The State of Western Australia v Brown [No 9] - [2017] WASC 355

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- BROWN [No 9] [2017] WASC 355

CORAM: CORBOY J

HEARD: 13 JUNE, 17 JULY, 31 AUGUST, 31 OCTOBER & 23 NOVEMBER 2017

DELIVERED : 7 DECEMBER 2017

FILE NO/S: MCS 13 of 2010

MATTER :Dangerous Sexual Offenders Act 2006 (WA)

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ALWYN WAYNE BROWN
Respondent

Catchwords:

Dangerous sexual offender - Contravention proceedings - Application for continuing detention order or amended supervision order - Dangerous Sexual Offenders Act 2006 (WA) s 23(1)

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 23, s 40A, s40B

Result:

Supervision order amended and extended in time

Category: B

Representation:

Counsel:

Applicant: Ms S Markham
Respondent: Ms M R Barone

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers

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

Briginshaw v Briginshaw [1938] HCA 24; (1938) 60 CLR 336
Director of Public Prosecutions (WA) v Brown [No 6] [2013] WASC 148
Director of Public Prosecutions (WA) v Brown [No 7] [2014] WASC 398
Director of Public Prosecutions (WA) v Brown [No 8] [2015] WASC 390
Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405
Director of Public Prosecutions for Western Australia v Brown [No 5] [2012] WASC 276
TDJ v The State of Western Australia [2014] WASCA 10

CORBOY J: The respondent has a significant history of sexual offending involving children. He was last convicted of a serious sexual offence in July 2007. He was made subject to a continuing detention order under s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) by EM Heenan J in December 2010: Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405.
The respondent was released to the community under a supervision order made by McKechnie J in August 2012: Director of Public Prosecutions for Western Australia v Brown [No 5] [2012] WASC 276. The order was made after his Honour accepted evidence given by a psychiatrist, Dr Febbo, and a psychologist employed by the Department of Corrective Services, Mr Summerton, that the risk of the respondent committing a serious sexual offence could be managed in the community.
The respondent subsequently contravened his supervision order by breaching the curfew requirement of the supervision order; by having contact with the grandchildren of a woman with whom the respondent may have been in a relationship and with other children; by failing to attend counselling appointments; and by consuming alcohol and cannabis. It was not suggested that the respondent had committed a sexual offence following his release to the community but, as McKechnie J observed, the contraventions of the supervision order were 'mostly serious': Director of Public Prosecutions (WA) v Brown [No 6] [2013] WASC 148 [6].
McKechnie J revoked the supervision order and made a continuing detention order after finding that the risk to the community posed by the respondent had increased since his release: Brown [No 6] [106] ‑ [107].
The first annual review of the continuing detention order was held in October 2014. The respondent did not contend that he was no longer a serious danger to the community nor did he submit that the continuing detention order should be rescinded. Accordingly, Simmonds J declined to rescind the order: Director of Public Prosecutions (WA) v Brown [No 7] [2014] WASC 398. In doing so, his Honour accepted evidence from Dr Febbo that the respondent remained at a high risk of offending, particularly if he was not treated with anti‑libidinal medication. At that time, there were difficulties with the respondent commencing anti‑libidinal medication. His Honour also noted that the Department of Corrective Services had been unable to identify suitable accommodation for the respondent if he was released to the community.
Justice Martino conducted the second annual review of the continuing detention order in October 2015: Director of Public Prosecutions (WA) v Brown [No 8] [2015] WASC 390. His Honour found that the respondent remained a serious danger to the community but that the community could be adequately protected if he was released on a supervision order that imposed a number of requirements. His Honour made a supervision order that included curfew conditions a requirement that the respondent reside at a designated curfew address and a prohibition on the use of illicit substances (the Supervision Order).
Justice Martino noted that the evidence of Dr Febbo and Ms Rankin, a psychologist employed by the Department of Corrective Services, was to the effect that the respondent had:
[M]ade gains since he was placed on the previous supervision order and since he breached that order. He has greater insight into his personal risk factors and the benefits to him and to the community of appropriate supervision. Dr Febbo noted that care is required in considering the information provided by the respondent. Having allowed for that caution he remains of the opinion that the risk of the respondent committing an offence is manageable in the community under a supervision order [19].
His Honour further noted that Dr Febbo considered that there was a risk that a further period of incarceration would be counterproductive and that the respondent had commenced anti‑libidinal medication. His Honour also observed that:
Should the respondent be released under a supervision order he will be closely managed by members of the local risk management group that includes police officers from the Sex Offender Management Squad, Community Corrections Officers from the Department of Corrective Services Public Protection Unit and Dangerous Sex Offender psychologists.
If the respondent is released under a supervision order then he will be able to live in accommodation that has been allocated to him under the DSO Supported Accommodation Programme. The proposed accommodation has been used by another Dangerous Sex Offender under supervision and is well known to the Sex Offender Management Squad of the Western Australia Police and to the Department of Corrective Services Public Protection Unit staff. Ms Dabala's evidence was that if the respondent were to be released on a supervision order he can be subject to Global Positioning System Tracking. This will allow the Department of Corrective Services to monitor the respondent's compliance with any curfew requirements, ensure that the respondent does not go to exclusion zones associated with the risk of offending which he is directed not to go to and provide improved information to guide his case management [22] ‑ [23].
In February, June and July 2016 the respondent contravened the Supervision Order made by Martino J. He was convicted in the Magistrates Court of offences against s 40A(1) of the DSO Act.
The State has applied under s 23(1) of the DSO Act for a continuing detention order to be made or, in the alternative, for an order amending the conditions of the Supervision Order or extending the period for which the respondent is to be subject to the Supervision Order, or both (the Contravention Application).
I have concluded that a continuing detention order should not be made but that the Supervision Order should be amended and extended in time.

