respondent: Mr M R Hall

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Hall & Hall Lawyers

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

Director of Public Prosecutions (WA) v Misko [2012] WASC 259
Director of Public Prosecutions for Western Australia v McGarry [2009] WASC 226
SIMMONDS J:

Introduction

The Director of Public Prosecutions (the DPP) has applied to the court under the Dangerous Sexual Offenders Act 2006 (WA) (Act), s 8 for either a continuing detention order or a supervision order on the basis the court should find, under s 17(1), that the respondent is a serious danger to the community within the meaning of s 7.
Shortly before the hearing the DPP confirmed in its written submissions that the court should find that a supervision order under s 17(1)(b), on the terms set out in a document accompanying those submissions, was sufficient to meet the paramount consideration in s 17(2) of the need to ensure the adequate protection of the community.
However, it is still necessary for me to find that the requirements of the Act have been satisfied before I can make such an order.
These are my reasons for being so satisfied.
I first describe the relevant law.

The law

Section 8 of the Act permits an application to be made only in relation to a person who is under sentence of imprisonment wholly or partly for a serious sexual offence.
Jenkins J in Director of Public Prosecutions for Western Australia v McGarry [2009] WASC 226 most usefully describes 'serious sexual offence' as follows:
The term 'serious sexual offence' is defined in the Act s 3 to have the meaning given to that term in the Evidence Act 1906 (WA) (Evidence Act) s 106A. The Evidence Act s 106A read with pt B of sch 7 of the same Act and the Criminal Code (WA) (Criminal Code) relevantly provides that serious sexual offences are any of the offences contained in ch XXXI of the Criminal Code, the penalty for which is 7 years' imprisonment or more. The Criminal Code ch XXXI is headed 'Sexual Offences' and contains the majority of the sexual offences in Western Australia. Offences contained in ch XXXI which would fall within the definition of a 'serious sexual offence' include all sexual offences against children under the age of 13 years, all sexual offences by a person over the age of 18 years, against a child between the ages of 13 and 16 years, aggravated indecent assault, sexual penetration without consent, sexual penetration of a de facto child or lineal relative, indecent dealing of a de facto child or lineal relative under the age of 16 years and sexual offences against incapable persons. Indecent assault simplicitur and indecent dealing with a child over the age of 16 years are not serious sexual offences [7].
As will be noted, four of the five sexual offences committed by the respondent in this state are 'serious sexual offences', including two of the three offences for which he was under a sentence of imprisonment at the time of the application.
As to the law concerning applications under s 8 of the Act, I gratefully adopt, as a suitable statement for my purposes, the following from McGarry [3] ‑ [6], [8] ‑ [11]:
The Act s 17(1) provides that if a court hearing an application such as this finds that the respondent is a serious danger to the community the court may:
'(a)order that the offender be detained in custody for an indefinite period for control, care or treatment; or
(b)order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.'
Section 7(1) provides that before the court can make a finding that the respondent is a serious danger to the community, it must be satisfied that there is 'an unacceptable risk that, if [the respondent] were not subject to a continuing detention order or a supervision order, the [respondent] would commit a serious sexual offence'.
Section 7(2) states that the DPP has the onus of satisfying the court of the matters in s 7(1) and that the court must be satisfied:
'(a)by acceptable and cogent evidence; and
(b)to a high degree of probability.'
The standard of proof to a 'high degree of probability' is higher than the civil standard, being proof on the balance of probabilities, but lower than the criminal standard, being proof beyond reasonable doubt.
…
The Act s 7(3) states that in deciding whether to find that a person is a serious danger to the community, I must have regard to the following matters:
'(a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;
(b)any other medical, psychiatric, psychological, or other assessment relating to the person;
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future;
(d)whether or not there is any pattern of offending behaviour on the part of the person;
(e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person;
(g)the person's antecedents and criminal record;
(h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.'
In Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 [68] - [72] Wheeler JA (Le Miere AJA agreeing) held that if a court found that an offender was a serious danger to the community it must make either an order under s 17(1)(a) or (b) for custody or supervision, respectively. A court does not have a discretion not to make an order.
Her Honour also considered what was meant in s 7(1) by the words 'unacceptable risk'. Her Honour said:
'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 likely 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.'
Wheeler JA's views were affirmed in the Director of Public Prosecutions (WA) v GTR [2007] WASC 318.
I should note, as to the choice between making an order under s 17(1)(a) of the Act and making an order under s 17(1)(b), s 17(2), already referred to. I return to that provision below.

