The State of Western Australia v Byron [No 2]
[2008] WASC 175
•8 AUGUST 2008
THE STATE OF WESTERN AUSTRALIA -v- BYRON [No 2] [2008] WASC 175
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 175 | |
| Case No: | MCS:5/2007 | 8 AUGUST 2008 | |
| Coram: | McKECHNIE J | 8/08/08 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Supervision order made with conditions | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA NEVIL BADEN BYRON |
Catchwords: | Criminal law and procedure Dangerous sexual offender Whether supervision order appropriate Whether submission to chemical treatment to lower libido |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA) |
Case References: | The State of Western Australia v Byron [2007] WASC 171 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
NEVIL BADEN BYRON
Respondent
Catchwords:
Criminal law and procedure - Dangerous sexual offender - Whether supervision order appropriate - Whether submission to chemical treatment to lower libido
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Supervision order made with conditions
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr R G Wilson
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 Byron [2007] WASC 171
(Page 3)
1 McKECHNIE J: This is an annual review under the Dangerous Sexual Offenders Act 2006 (WA) (and is in fact the first review in relation to the respondent) following orders by Blaxell J reported as The State of Western Australia v Byron [2007] WASC 171 delivered on 31 July 2007. His Honour concluded that the offender satisfied him to a high degree:
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'.
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. [24], [25]
2 The respondent, who has been ably represented by counsel this morning, does not oppose the finding that he remains a serious danger to the community. Having regard to the further material which has been received in evidence and also to Dr Wojnarowska's evidence in oral form this morning, I am of the view that nothing has changed in that regard, in that the respondent remains a serious danger to the community. That being my finding, the question then is, if I find that I may either expressly decline to rescind the order or rescind it and make a supervision order.
3 The respondent argues strongly that I should make a supervision order. It is necessary to go briefly to some of the evidence. There have been changes since Blaxell J's decision. The respondent has completed a sexual offenders course, and as Dr Wojnarowska noted, there has been a shift noted in his attitude. With respect, having looked at all the material, I would have to describe any shift as incremental rather than dramatic, but there has been a shift.
4 The other matter which is important is that Mr E McGrath, Senior Community Corrections Officer, Victoria Park, Community Justice Services has in fact organised a possibility of accommodation through Outreach and with a co-ordinator who has experience working with child sex offenders. That is all to the positive. The respondent is prepared to accept the conditions which have been proposed by Mr McGrath as appropriate for a supervision order. Those 26 conditions are, in the main, really supervision conditions designed to keep watch upon him and should he breach, be able to act instantly.
5 The central issue is raised by Dr Wojnarowska in her report and amplified in evidence this morning. Her evidence is very clearly as follows: she has acknowledged that the respondent's risk has moved from
(Page 4)
- a very high risk to high risk. She did use the word moderate in her report but she has withdrawn from the use of that word, saying it was a bad choice of words. I accept that what she really means is he remains a high risk. She details that the essence of his continuous risk level lies in his inadequate personality structure, his limited ability to reflect and on the presence of sexual deviance.
6 In her opinion, he has almost reached his potential in relation to degree of change. His level of risk is not likely to shift significantly with further treatment. However, the very fact that he has engaged in a therapeutic process will offer better supervision than the one provided by an external agency. She then talks about a continuous supervision order and proposes a number of items, but particularly treatment by an experienced psychologist, and says:
Accepting that Mr Byron continues to experience with his deviant sexual fantasies, it is not unreasonable to suggest treatment with medications.
7 She then lists three possible medications. In her evidence she was quite clear that in her view the anti-libidinal treatment is an essential for safe release under supervision. The respondent, as I say, is prepared to accept all of Mr McGrath's conditions but is not prepared to accept the anti-libidinal treatment on the basis that the drugs (two of them) may produce side-effects which could cause a significant detriment to his health, and notes that he is a 58-year-old overweight man who suffers from high blood pressure and possible other blood disorders.
8 The respondent argues in essence that the 26 conditions proposed are sufficient to monitor him in the community and to, as it were, make his supervision in the community an acceptable risk within the meaning of the Dangerous Sexual Offenders Act.
Findings
9 I accept the evidence of Dr Wojnarowska. There is no contrary evidence. As an expert, her evidence is that without anti-libidinal treatment there is a risk which I would regard as unacceptable.
10 I do not think that the other conditions by themselves in this particular case would sufficiently alleviate the risk to take the chance of release on supervision. Having regard to the evidence of Dr Wojnarowska, the only basis of supervision that I would find as an acceptable risk within the meaning of the Dangerous Sexual Offenders
(Page 5)
- Act would be one in which the respondent was undergoing anti-libidinal treatment.