The DSO Act

Part 2, div 4 of the DSO Act is concerned with contraventions of a supervision order. In particular, s 23 provides that:
(1)If the court is satisfied, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order, the court may -
(a)make an order amending the conditions of the supervision order, or extending the period for which the order is to be subject to the conditions of the supervision order, or both; or
(b)if the court is also satisfied that there is an unacceptable risk that, if an order under this paragraph were not made, the person would commit a serious sexual offence, make a continuing detention order in relation to the person; or
(c)make no order.
(2A)In considering whether it is satisfied as required in subsection (1)(b), the court must disregard the possibility that the person might temporarily be prevented from committing a serious sexual offence by imprisonment, by remand in custody or by the imposition of bail conditions.
(2)In deciding whether to make an order under subsection (1), the paramount consideration is to be the need to ensure adequate protection of the community.
Further, s 40A(1) of the DSO Act provides that a person who is subject to a supervision order and who, without reasonable excuse, contravenes a requirement of the order commits an offence. The maximum penalty for the offence is imprisonment for 2 years.
Although an offence against s 40A(1) is a simple offence, s 40B permits a charge to be prosecuted in the Supreme Court where contravention proceedings have been commenced under pt 2, div 4. The prosecution of the charge may be commenced in the Supreme Court or a police officer or the DPP may apply to have a charge transferred to the Supreme Court where the prosecution has been commenced in the Magistrates Court.
Section 40B(4)(d) provides that any findings of fact by this court in proceedings on a charge of an offence against s 40A(1) may be used in proceedings under pt 2, div 4. As has been mentioned, the respondent was convicted in the Magistrates Court of offences against s 40A(1). The parties assumed at the initial hearing of the Contravention Application that s 40B(4)(d) applied so that findings made in the Magistrates Court could be used in the Contravention Application. However, the parties agreed at a subsequent hearing that s 40B(4)(d) did not apply as the section is limited to findings made in summary proceedings in this court. The parties, nevertheless, also accepted that findings could be made according to the facts on which the respondent had been sentenced in the Magistrates Court - that is, on the facts alleged by the prosecution and admitted by the respondent and the matters put by the respondent in mitigation and which were not disputed by the prosecutor.