Matters in this hearing

Pursuant to orders for this hearing made by McKechnie J on 9 October 2013, the respondent underwent examinations by two psychiatrists, Dr Gosia Wojnarowska and Dr Sam Febbo.
For the purposes of the hearing, the DPP prepared a three volume Book of Materials, which became exhibit 1 at the hearing. No objection was taken to any of the contents of exhibit 1.
Exhibit 1 includes reports by Dr Febbo, dated 27 November 2013 (Dr Febbo's Report); and by Dr Wojnarowska, dated 26 November 2013 (Dr Wojnarowska's Report) (together, the Psychiatric Reports).
Exhibit 1 also includes a Community Supervision Assessment Report, dated 3 December 2013 and signed by three officers of the Department of Corrective Services (the Community Supervision Assessment Report); and, as a result of an amendment of exhibit 1, a Community Supervision Assessment Report Update Report, dated 11 December 2013, and signed by three officers of the Department (the Update Report). One signatory to both the Community Supervision Assessment Report and the Update Report was Ms Julie Dabala.
The parties agreed that it was not necessary for any witnesses to be called at the hearing. They further agreed that I should, subject to any order to be made at the hearing, make my determinations on the basis of exhibit 1 and the written and oral submissions of the parties. In the event, I made no such order.
Prior to the hearing, the DPP provided an applicant's outline of submissions (the Applicant's Written Outline) and an amended applicant's outline of submissions (the Applicant's Amended Written Outline).
By consent of the parties at the hearing before me, exhibit 1 was to be taken as amended by the inclusion as addenda to each of the Psychiatric Reports the matter as to the additional offending by the respondent appearing in the Applicant's Amended Written Outline [6] ‑ [10], both inclusive (the additional offending).
With the Applicant's Written Outline, the DPP provided a draft supervision order (the Draft Supervision Order), among other draft orders.
One of the other draft orders was a draft suppression order (the Draft Suppression Order), to which I will separately return.
I turn now to review the background of the respondent.

Background of the respondent

I take the background of the respondent principally from the Psychiatric Reports. However, I also rely on other material in exhibit 1 and otherwise common ground between the parties.
I first describe the respondent's family and social history.
I then turn to the respondent's sexual history.
Next I describe the respondent's offending history, both in this jurisdiction and elsewhere, in date order, culminating with the most recent offence of his in respect of which he remains in custody after the expiry of the term of imprisonment for that offence.
I note some apparent inconsistencies in the details appearing in different places in exhibit 1 as to the respondent's family, social and sexual histories. However, those differences appear to me to be immaterial for my purposes.
The respondent was born on 13 August 1968, and was thus 45 years and almost 4 months old at the time of the hearing before me.
The respondent has reported an unhappy upbringing and a varied employment history.
His childhood included removal from his parents by child protection services at the age of 2. He was placed with a carer and after movements between foster homes proceeded to a halfway house as a teenager. At that stage he was separated from his siblings.
He was reunited with his parents also as a teenager and with one interruption resumed living with them until late in his teenage years, when they were living in Queensland.
He was educated to year 10, when he left feeling overwhelmed and that he did not fit in.
After leaving his parents he moved to New South Wales. There he was initially employed in forklift driving and then as a security guard. His mental health deteriorated and he lived on the streets for a few years. At that time he worked as a sex worker, and used illicit substances, including amphetamines, cannabis and alcohol.
Most recently, he has worked in the cleaning industry and as a traffic controller in this State. However, since 20 November 2009 he has been serving a 4 year sentence of immediate imprisonment here for his most recent offending. That sentence expired on or about 20 November 2013, since when he has been in custody pursuant to the order of McKechnie J of 9 October 2013 until this application is determined or further order of the court.
The respondent has reported three significant relationships, the first of which began as a very late teenager and lasted for a year and the second of which lasted two years. His current relationship is with his wife. His wife continues to support him. He appears to have no children by any of these relationships.
As to his sexual history, the respondent has reported sexual and physical abuse beginning when he was 5 years old. He was abused at least into his mid‑teens. His abuse was at the hands of males, at least for the most part.
He also reported being raped by males when he was in his 20s, and in 2003 while he was in jail.
The respondent has also reported a history of the use of pornography and having sexual fantasies about young girls of about 5 years of age. He reports having stopped fantasising about children since having completed the Sex Offender Treatment Program in 2011.
As to his offending history, the earliest incident for which there is any detail was an uncharged one, in New South Wales in 1991 (the additional offence), which the respondent has admitted. The victims were twin girls, aged approximately 6 years, whom the respondent touched on the outside of their clothing and in the vaginal area. The respondent had been staying with a family at that time and the victims were the children of friends of the family. The respondent said that at that time he had been viewing adult pornography regularly and smoking cannabis.
The respondent has also admitted to having offended against other victims in relation to whom he had not been convicted, with the victims being typically young girls aged 5 to 10 years who had been known to him (the other additional offences). I have no further details in respect of those other matters.
The additional offence and the other additional offences together made up the additional offending, above.
On the information I have, there were two offences of indecent assault (child under 10 years of age) in 1993, in New South Wales, one on a child of 5 years and another on a child of 8 years, of which the offender was convicted in the Campbelltown Local Court and for which he was fined and placed on a 3 year recognisance order, which he breached. The offence on the child of 5 years involved the offender befriending the victim at the home of a relative and, while assisting the victim on a bicycle, requesting permission to place his hand in her pants. The request was denied but the offender respondent proceeded anyway, rubbing her vagina. The other offence, on the 8‑year‑old, involved the performance of like acts involving her.
The next relevant conviction, also in New South Wales, was for an offence of aggravated act of indecency (child under 10 years of age) in 1996, in that state, on a child of 5 years. The District Court in that state sentenced him to periodic detention for 12 months. The respondent had taken the victim, his niece, to a reserve, where he pulled down her panties and touched and licked her vagina. The offence occurred when he had been entrusted with the care of the victim.
The next relevant conviction, in this state, was for two offences of indecent dealing with a child under 13 contrary to the Criminal Code (WA) (the Code), s 320(4) on a date unknown between 31 December 2001 and 11 January 2002 in this state. The District Court of this state sentenced him for each to 20 months immediate imprisonment, with eligibility for parole. The victim in each case was the same child, aged 5 1/2, and the offence in each case arose out of the same set of circumstances. The respondent had been welcomed to the home of the victim and offered accommodation. One afternoon he had gone for a walk with the victim. During the walk, the respondent undid the zipper of his trousers, removed his penis and began masturbating until he ejaculated, about a metre away from the victim and in full view. He then slipped his hand beneath the pants and underpants of the victim and touched her vagina for a few seconds before withdrawing his hand from her pants.
The last relevant convictions, also in this state, were for his most recent offending. That offending was one count of indecent assault contrary to Code, s 323 and two counts of sexual penetration without consent (one digital penetration and one penile penetration) contrary to Code, s 325. That offending occurred on a date in August 2008. The District Court sentenced the respondent to a term of immediate imprisonment of 4 years previously referred to, made up of 12 months in respect of the first count, 3 years for the digital penetration and 4 years for the penile penetration, all concurrent.
The victim was 21 years of age, had an intellectual impairment and was the niece of the respondent. She was pregnant at the time.
The respondent had led the victim to a semi‑detached building on the property where the victim lived. The respondent locked the door from the inside. He approached the victim and began to touch her breasts and, although she told him not to do so, he continued.
Then the respondent told the victim he had not had sex for three months and he placed his hands down her pants. He digitally penetrated her vagina with two fingers for a short period of time. Again the victim told him to stop.
The respondent then pushed victim to the ground, pulled his penis out of his pants and told the victim not tell anyone what he was doing. He penetrated the victim's vagina with his penis and had intercourse with her for a short time. The victim told the offender on numerous occasions to stop what he was doing and not to lie on her stomach because she was pregnant. However, he continued to have intercourse with her until he ejaculated in her vagina.
I turn now to consider the matter under s 17(1) of the Act, whether the respondent is a serious danger to the community.

