The State of Western Australia v Byron

[2007] WASC 171

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BYRON [2007] WASC 171

CORAM:   BLAXELL J

HEARD:   6 JULY 2007

DELIVERED          :   31 JULY 2007

FILE NO/S:   MCS 5 of 2007

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

NEVIL BADEN BYRON
Respondent

Catchwords:

Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for continuing detention order - Application not opposed - Reasons for making continuing detention order

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 7, s 8, s 17, s 27

Result:

Continuing detention order made

Category:    B

Representation:

Counsel:

Applicant:     Mr K P Bates

Respondent:     Ms R M Parks

Solicitors:

Applicant:     State Director of Public Prosecutions

Respondent:     Edward John Myers

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

The State of Western Australia v AA [2006] WASC 279

1. BLAXELL J: This is an application for a continuing detention order under s 8 of the Dangerous Sexual Offenders Act 2006 (WA). The respondent does not oppose the application, and through his counsel has consented to the making of such an order.

2. Notwithstanding this consent, the extraordinary power of the Court to order the continuing detention of the respondent must not be exercised lightly, and my decision whether or not to grant the application must be reached in accordance with the Act.  As noted by Murray J in The State of Western Australia v AA [2006] WASC 279 at [6] ‑ [7], the determination of the application involves a two stage process. I must first decide whether I should find that the respondent is a serious danger to the community within the meaning of s 7 of the Act. If that threshold question is answered affirmatively, I must then make either a continuing detention order or a supervision order, bearing in mind that "the paramount consideration is to be the need to ensure adequate protection of the community".

3. In considering these issues, I have before me a large volume of materials including the two psychiatric reports prepared pursuant to s 37 of the Act, all of which have been received into evidence by consent.

The history of the respondent's offending

1. The respondent was born on 31 August 1949 and is now 57 years of age.  He has a long record of convictions for offences of a sexual nature commencing from when he was 21 years of age.

2. The respondent's first offence in 1970 occurred while he was sweeping out shearer's quarters and a 3‑year‑old girl came into the room.  He put her on a bed, touched or penetrated her vagina with his finger, and then inserted two (dead) burnt matches into her vagina.  He was convicted of indecent dealing with a female under 16 years of age and sentenced to 2 months imprisonment. 

3. In 1974 the respondent was placed on 3 years probation after being convicted of an offence of aggravated assault.  This offence occurred at a beach after the respondent had shown a 10‑year‑boy and an 8‑year‑old girl some pictures of nude women.  He then took the girl into some nearby sand dunes and touched her vagina through her shorts.

4. In 1977 the respondent was convicted in South Australia of indecent behaviour, but no details of this conviction are available. 

5. In 1978 (when the respondent was 29 years of age) he was convicted in Queensland of wilful unlawful exposure.  This incident occurred at the Ipswich State High School when the respondent entered the swimming pool area and exposed himself to female students during their swimming lessons.

6. In 1980, the respondent was convicted in Queensland of two offences of aggravated assault of a female under 16 years of age.  These offences occurred while the respondent was with a group of children involved in swimming activities.  He placed his hand inside an 11‑year‑old girl's swimming costume and touched her vagina.

7. In 1991 when the respondent was 42 years of age, he was convicted in Western Australia of wilful exposure.  While drinking at a hotel he exposed his penis to two girls aged 11 and 12 years who were playing in the foyer area.  The respondent was fined $250 for this offence.

8. In February 1995, the respondent appeared in the District Court and was sentenced to a total of 15 months imprisonment for four offences of indecently dealing with a child under 13 years and two similar offences committed on a child under 16 years of age.  These offences were representative of a course of conduct over a period of three years during which the respondent sexually molested his two young nieces. 

9. During the same period, the respondent committed 24 further offences of indecent dealing with or sexual penetration of five other young victims who were either his nieces or his nephews.  The respondent was convicted of these offences in the Supreme Court and on 31 May 1995 was sentenced to a total of 16 years 10 months imprisonment and made eligible for parole.

10. These last offences involved a significant escalation in the seriousness of the respondent's offending.  In this regard, there were acts of digital penetration and attempted penile penetration of one of his nieces over a two year period when she was between 10 and 12 years of age.  The respondent made threats to that particular victim that he would kill her and her whole family if she disclosed what had occurred.  The respondent also made similar threats to a second victim, (a 15‑year‑old niece) after subjecting her to attempted sexual penetration and two acts of sexual penetration.

11. The respondent also committed numerous acts of indecent dealing on three of his nephews aged between 6 years and 16 years.  Yet again, he threatened at least one of those victims.  By then the respondent was fairly brazen with his offending and on one occasion he molested the 6‑year‑old while seated next to him at a table notwithstanding that other members of the family were present. 

12. The respondent was not released to parole in respect of the sentences imposed on 31 May 1995, and his sentence expired on 5 March 2007.  However, at the preliminary hearing on 2 March 2007 an order was made for the respondent's continuing detention until the present application could be finally determined.