The contraventions

The respondent committed five breaches of the Supervision Order. The first breach of the Supervision Order occurred on 23 February 2016. The curfew requirement imposed by the Supervision Order required the respondent to be at his designated curfew address by 7.00 pm.
The respondent explained that he had been dependent on another person to drive him back to the designated curfew address but that person had not arrived to collect the respondent from where he was and so the respondent had walked home. The respondent did not arrive at the curfew address until 7.13 pm.
The respondent was convicted in the Magistrates Court of a contravention of s 40A(1) of the DSO Act and fined $750.
The second and third breaches of the Supervision Order occurred on 27 and 28 June 2016. The respondent had been directed to attend urinalysis testing and a psychological appointment on 27 June 2016. The respondent's electronic monitoring data indicated that he was still at home shortly prior to the scheduled appointments. He was contacted by his Community Corrections Officer to ascertain why he was not on his way to his scheduled appointments. He did not attend those appointments and was directed to attend for psychological counselling the next day. He also did not attend that appointment.
The respondent explained that he misunderstood the time that he was required to attend for urinalysis testing and was unwell over the evening of 27 June and the next morning.
The fourth breach of the Supervision Order occurred on 25 July 2016. The respondent returned a positive result for methylamphetamine on urinalysis testing. The level of methylamphetamine detected was 205 micrograms per litre. The respondent did not provide any explanation for having consumed methylamphetamine.
The respondent subsequently told Ms Place, who prepared a psychological report for the purpose of the Contravention Application, that he used the methylamphetamine at a time when he was under considerable personal stress as a result of family tragedies and other events. That explanation was not offered at the time that the respondent appeared in the Magistrates Court and the respondent did not give evidence in the Contravention Application. In those circumstances, I make no finding as to whether those matters mitigate (assuming that they could) the seriousness of this contravention of the Supervision Order. It is not in issue that this was the most serious of the offences committed by the respondent under s 40A(1) of the DSO Act.
The respondent was convicted of offences against s 40A(1) in respect of the second to fourth breaches in the Magistrates Court on 6 April 2017. He was sentenced to a total effective sentence of eight months imprisonment to be served immediately. The sentence was backdated to 29 July 2016 (exhibit 1, page 62; the respondent's criminal record appears to incorrectly state that the start date for the sentence was 6 April 2017 - see exhibit 1, page 140).
The fifth breach of the Supervision Order occurred on 12 July 2016 when the respondent left his designated curfew residence without his hand‑held tracking device. Contact was established with the respondent four minutes later when he answered the third call made by a monitoring officer. The respondent advised the officer that he was 'about a block away' from his curfew address and he was told to go home immediately and obtain his hand‑held tracking device. The alert was restored ten minutes later so that the respondent had been without his tracking device for 14 minutes.
The respondent was convicted of an offence against s 40A(1) of the DSO Act in respect of the fifth breach in the Magistrates Court on 15 July 2016. He was fined $1,000.
The Contravention Application was filed on 28 March 2017. The respondent has been in custody throughout the determination of the application. Consequently, he has been in custody since 29 July 2016.