Act s 17(1): serious danger to the community - matters referred to in s 7(3)

I use the structure used by McKechnie J in Director of Public Prosecutions (WA) v Misko [2012] WASC 259. That structure follows s 7(3) of the Act.

(a) the Psychiatric Reports, including cooperation in the examination

I describe for each of Dr Febbo's Report and Dr Wojnarowska's Report the background to each, their respective psychiatric diagnoses of the respondent and their respective risk assessments.
Dr Febbo's Report indicates he reviewed the contents of exhibit 1, as to those volumes he had access to, vol 1 and vol 2 only; and also indicates he interviewed the respondent on two occasions for a total of 4.5 hours. It is common ground that Dr Febbo's Report takes account of the additional offending. I also consider Dr Febbo's Report takes account of all the other matters I have described in the section 'Background of the respondent', save for the detail I provide there as to the 1993 offences in New South Wales.
Dr Febbo's Report describes his psychiatric diagnosis for the respondent using the structure based on American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM - IV - TR). The diagnosis Dr Febbo describes is as follows:
•Axis One (Clinical Disorders): a chronic major depressive episode associated with significant anxiety, currently being partially treated; paraphilia (paedophilia); gender identity disorder; and symptoms of Post Traumatic Stress Disorder.
•Axis Two (Personality disorders and mental retardation): a borderline personality disorder; and antisocial personality traits.
•Axis Three (Physical conditions): a physical condition was not identified.
•Axis Four (Psychosocial and environmental problems): a history of severe physical and sexual abuse in childhood; likelihood of significant stress related to release and relocation into a community setting; and uncertainty in relation to level of social support.
•Axis Five (Global Assessment of Functioning): 60 to 50 with moderate symptoms (moderate difficulty in social and occupational functioning) to serious (serious impairment in social and occupational functioning).