11 I have no power to order any person to undertake treatment. Certainly I have no power to order the respondent to take anti-libidinal treatment. That is a choice for him as an adult to make; it is his body, and he may make the choice. Nor do I regard an order like this as putting undue pressure on him. No doubt it is a factor for him to consider, along with other factors, including his own personal health.
12 Those are simply matters that everybody must weigh from time to time when taking medication, for whatever reason. My order should not be understood as an order ordering the respondent to take medication; far from it. That is a matter entirely in his hands and properly so. In terms of the Dangerous Sexual Offenders Act under s 33, the paramount consideration is the need to ensure adequate protection of the community.
13 The view I have come to is that the community would be adequately protected because there is accommodation with Outreach with an experienced co-ordinator, and because there are a range of external checks on the respondent, provided also that there was an internal check; that is, anti-libidinal treatment.
14 I would be prepared to rescind the detention order and make an order in terms of the memorandum of proposed orders containing all conditions with condition 13 that the respondent undertake continual biological treatment for paraphilias.
The supervision order
15 The Respondent must during the period of the Order:
1. Be under the supervision of a community corrections officer.
2. Not leave or stay out of the State of Western Australia without the permission of a community corrections officer.
3. Not commit a sexual offence as defined in the Evidence Act 1906 (WA) s 36A.
4. Report to a community corrections officer at Victoria Park Community Justice Services, 269 Albany Highway, Victoria Park, within normal business hours on the day of release from custody and advise the officer of his current name and address.
5. Report to and receive visits from Community Justice Services staff as directed by a community corrections officer.
(Page 6)
- 6. Comply with s 76 of the Sentence Administration Act 2003 (WA) as if he were under a community corrections order.
7. Comply with interagency case management processes as directed by a community corrections officer and agree to the exchange of information between relevant agencies for this purpose.
8. Reside continuously at an address approved by a community corrections officer unless authorised in advance to be absent from that address by a community corrections officer.
9. Not change address or commence or change employment without the prior approval of a community corrections officer.
10. Notify a community corrections officer of every change of his name at least two working days before the change occurs.
11. Attend programmes to address offending behaviour as directed by a community corrections officer.
12. Engage with a psychiatrist, other medical practitioner, psychologist, mentor, accommodation provider, support service and/or support person nominated by a community corrections officer as directed by a community corrections officer.
13. Undertake continual biological treatment for paraphilias (sexual deviancy).
14. Have no direct or indirect contact with the victims of the sexual offences for which he has been convicted unless contact with a victim is in accordance with an agreement made through the Victim Mediation Unit, Department of Corrective Services.
15. Not leave or stay out of the State of Western Australia without the prior written approval of the manager of a Community Corrections Centre and to abide by the conditions of the permit to leave the State.
16. Permit a community corrections officer and Western Australia Police Australian National Child Offender Register officer ('ANCOR officer') to interview any person he associates with or intends to associate with.
17. Permit a community corrections officer and ANCOR officer to disclose his offences to any person he associates with or intends to associate with.
18. Attend for urinalysis or other testing for substance use as directed by a community corrections officer.
(Page 7)
- 19. Not consume or possess illicit substances or prescription drugs that have not been prescribed by a medical practitioner.
20. Report to Police as required under the Community Protection (Offender Reporting) Act 2004 (WA) – on a daily basis unless otherwise directed by the ANCOR Officer.
21. Maintain a daily diary of activities and provide this diary upon request by the supervising community corrections officer or ANCOR Officer.
22. Not attend places where children are present or generally expected to be without being in the company of a responsible adult previously approved by the ANCOR officer or the supervising community corrections officer (including but not limited to parks, schools, beaches, rivers, shopping areas).
23. If he becomes aware he is in an area where children are present or generally expected to be he is to leave the area immediately.
24. Have no membership of or contact with any group where the membership is primarily children.
25. Inform the supervising community corrections officer and ANCOR officer of any membership of or contact with any group and, if deemed unsuitable, cease membership or contact.
26. Not have any direct or indirect contact by whatever means with children under the age of 16 years without reasonable excuse unless that contact is supervised by a responsible adult (who has been approved, in advance, by the supervising community corrections officer and/or ANCOR officer) or is authorised by the supervising community corrections officer or ANCOR officer.
16 It is entirely the respondent's decision whether he wishes to agree to undertake continual biological treatment for paraphilias.
4