The evidence

In support of the Contravention Application, the State relied on the documents contained in a book of materials that was tendered by consent (exhibit 1) and the oral evidence of Dr Wojnarowska, a consultant forensic psychiatrist; Ms Place, a senior forensic psychologist employed by the Department of Corrective Services; and Ms Rathmann, a senior community corrections officer for the Department of Corrective Services. The respondent did not call or give evidence.
The book of materials included a report provided by Dr Wojnarowska in which she concluded that the respondent continued to be at a high risk of sexual reoffending if not subject to a continuing detention order or a supervision order. The respondent's level of risk remained, in her opinion, the same as assessed at the hearing in October 2015 when Martino J rescinded the continuing detention order and made the Supervision Order.
Dr Wojnarowska considered that the respondent's pattern of sexual offending and his own admissions established that he fulfilled the criteria for at least two paraphilic disorders - paedophilia and exhibitionism. She also considered that the respondent suffered from an anti‑social personality disorder and narcissistic personality traits. His risk of reoffending was associated with the presence of those psychopathic traits, sexual deviance and substance abuse.
Dr Wojnarowska accepted that the respondent had made some progress in his treatment and noted that he had not sexually reoffended while in the community. She considered that this was more likely to be related to adequate supervision rather than any changes in the respondent's propensity to engage in sexual offending. However, she noted that there were other protective factors that mitigated the risk of the respondent sexually reoffending including his engagement with psychological counselling and his community corrections officer and his willingness to take anti‑libidinal medication.
Dr Wojnarowska repeated those conclusions in her oral evidence. She considered that the respondent had not reoffended because of the strict conditions of the Supervision Order and the supervision that he had received in the community. His risk factors had been very well managed by the conditions imposed under the Supervision Order and Dr Wojnarowska considered that the respondent's risk of reoffending could be managed in the community under the Supervision Order with some additional conditions, in particular, a condition prohibiting access to pornography.
Ms Place provided a very comprehensive report in which she summarised the respondent's treatment history and provided a detailed account of his presentation during his current assessment. It is not possible to fairly summarise the contents of Ms Place's report but I have noted the following matters in particular.
First, the treatment history provided by Ms Place was drawn from treatment reports and other records maintained by the Department of Community Corrections dating back to 2000. The reports and records express a reasonably consistent view of the respondent. He is obviously intelligent and understands the factors, personal and social, that contribute to the risk of him of sexually reoffending. However, he has not, in the past, demonstrated a capacity for developing and maintaining appropriate strategies to manage those risk factors. For example, his counsellor in 2010 and 2011, Dr Caple, reported that the respondent 'lacked internal barriers and alternative strategies' to deal with his treatment needs in relation to 'social relationships, intimacy deficits, problem solving skills, emotion regulation, and regulating his sexual functioning' (exhibit 1, page 168). Subsequent counsellors, Ms Zuin and Mr Summerton, also reported in 2011 and 2012 that the respondent did not have a detailed plan for dealing with risk factors such as social isolation, substance abuse, pornography use and a tendency to gravitate towards people who were engaged in antisocial behaviour as a way of coping with loneliness.
Second, the respondent engaged in individual counselling with Mr Summerton following his release to the community in 2015. According to Ms Place, Mr Summerton reported that the respondent's engagement with counselling was variable. Mr Summerton was particularly concerned by what he perceived to be the respondent's lack of transparency - that is, he considered that the respondent was reluctant to self‑report on matters that might be regarded as negative and there were inconsistencies over time in what the respondent told Mr Summerton about his relationships with various women, his association with people who used illicit substances and the reasons for returning a positive urinalysis result for methylamphetamine.
Third, the respondent accepted in the assessment interview with Ms Place that his engagement with counselling had been variable. He explained - or rationalised - this according to his views of whether he found a particular session to be helpful. He also admitted that he had, on occasions, hid information from his case management team. However, Ms Place also noted that the respondent did sometimes self‑report on factors relevant to his risk of reoffending but he appeared not to fully implement strategies designed to manage those risks.
In my view, Ms Place's report suggested several matters - that the respondent had a strong need for social relationships and that he was prepared to associate with people who engaged in illicit substance use to establish and maintain social and intimate relationships; that he was resentful of some of the conditions imposed by the Supervision Order, particularly those requiring him not to associate with, or be in the presence of, persons who were using illicit substances; that he had a sense of entitlement that would appear to reflect some narcissistic traits so that he believed that he could adequately assess his own risk factors; and that he considered that he should be less closely monitored so that he could 'get on with his life'. I also infer from Ms Place's report that the respondent tends to associate with peers who are engaged in antisocial behaviour as he considers that they are less likely to judge him negatively.