Dr Febbo's Report provides a risk assessment indicating that he had used three tools, two actuarial instruments and one structured professional assessment tool, as well as a review of significant factors in the respondent's offending.
The two actuarial tools were the Static 99 and the Hare Psychopathy Checklist - Revised (PCL ‑ R) tools. The structured professional assessment tool was the Risk for Sexual Violence Protocol (RSVP). I would summarise the results Dr Febbo derived from those tools as follows:
•Static 99: using this tool, which is designed to assess the long-term potential for sexual recidivism among adult male offenders not taking dynamic factors into account, the respondent's total placed him in the moderate to high risk category, offenders in that group having a 33% chance of sexual reoffending within a five-year period;
•PCL - R: using this tool, which is an observer rating scale of symptoms related to any psychopathic personality disorder, assessing the extent to which an individual's personality structure conforms to the clinical construct of psychopathy and recognised as a very useful indicator of likely future recidivism for general violent and, to a lesser degree, sexual offending, the respondent's total score overall was 17 points out of a possible 40, relatively high but below the cut‑off traditionally used to diagnose psychopathy, which is 30 points or higher;
•RSVP: using this tool, which includes static risk factors such as prior offending history and dynamic variables being those characteristics of sex offenders capable of change, the following results for the five domains included by this tool were derived:
•For sexual violence history, risk factors of chronicity of sexual violence, sexual violence involving physical coercion and a diversity of sexual violence, but with the risk factors of psychological coercion and escalation of sexual violence absent;
•For psychological adjustment, the presence of problems with self-awareness, problems with stress of coping, and problems from child abuse, with the risk factors of extreme minimisation or denial of sexual violence and attitudes that support or condone sexual violence partially or possibly present;
•For mental disorder, the presence of problems with substance use, violent or suicidal ideation and the likely presence of sexual deviance, but with the risk factors of major mental illness and psychopathy absent;
•For social adjustment, the risk factors of problems with non‑intimate and intimate relationships partially or possibly present but with the risk factors of nonsexual criminality and problems with employment absent; and
•For planning, treatment and supervision, problems with supervision in the past, and the likelihood that the risk factors of problems with planning and problems with treatment partially or possibly present.
•In relation to the RSVP tool, Dr Febbo's Report notes that a feature of that tool is that it can guide professional judgement in relation to the type of offending scenario that may occur with an offender. If the respondent were to reoffend, the future offending scenario would be similar to his previous offences. It was noted that a feature of the respondent's offending was his targeting of vulnerable females, including young children and an intellectually impaired pregnant woman, with the respondent placing himself in a position of trust and some authority, and, although there were some aspects suggestive of planning, unpredictability and impulsivity appear to be significant factors.
Dr Febbo's Report identified five factors as significant in the respondent's sexual offending which in summary were these:
1.A severe borderline personality disorder in addition to significant antisocial personality traits;
2.The likelihood the respondent has sexual deviance;
3.The extreme severity of the respondent's sexual and physical abuse;
4.Stemming from the respondent's severe personality pathology, the likelihood there would be difficulties in various areas of life, including intimate and non‑intimate relationships; and
5.The presence of intermittent substance abuse.
The risk assessment in Dr Febbo's Report is as follows (exhibit 1, page 485):
In my opinion [the respondent] would be at high risk of a further sexual offence if he is not the subject of a detention or community order. However, considering all the information I have and including [the respondent's] motivation not to offend, it is my view that [the respondent's] level of risk is such that supervision can be considered.
I consider Dr Febbo's Report to be thorough, factually correct and credible.
I turn now to Dr Wojnarowska's Report.
Dr Wojnarowska's Report indicates that, like Dr Febbo, she reviewed the contents of exhibit 1, as to those volumes she had access to, vol 1 and vol 2 only; and also indicates she interviewed the respondent on two occasions, in her case for a total of six hours. It is common ground that Dr Wojnarowska's Report takes account of the additional offending. I also consider Dr Wojnarowska's Report also takes account of all the other matters I have described in the section Background of the respondent, in her case including the detail as to the 1993 offences in New South Wales.
Dr Wojnarowska's Report describes her psychiatric diagnosis for the respondent using the same structure as in Dr Febbo's Report. The diagnosis is as follows:
•Axis One (Clinical Disorders): in my view, in very similar, if not identical, terms to those in Dr Febbo's Report.
•Axis Two (Personality disorders and mental retardation): in the same terms as in Dr Febbo's Report, but adding a reference to strong dependent traits.
•Axis Three (Physical conditions): effectively, in my view, in the same terms as Dr Febbo's Report.
•Axis Four (Psychosocial and environmental problems): in my view, in similar terms as to the respondent's childhood as Dr Febbo's Report; referring also to current incarceration.
•Axis Five (Global Assessment of Functioning): 70/100 is the score assigned here, which may be compared with the score from Dr Febbo's Report of 60 to 50.
Dr Wojnarowska's Report also provides a 'Diagnostic Formulation'. I particularly note from that section of the report the following (exhibit 1, pages 505 ‑ 506, 507):
Despite his reported inconsistencies regarding his previous sexual abuse, in my opinion there is no doubt he has been sexually abused throughout his childhood and adolescence on many occasions. [The respondent's] personality inadequacies and low self-esteem have contributed to the development and maintenance of his sexual interest in children. He has responded well already to treatment with medications (antidepressants and antipsychotics) which both have a place in treating paraphilias. He reported that his libido has significantly diminished as a result. [The respondent's] rigid cognitive style and poorly developed abstract thinking has further restricted his ability for self-reflection and self-development. Children have been, and in my opinion still are, 'safe objects' for [the respondent]. His offending can be described as a mixture of opportunistic and predatory and his risk of reoffending is still high. Protective features which negate this risk and make [the respondent], in my opinion, suitable for a supervision order includes his drive to do well and lead an offence free life. In addition, although he does possess antisocial traits, they are not strong or deeply entrenched and he is likely to respond well to the structure of supervision and reporting in the community.
…
In summary [the respondent] is a very complex and much damaged individual who has a cautious prognosis.
Dr Wojnarowska's Report provides a risk assessment indicating that she had used the same three tools as those Dr Febbo used, the Static 99, PCL ‑ R and RSVP tools.
I would summarise the results Dr Wojnarowska derived from those tools as follows:
•Static 99: a score of 5, which appears to be the same or very similar to the score derived by Dr Febbo;
•PCL ‑ R: an overall score of 17, which is the same as for Dr Febbo, although with indications in Dr Wojnarowska's Report of some differences from Dr Febbo's Report in the particular factors subsumed by this tool;
•RSVP: Dr Wojnarowska derived the following results:
•For sexual violence history, in my view very similar to, if not identical with, Dr Febbo's results;
•For psychological adjustment, as for Dr Febbo, Dr Wojnarowska notes the presence of problems with self‑awareness and coping, but at this point in Dr Wojnarowska's Report adds that the respondent's past use of substances and alcohol as a coping mechanism from a young age most likely precluded the development of other more mature mechanisms; the respondent's sexual interest in children is unlikely to be shifted simply through participation in a sex offender treatment program; problems resulting from child abuse cautiously to be identified as an equivocal risk factor highly relevant in the sexual interest in children; and her finding of no evidence of minimisation or denial of sexual violence or attitudes that support or condone sexual violence;
•For mental disorder, the presence of problems with substance use, in my view as for Dr Febbo's Report, but adding references to active symptoms of Post Traumatic Stress Disorder, a risk of relapsing into major depression, and a gender identity disorder yet to be treated;
•For social adjustment, as for Dr Febbo's Report, the risk factors of problems with non-intimate and with intimate relationships but adding that there was a possibility the respondent might also have problems with employment, although given his motivation to work that factor might not be significant; and
•For planning, treatment and supervision, in my view, to a similar effect as to problems with planning but adding a reference to the presence of motivation and referring in respect of this matter to a good response to treatment with medication and psychological treatment (the Intensive Sex Offender Treatment Program).
Dr Wojnarowska's Report is, in my view, to a similar if not identical effect to Dr Febbo's Report as to reoffending scenarios.
The risk assessment in Dr Wojnarowska's Report is as follows (exhibit 1, page 510):
I am of the opinion that [the respondent] remains at high risk of sexual reoffending without further intervention. This risk could be managed in the community with appropriate supervision and treatment.
I consider Dr Wojnarowska's Report also to be thorough, factually correct and credible.
While I consider there are differences between the Psychiatric Reports, in my assessment of them they are to a very similar overall effect for my purposes.