Other aspects of the respondent's background

1. The respondent was born in Western Australia and grew up in a country town.  He experienced a difficult childhood as a result of health problems due to a premature birth, physical mistreatment by his father who drank alcohol excessively, and rejection by the other members of his family.  After his father died his mother fell ill and he was placed in an orphanage at 10 years of age.  Subsequently, his mother remarried and he returned to her care.  He claims that during this period he was mistreated by his step‑father and also sexually abused by two of his brothers. 

2. The respondent never formed any lasting friendships, and did not perform well at school.  He left both school and home at the age of 14 years, and thereafter worked in a variety of occupations while travelling extensively within Western Australia and inter-State.  He married at the age of 21 years but his relationship with his wife lasted only three months.  It does not appear that he has ever developed any other significant relationships.

3. Consequently, the respondent at the present time has very little in the way of family, social or community supports.  His parents are both deceased and he is totally estranged from his siblings and extended family.  Throughout the period of the respondent's most recent lengthy term of imprisonment his only visitors have been from the prisoner support network known as Prison Fellowship.  In anticipation of his release he was wait‑listed with the Department of Housing and Works for accommodation in the Bunbury area, but no vacancies currently exist or are likely to become available in the foreseeable future.  Despite considerable efforts that have been made on the respondent's behalf, there are no immediate prospects for alternative accommodation in the metropolitan area.

4. During the course of his imprisonment the respondent never completed any sex offender treatment program and he was regularly assessed as being at high risk of re‑offending.  In this regard he accepts only a limited degree of personal accountability for his offending behaviour, and has manifested significant therapeutic needs which have never been addressed.

The independent psychiatric assessments

1. Following the preliminary hearing of the present application, the Court ordered that the respondent undergo examinations by the psychiatrists Dr Gosia Wojnarowska and Dr Peter Wynn Owen, for the purpose of reports as required by s 37 of the Act.  Having carried out very thorough assessments of the respondent, both psychiatrists confirm that he is at high risk of re‑offending, and recommend that he remain in detention until he has at least completed an Intensive Sex Offenders Treatment Program. 

2. It is unnecessary for me to outline the details of those assessments, but in essence, the psychiatrists note that the respondent shows minimal remorse, and appears to lack emotional understanding of the nature of his sexual offending or of the impact it has had upon the young victims.  Furthermore, he tends to see himself as the victim, and avoids responsibility by blaming his offending on factors such as his upbringing, lack of vigilance by the parents of the children involved, and encouragement to commit the offences by the children themselves.  (For example, he told Dr Wojnarowska that young children of 12 years of age can consent to sex so he was "guided by their choice".)  In concluding that the respondent is at high risk of re‑offending, Dr Wojnarowska states in her report that:

   "He is likely to reoffend against pre‑pubertal children as his sexual deviant behaviour has never been addressed and as such it would be difficult to manage it without Mr Byron having more skills and insight into his problem.  His motivation to participate in a community based program appears to stem from different reasons, mainly to satisfy any requirements which may assist him in securing his release.  Given that Mr Byron's offences have been against children, the expected harm, specifically long term psychological damage to the potential victims cannot be underestimated.  He is likely to reoffend when the first opportunity arises meaning when he comes across non‑supervised children.  When intoxicated Mr Byron is likely to be even more bold in his actions.  The knowledge of his cycle of offending has been limited and therefore it is difficult to predict the frequency of future offending and to what extent Mr Byron would seek the victims."

3. Similarly Dr Wynn Owen is of the opinion that the respondent:

   "… presents a high risk of re‑offending if currently released based on a structured clinical judgement.  He has failed to complete a Sexual Offender Treatment Program while in Prison.  There is no evidence that he has acknowledged his sexual deviance, his impulsivity or that he understands how or why to avoid situations that increase his risk of re‑offending except in an extremely superficial manner."

Conclusions

1. The evidence before me clearly establishes that the respondent has a propensity to commit sexual offences against young children, and that that propensity has escalated in seriousness over time.  Despite a very lengthy period of incarceration the respondent does not accept responsibility for his offending, and he has not shown any remorse or insight into the impact of his crimes.  The respondent has made no effort to address the causes of his offending, and independent expert psychiatrists have concluded that if he is not subject to a continuing detention order or a supervision order, there is a high risk that he will re‑offend in a similar manner.

2. The evidence before me is acceptable and cogent, and satisfies me to a high degree of probability that the respondent is "a serious danger to the community" within the meaning of s 7 of the Act.

3. Given that the respondent has not undergone any treatment for the causes of his offending, I also find that he is not suitable for release under a supervision order. The paramount consideration is the need to ensure adequate protection of the community, and pursuant to s 17 of the Act I order that the respondent be detained in custody for an indefinite term for control, care and treatment.