Ms Place considered that the respondent's lack of transparency and style of responding to counselling and management reflected his personality profile and factors that were entrenched and difficult to treat. I accept that opinion - it was consistent with the views expressed by Dr Wojnarowska and with the treatment records summarised in Ms Place's report. Ms Place was not cross‑examined on that aspect of her report.
Nevertheless, it was apparent from Ms Place's report that the respondent's future treatment needs were well identified and could be accommodated within either a custodial or community environment. She noted that the respondent reported that he no longer had deviant sexual fantasies but that he was willing to take anti-libidinal medication if released to the community.
Ms Rathmann stated in her report that the provider of the accommodation that was occupied by the respondent following his release to the community under the Supervision Order had raised some concerns regarding the respondent's behaviour as a tenant - he had invited negative peers to the property; he had allowed visitors to stay overnight at the property; and there had been some property damage. However, the accommodation provider was willing to allow the respondent to resume occupying the accommodation as the designated curfew residence. The accommodation is provided as part of the DSO Supported Accommodation Program so that the accommodation provider is familiar with the strict conditions imposed under supervision orders.
Ms Rathmann also advised that the respondent had indicated that he intended to make contact with two women with whom he had previously had a relationship and who were known to use illicit substances. The use of illicit substances is a significant risk factor for the respondent and Ms Rathmann proposed that if the respondent was released to the community, the Supervision Order should be amended to incorporate a condition requiring him to immediately report to his community correction officer the details of anyone with whom he had commenced a friendship, or a domestic, romantic, sexual or otherwise intimate relationship.
According to Ms Rathmann's report, the respondent had not recommenced taking anti‑libidinal medication while in custody. As has been noted, the respondent has indicated that he is prepared to take such medication. The requirement to do so is already a condition of the Supervision Order. Dr Wojnarowska made some recommendations in relation to the use of selective serotonin reuptake inhibitors as a form of libido suppressant. I do not propose to vary the conditions of the Supervision Order in relation to the requirement for the respondent to take anti‑libidinal medication. However, I will amend the wording of the condition so that the respondent's community corrections officer can make a direction as to the type of medication the respondent is required to take if medical advice indicates that selective serotonin reuptake inhibitors may be a more effective form of medication than that which had been previously prescribed.
Finally, Ms Rathmann noted that she had discussed with Dr Wojnarowska and Ms Place the possibility that the respondent would seek to access pornographic material if released to the community. It was recommended that the Supervision Order should be amended to prohibit the respondent's access to any pornographic material following that discussion. The recommendation reflected evidence given by Dr Wojnarowska that access to pornography was a risk factor for the respondent. I propose to amend the Supervision Order to prohibit the respondent accessing or having in his possession pornographic material.