(b) any other medical, psychiatric, psychological or other assessments

There are a number of such assessments with a bearing on serious danger to the community, falling into two categories.
One category is of assessments in relation to previous offending or to previous admissions for psychiatric purposes. To the extent these are not ones of which, in my view, adequate account for my purposes was taken in the Psychiatric Reports, they are, in my view, too old to be of significant assistance to me. The most recent of those of which no such account is taken is a pre‑sentence report for the respondent of 1997. The preparation of this report precedes all of the respondent's Western Australian offending by some three years or more.

(c) propensity

I assume that, as Jenkins J said in the McGarry she assumed
the legislature has used the word 'propensity' in its ordinary meaning. That is, to have an inclination or tendency to do something [88].
I conclude that the respondent has a propensity to commit serious sexual offences in the future. I so conclude because of his history of sexual offending over some years and notwithstanding previous sentences, including sentences of imprisonment; and the psychiatric diagnoses and risk assessments in the Psychiatric Reports and the bases for them.

(d) pattern

I consider that there is a pattern in the offending behaviour of the respondent of the kind identified in both of the Psychiatric Reports involving the targeting of vulnerable females whom the respondent has groomed.

(e) & (f) rehabilitation program and its effect

I note that Dr Febbo's Report describes the respondent's reference to having done a sexual offender treatment program course with the result that his fantasies about young females between the ages of 5 and 16 had stopped and he looked at children in a whole different light. However, Dr Febbo adds later that he was not convinced that the offender's sexual fantasies were now absent. Also, Dr Febbo's Report describes the respondent's reference to having done a voluntary alcohol course. Dr Febbo's Report further refers to the respondent's indications that his plans for the future include engaging with mental health services and getting as much counselling as he could.
Dr Wojnarowska's Report indicates that the respondent has made efforts to address the causes of his offending behaviour and participated in rehabilitation programs with positive effects.
At the same time, I consider that both of the Psychiatric Reports clearly indicate that significant further efforts are required.

(g) antecedents and criminal record

I have previously described the respondent's antecedents and criminal record. Of course, the offences committed in 2001 ‑ 2002 and two of the three offences committed in 2008, being the two sexual penetration offences, for which he was sentenced in this state, as I have indicated, were 'serious sexual offences' within s 3 of the Act. However, I also note that the offences committed in New South Wales were all ones of a kind that, had they been committed in this state, would also have been serious sexual offences for the purposes of the Act.

(h) risk of a serious sexual offence

The respondent has accepted that if he were not subjected to a continuing detention order or a supervision order there is a significant risk he would commit a serious sexual offence.
I am satisfied to the requisite standard that there is such a risk, based on the evidence before me. Again, I particularly note his history of sexual offending over some years and notwithstanding previous sentences, including sentences of imprisonment; and the psychiatric diagnoses and risk assessments in the Psychiatric Reports and the bases for them.

need to protect the community

In the present respect, I note again the pattern in the respondent's past offending which I understand to be the kind of reoffending in which he would engage were he to reoffend, as appears from the Psychiatric Reports. That offending and reoffending would involve the targeting of vulnerable females whom the respondent has groomed. That vulnerability includes that arising from youth.
There can be no doubt there is a strong community interest in and responsibility in relation to protecting its members with such vulnerability from such offending. Such offending has the potential for serious and long‑term effects not only on its victims but also on their families and other loved ones. See McGarry [100].
There is thus a strong need to protect the community from the risk of such reoffending.

(j) any other relevant matter

It is not apparent to me that there is any other relevant matter of which account should be taken in deciding whether to find that the respondent is a serious danger to the community.

Act s 17(1): serious danger to the community - conclusion

In deciding whether to find that the respondent is a serious danger to the community I have had regard to all of the evidence on this matter, and in particular the Psychiatric Reports, the respondent's antecedents and criminal record and the other matters listed in s 7(3) of the Act, as above.
The DPP has satisfied me, by acceptable and cogent evidence and to a high degree of probability, that there is an unacceptable risk that, if the respondent were not subject to a continuing detention order or a supervision order, the respondent would commit a serious sexual offence.
I find that risk makes the respondent a serious danger to the community, by reference to the nature of the risk as I have described it.
I turn now to the matter of the choice between a continuing detention order and a supervision order.

Act s 17(1)(b)(i) and (ii): continuing detention order or supervision order

I gratefully adopt what Jenkins J had to say in McGarry which, for my purposes, is a sufficient account of the law most directly applicable to making the present choice:
The Act s 17(2) states:
'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.'
This is the only guidance given by the legislature as to considerations which a court should take into account when deciding whether to make a continuing detention order or a supervision order. The court must, during this process, take into account any conditions which can be placed on a supervision order so as to ensure the adequate protection of the community and the rehabilitation of the offender: s 18(2) [107] ‑ [108].
I now review the matter, including the terms of the Draft Supervision Order and those parts of the Psychiatric Reports relevant to my consideration of the terms of such an order.
I note again from Dr Febbo's Report the following passage, which I previously quoted in its larger context but quote again here for convenience (exhibit 1, page 485):
In my opinion [the respondent] would be at high risk of a further sexual offence if he is not the subject of a detention or community order. However, considering all the information I have and including [the respondent's] motivation not to offend, it is my view that [the respondent's] level of risk is such that supervision can be considered.
Dr Febbo's Report also contains 'comments' made 'in relation to management and recommendations' to the following effects (exhibit 1, pages 485 ‑ 486):
•existing medication to be reviewed and consideration given to the use of other medication to address his significant intermittent depressive symptoms, with the possible use of anti-libidinal medication if sexual deviance were confirmed; and a case could be made that the respondent should remain on an antipsychotic medication to improve stability because of his severe personality disorder;
•referral to the community forensic mental health service;
•individual psychotherapy through a DSO Psychologist, to address a number of areas including severe childhood sexual and physical abuse, the presence of sexual deviance, issues such as self-esteem and self‑confidence and increasing the respondent's level of insight in relation to factors behind his offending, as well as addressing his substance abuse;
•regular monitoring through police and Corrective Services resources, with GPS monitoring considered useful, specifically monitoring in relation to alcohol or substance abuse; and
•consideration given to referring the respondent to a maintenance Sexual Offending Treatment Program.
I note again from Dr Wojnarowska's Report the following passages, which I previously quoted in their larger contexts above but quote again here for convenience (exhibit 1, pages 506, 510):
His offending can be described as a mixture of opportunistic and predatory and his risk of reoffending is still high. Protective factors which negate this risk and make [the respondent], in my opinion, suitable for a supervision order includes his drive to do well and lead an offence free life. …
…
I am of the opinion that [the respondent] remains at high risk of sexual reoffending without further intervention. This risk could be managed in the community with appropriate supervision and treatment.