Disposition

Section 23(1) of the DSO Act requires the court to determine three questions:
(a)whether the court is satisfied, on the balance of probabilities, that the offender is likely to contravene, is contravening or has contravened a condition of a supervision order;
(b)if so, whether the court is also satisfied that there is an unacceptable risk that the person would commit a serious sexual offence if a continuing detention order was not made;
(c)if the court is not so satisfied, whether the court should amend or extend the existing supervision order.
The first of those requirements has, of course, been satisfied; it is the second and third questions that fall to be considered in this application.
The paramount consideration in determining whether to make an order under s 23(1) is the need to ensure adequate protection of the community: DSO Act s 23(2). It is, of course, for the court to decide whether an order under s 23(1) should be made to ensure adequate protection of the community. However, the power to determine that question must be exercised judicially. That is, it must be exercised having regard to the evidence that is presented in the contravention proceedings.
As I have noted, the State applied for the Supervision Order to be rescinded and for a continuing detention order to be made. Accordingly, the onus rests on the State to establish that there is an unacceptable risk that the respondent would commit a serious sexual offence if a continuing detention order was not made. The civil standard of proof on the balance of probabilities applies but the principles in Briginshaw v Briginshaw [1938] HCA 24; (1938) 60 CLR 336 must be applied given the nature of the State's application: TDJ v The State of Western Australia [2014] WASCA 10 [58].
In Brown [No 6], McKechnie J made some observations on the purpose of a supervision order:
When a person is declared a dangerous sexual offender the least restrictive alternative should be chosen, if it is possible to do so conformably with the protection of the community: The State of Western Australia v Latimer [2006] WASC 235 [22], [49].
The DSO Act does not require every declared offender to be detained in custody. A declared offender has served a term of imprisonment and has been punished for the past behaviour. A person so declared is not being detained as punishment for any crime but because of an unacceptable risk that they may commit a serious sexual offence.
The decision to make a declaration is an exercise in prediction not an exercise in establishing the facts of a past event. A prediction as to future behaviour is less certain than proof of past action.
The DSO Act makes the paramount consideration adequate, not absolute, protection of the community. So, provided the protection of the community is adequate, a supervision order should be imposed [60] ‑ [63].
His Honour further explained that:
Supervision orders are crafted to give a series of yellow or red warning lights when a declared offender is experiencing difficulties complying with the order. The extent of supervision, as evident in this case, means that active steps can generally be taken well before there is serious danger to the community.
A yellow light suggests there are some difficulties in complying with the restrictions of the supervision order. Compliance is difficult and contraventions do not necessarily mean an offender's risk profile is rising. These can often be managed by the case officer or through the court reaffirming the nature of the order.
A red light warning indicates a contravention that does increase the offender's risk profile. Immediate and firm steps, as done here, need to be taken to bring the offender back to court [69] ‑ [71].
In that application, McKechnie J concluded that the respondent's risk of sexual reoffending had increased since he had been released to the community pursuant to the supervision order that his Honour had earlier made. His Honour reached that conclusion having regard to the nature of the respondent's contraventions; the matters about which he had not been completely truthful in counselling and management sessions; the fact that the respondent had resumed using alcohol and cannabis; and the further fact that there had been multiple contacts between the respondent and the grandchildren of a woman with whom he had established a relationship.
In this application, Dr Wojnarowska's evidence was to the effect that the respondent's risk of sexually reoffending had not increased from the time when he had been released to the community in 2015 pursuant to the Supervision Order. I accept that assessment. Dr Wojnarowska has considerable experience in the psychiatric assessment of sexual offenders. She has routinely provided opinions to the court for the purpose of applications under the DSO Act. She was called by the State and the State accepts her opinion as to the risk of the respondent committing a serious sexual offence.
Ms Place did not express an opinion on the risk of the respondent reoffending by committing a serious sexual offence. She identified a number of concerns regarding the respondent's engagement with counselling and which present challenges for his management. However, Dr Wojnarowska's opinion was that the very strict conditions imposed by the Supervision Order were sufficient to manage the risk of the respondent sexually reoffending. Again, I accept that opinion having regard to Dr Wojnarowska's experience in the risk assessment of sexual offenders. I have, of course, also had regard to the nature of the conditions imposed by the Supervision Order and the fact that the respondent has not committed, and has not been alleged to have committed, any sexual offence while he was in the community and subject to the Supervision Order.
Accordingly, I am not satisfied that the State has established that there is an unacceptable risk that the respondent would commit a serious sexual offence if a continuing detention order was not made. Dr Wojnarowska has concluded that the risk of the respondent sexually reoffending is no higher than when he was released to the community under the Supervision Order made in 2015. The contraventions of the order, apart from the positive test for methlyamphetamine, are more in the nature of yellow rather than red lights, to adopt McKechnie J's analogy. The respondent has been in custody since July 2016 - a significant period that ought to have had a deterrent effect and he will be released on even more stringent conditions than those required by the order made by Martino J in 2015. He has not sexually reoffended while in the community. He will be required to take anti-libidinal medication - and I should indicate that, in my view, a failure to comply with that requirement would be a significant breach of the Supervision Order.
However, I am satisfied that the Supervision Order should be amended and extended pursuant to s 23(1)(1) of the DSO Act. I accept the recommendations made by Ms Rathmann to amend the Supervision Order to add conditions, and amend existing conditions, in relation to the respondent not accessing pornography, not remaining in the presence of persons using or affected by alcohol or any illicit substance and reporting the details of any relationship that might become intimate to a Community Corrections Officer, having regard to the evidence that each of those requirements directly relate to the risk of the respondent reoffending.
I also consider that the period for which the respondent is to be subject to the Supervision Order ought to be extended having regard to the evidence concerning the respondent's variable engagement with his counsellors and his community corrections officers. I accept that the respondent's treatment needs are long‑term having regard to the evidence of Dr Wojnarowska and Ms Place about his personality profile and his deeply entrenched psychiatric disorders. The Supervision Order was made for a period of five years and would have expired on 15 October 2020 but for the effect of s 24(2) of the DSO Act.
In my view, the adequate protection of the community requires the respondent to remain subject to the Supervision Order for a longer period. The Supervision Order will be amended so that the respondent will be subject to the order for a period of 7 years rather than 5 years.