Under the heading 'Recommendations' in Dr Wojnarowska's Report she describes a number of 'recommendations' that 'may assist in managing [the respondent] in the community' (exhibit 1, pages 510 ‑ 511). Those recommendations are in summary:
•for the continuation of treatment with medications, with benefit from a trial of other medication to assist with his anxiety symptoms, prevention of relapse of his depressive disorder and treatment of his paraphilia and re-starting of other medication which would not only assist him by decreasing the frequency and intensity of auditory hallucinations but also may achieve an anti-libidinal effect;
•for psychological treatment, in the form of intensive individual treatment to address his ongoing treatment needs as outlined in the Sex Offender Treatment Options Report dated 5 November 2013 of Dr Dylan Galloghly in exhibit 1 (Dr Galloghly's Report) with a concentration on treating trauma related and anxiety symptoms, and with benefit also from attending the Community Based Sexual Offender Maintenance Program;
•for assessment by a psychiatrist who specialises in gender identity and other related disorders;
•for follow‑up supervision of his medication by the area Mental Health Service;
•monitoring for warning signs with the respondent's co-operation might be productive, with management also by the Sex Offender Management Squad; while random home visits by supervisory staff to assess the respondent's lifestyle and mental state might be a useful form of surveillance;
•education of his personal supports about the respondent's offending and the importance of psychosocial stability might be helpful; and
•restrictions on the type of employment and accommodation for the respondent as specified by the Sex Offender Management Squad.
I note considerable commonality between the recommendations for management in the Psychiatric Reports.
The Draft Supervision Order, which as I previously indicated is proposed by the DPP, is in identical terms with the Proposed Supervision Order Conditions in the Community Supervision Assessment Report (the Proposed Conditions), with two kinds of modification.
One kind of modification is the insertion of details left blank in the Proposed Conditions.
Most notably, there is the specification of the place of residence for the respondent. That place and its environs are the subject of the assessments referred to in the Update Report. Those assessments indicate the appropriateness of that specification, in my view.
At the hearing before me, further modifications of the present kind were put to me, as to the commencement date of the order and the duration of it (the further modifications). The commencement date was put as the earliest date at which the place of residence for the respondent would be available to him. That date was 18 December 2013, which would of course need to be modified to allow for the date to be no earlier than the date of this decision. The duration was put as five years. That duration appears to me to be appropriate.
The other kind of modification is the deletion of a provision appearing in the Proposed Conditions, as [18], which in my view is an appropriate deletion.
Counsel for the respondent indicated to me that the respondent accepted the appropriateness of the Draft Supervision Order.
The DPP put to me, as I understood the submission, that the Draft Supervision Order was in accord with the recommendations in the Psychiatric Reports. I agree, subject, however, to a point about one of the provisions in the Draft Supervision Order with respect to medications. I return to that matter below.
I also note that the Draft Supervision Order is consistent with the views as to the treatment needs and suitable community based interventions in Dr Galloghly's Report.
The DPP also put to me, as I understood the submission, that the Draft Supervision Order was sufficient to ensure the adequate protection of the community and the rehabilitation of the offender.
I note that the terms of the Draft Supervision Order are numerous and onerous, placing substantial restrictions on the respondent's freedom. For convenience, I attach the Draft Supervision Order as an addendum to these reasons. It does not include the further modifications.
In my view, having regard in particular to the Psychiatric Reports as well as the Community Assessment Supervision Report and the Update Report and Dr Galloghly's Report, and notwithstanding those substantial restrictions, the Draft Supervision Order is one I should make as appropriate and sufficient to ensure the adequate protection of the community and the rehabilitation of the offender. However, this is subject to the following, with respect to medications.
I have noted what appeared to me to be qualified recommendations in respect of at least some of the medications in the Psychiatric Reports, particularly in Dr Febbo's Report, concerning anti-libidinal medication, as I have endeavoured to indicate above.
I have also noted the view expressed by Jenkins J in McGarry as follows:
In a different application under the Act I expressed the view that I would not compel a dangerous sexual offender to take anti-libidinal medication against their will. It remains the case that it is neither appropriate nor possible to force a person to take such medication against their will. However, there are some cases, and this is one, where the safety of the community cannot be ensured unless the dangerous sexual offender agrees to and does comply with an anti-libidinal treatment regime in the community [116].
I share that view. In that regard, [34] in the Draft Supervision Report, among other things requiring the respondent to undertake medical treatment with hormonal anti‑libidinal medication, gives me concern.
I would add that in this case it is not as clear as it appeared to have been in McGarry that 'the safety of the community cannot be ensured unless the dangerous sexual offender agrees to and does comply with an anti‑libidinal treatment regime in the community' [116]. At the same time, as I consider Dr Febbo's Report indicates, further assessments of the respondent might indicate that such safety cannot otherwise be ensured.
In my preliminary view, Draft Supervision Order [35] ‑ [38] sufficiently addresses the matter of medications including anti‑libidinal medications (see also McGarry [117]), and [34] should not be included. In the event, at the hearing on delivery of this decision as the result of discussions I had with the parties, the final supervision order I made embodied amendments to a number of provisions and the deletion of others. The supervision order annexed to these reasons incorporated those changes.
However, I will hear from the parties on this matter.

Conclusion on continuing detention order or supervision order and terms of the latter

I have concluded that the Draft Supervision Order, with the further modifications and subject to the matter I have raised in relation to [34], is one I should make pursuant to s 17(1)(b) of the Act. Further, I consider the statement of the conditions to be appropriate for that purpose.
I will hear from the parties as to the matter of the terms of the order I should make in the respect I have indicated.
I turn now to the matter of a suppression order in the terms of the Draft Suppression Order.

Suppression order

At the hearing on 12 December 2013, and at the request of counsel for the respondent without opposition from the DPP, I made an order that there be no publication of details of the application until the date listed for the delivery of this decision or further order. I made it on the basis of the concern, described to me by counsel for the respondent, which the respondent had, and which appeared to me to be likely to be well grounded, as to information concerning this offending becoming known in the prison community while he was still there.
The suppression order now sought goes to one of the terms of the supervision order which I have indicated I would make, being the specification in [8] of the Draft Suppression Order of the place of residence for the respondent.
The terms of the Draft Suppression Order are as follows:
The unit, house and lot number and the street name of the approved address specified in Condition 8 of the supervision order made on [ ] December 2013, and of any subsequent address approved pursuant to that condition (being the suppressed information), or any information tending to lead members of the public to identify the suppressed information other than publication by the Commission of Police pursuant to Part 5A of the Community Protection (Offender Reporting) Act 2004, shall not be published until further order of Court.
I was referred to transcript of the hearing in the matter of Director of Public Prosecutions (WA) v Dunne on 27 September 2013 at which Jenkins J made an order in terms very similar to those of the Draft Suppression Order.
I would make the Draft Suppression Order for the same reasons as those given by Jenkins J in Dunne ts 64 ‑ 65, as follows, which in my view fully apply here, substituting 'the respondent' for 'Mr Dunne':
The position is that proceedings such as this should be held in public and that the reasons for a decision in respect of an application under the Act should also be public. That would or those principles would mean that the address of the person released on a supervision order under the Act would also be made public. That is generally desirable. That is, that proceedings in this court should be a matter of public record and members of the public should have access to that record. However, in this case and in similar cases under the Act there are competing public interests.
There is the competing public interest in the rehabilitation of the offender. That means that he has to be given the opportunity, albeit under supervision, to live in the community as a member of the community and to go about his business, his lawful business, in the community without threat or intimidation from others due to the fact that he is simply on an order under the Act. These are competing interests. It's a matter for the court to balance those competing interests. I have done that in taking all matters into account it is my view that it is in the public interest to the address of [the respondent] whilst he is on a supervision order to be suppressed.
All of the details of this matter are in the public domain and are available for people to see and read. I also teach take into account that the terms of the supervision order require [the respondent] to reveal his background of his situation to people who he forms close relationships with. So, it is not as if people are going to - who need to know will be unaware of the situation. I also take into account that the terms of supervision order are very strict. So, again, it's not as if [the respondent] is being let out in secret to do what he wants in secret. Indeed he will be under very close supervision by the authorities. And that is a protection to the public.

Addendum

IN THE SUPREME COURT OF WESTERN AUSTRALIA

DSO 5 OF 2013

IN THE MATTER of the Dangerous Sexual Offenders Act 2006

DIRECTOR OF PUBLIC PROSECUTIONS
FOR WESTERN AUSTRALIA Applicant

-and-

JAMES ANDREW BELLAMY Respondent

_______________________________________________________________________

SUPERVISION ORDER MADE BY
THE HON JUSTICE SIMMONDS ON 20 DECEMBER 2013

_______________________________________________________________________

The Court having found pursuant to section 17 and section 7 of the Dangerous Sexual Offenders Act 2006 that the Respondent is a serious danger to the community, the Court orders that the Respondent be the subject of a supervision order pursuant to section 17(1)(b) of the Dangerous Sexual Offenders Act 2006, for a period of 5 years from 9am on 18 December 2013, on the following conditions:

THE RESPONDENT must:

STANDARD CONDITIONS REQUIRED BY THE ACT

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;

Report to and receive visits from, a Community Corrections Officer as directed by the court;
Notify a Community Corrections Officer of every change of the person's name, place of residence, or place of employment at least 2 days before the change happens;
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
Not leave, or stay out of the State of Western Australia without the permission of a Community Corrections Officer; and
Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order; and
Be subject to electronic monitoring under section 19A.

ADDITIONAL CONDITIONS

Residence

Take up residence at [suppressed] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you;
Not leave or remain out of the State of Western Australia without the permission of a Manager of the Department of Corrective Services and, if so permitted, abide by all conditions of such permission whilst absent from the state;

Reporting to a CCO and supervision by a CCO

10. Report to a CCO at South West Coastal Adult Community Corrections, 1^st Floor, 8 Holdsworth Street, Fremantle, Western Australia (telephone 9431 0350) within normal business hours within 4 days of release from custody under this order, and thereupon advise the CCO of your current name and address;

11. Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO;

12. Report to, and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of you;

13. Notify the CCO of any change of your name at least 2 days before the change is due to happen;

14. Not commence or change employment without the prior approval of the CCO;

Attendance at programs or treatment

15. Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;

16. Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re-offending, as directed by a CCO;

Reporting to WA Police

17. Report to the Officer-in-Charge of the Sex Offender Management Squad, Western Australia Police, at 250 Adelaide Terrace, Perth within 5 days of release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate;

18. Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;

19. If requested, permit Police Officers to enter and search your residence for the purpose of monitoring your compliance with your obligations under this order;

20. When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you;

Disclosure/Exchange of Information

21. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;

22. Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history;

Restrictions on contact with Victims

23. Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Corrective Services;

24. Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;

25. Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;

Criminal conduct

26. Not commit any sexual offence, as defined in the Evidence Act 1906 section 36A;

27. Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;

Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA);

29. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;

30. Not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis;

Curfew

31. Be subject to a curfew, pursuant to section 19B of the Dangerous Sexual Offenders Act 2006, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;
32. When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;

33. When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;

Medications/Mental Health

35. Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO;
36. Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re‑offending and compliance with treatment to the Department of Corrective Services;

37. To engage with mental health services and to obey the instructions of the treating psychiatrist with regard to treatment and medication;

38. Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO;

Prevention of high-risk situations

39. Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO;

40. Not possess, consume or use alcohol;

41. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
42. Not remain in the presence of females who are affected by alcohol, unless the identity of such person is approved in advance by the CCO;

43. Not remain in the presence of any person affected by a prohibited drug;

44. Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place;

45. Have no contact with any child under the age of 16 years, whether such contact is in person, in writing, by telephone or by electronic means, unless
(a) the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
(b) the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.

('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication);

46. Where any unsupervised contact with a child under the age of 16 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child;
47. Provide details of any contact with a child under the age of 16 years both to your CCO and to the Police on the next occasion you report to that person or agency;
48. Report immediately to your CCO the formation of any domestic, romantic, sexual or otherwise intimate relationship by you with a person who has children under the age of 16 years in their care either full time or part time;

49. Not conduct computer searches for, nor collect in either electronic or permanent form, images of children, whether indecent or not;

50. Whilst in any public place, not be in present possession of any children's toy, game or confectionary capable of constituting an enticement to children, unless such possession is for a legitimate purpose;

52. Make full disclosure regarding your past offending and the current order to anyone with whom you commence a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;

53. Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
THE HON JUSTICE SIMMONDS

I have received a copy of this order. I have had explained to me and understand the effect of this Order and what may happen if I contravene it.

Signed by the Respondent _____________________________

JAMES ANDREW BELLAMY

In the presence of:   _____________________________
Name and address:  _____________________________
  _____________________________
Date:  _____________________________