The State of Western Australia v Decke [No 4]
[2020] WASC 263
•10 JULY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DECKE [No 4] [2020] WASC 263
CORAM: ARCHER J
HEARD: 2 JULY 2020
DELIVERED : 10 JULY 2020
FILE NO/S: DSO 36 of 2009
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
BRIAN JOHN DECKE
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Review of a continuing detention order - Offender must prove he will substantially comply with standard conditions
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
| Applicant | : | B D Meertens |
| Respondent | : | D J McKenzie |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | David McKenzie Legal Pty Ltd |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107
Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions for Western Australia v Decke [No 2] [2017] WASC 119
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Italiano v The State of Western Australia [2009] WASCA 116
State Western Australia v Yates [2020] WASC 149
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Decke [No 3] [2018] WASC 421
The State of Western Australia v Jonsson [No 3] [2019] WASC 463
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Paul Douglas Allen [No 5] [2019] WASC 359
The State of Western Australia v West [2013] WASC 14
The State of Western Australia v West [No 6] [2019] WASC 427
ARCHER J:
Introduction
This is the second review of a continuing detention order under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). In the first review, Fiannaca J concluded that the continuing detention order could not be rescinded at that time.
This review was heard on 2 July 2020. At the conclusion of the hearing, I announced my decision affirming the continuing detention order and said I would publish detailed reasons in due course. These are my reasons for affirming the continuing detention order.
Background
Declared to be a dangerous sexual offender and released on a supervision order
In Fiannaca J's reasons on the first review, his Honour set out what led to the respondent being found to be a serious danger to the community:[1]
[1] The State of Western Australia v Decke [No 3] [2018] WASC 421 [11] ‑ [15].
The respondent committed a number of sexual offences, mainly against female children, from July 1982, when he was 31 years old, until January 2005, when he was 53. The most serious of his offences involved:
(1)indecently dealing with a nine‑year‑old girl he was babysitting in 1982;
(2)an indecent assault on a young woman in a public place in July 1996. He accosted the young woman while he was naked from his waist down. When she tried to ignore him, he grabbed her around the neck from behind and dragged her backwards until she was able to break away;
(3)indecently dealing with a child who was a lineal relative, being his five-year-old granddaughter, in January 2005. He was staying at his son's house. His granddaughter had gone into the lounge room with her sister to watch television and was lying on the lounge suite when the respondent placed his hand inside the leg opening of her underwear. He pulled his hand out when he was disturbed by his son coming into the room.
From 1987 until 2002, the respondent was convicted of numerous offences of wilful exposure which consisted generally of exposing himself to female children or young women and masturbating in their presence.
For the indecent assault in July 1996 and the offence of indecently dealing with a child who was a lineal relative in January 2005, the respondent was sentenced to terms of imprisonment. For the last of those offences he was sentenced to 2 years and 5 months' imprisonment on 1 March 2007.
The respondent served the full sentence. He was not released on parole because he had not completed an ISOTP. That was due to the unavailability of a program to the respondent, largely as a result of timing. He had been assessed as requiring treatment under such a program before he could be released. It was in the context that the respondent had not completed such a treatment program and was likely to be released into the community without the benefit of supervision that the Director of Public Prosecutions for Western Australia (DPP) made an application under the DSO Act. The application was for a continuing detention order or a supervision order under Div 2 of the DSO Act, on the basis that the respondent was a serious danger to the community, in that there was an unacceptable risk the respondent would commit a serious sexual offence if he was not subject to one of those orders.
On 29 October 2009, Hall J found that the respondent was a serious danger to the community. On the evidence before him, his Honour was satisfied that the community could be adequately protected, at that stage, by releasing the respondent on a supervision order for a period of 10 years, subject to 42 conditions formulated to ensure adequate monitoring of the respondent, control of his behaviour and continuing treatment intended to reduce his risk of sexual offending in the future.
Contravention of supervision order
After being released on the supervision order, the respondent contravened it:[2]
[2] Decke [No 3] [17].
The respondent contravened the supervision order on a number of occasions during 2014 and 2015. The contraventions were set out in a table at [45] of Decke [No 2]. In summary, the contraventions that were of particular relevance to the respondent's risk of committing a serious sexual offence consisted of:
(1)having contact with a child under the age of 17 years and failing to report the contact to his Community Corrections Officer (CCO);
(2)failing to comply with lawful directions preventing him from entering certain areas;
(3)failing to comply with a lawful direction requiring him to return to or remain at his residence and charge the transmitter of the GPS device he was required to carry, if it was indicating a low battery;
(4)collecting images of children (which were found on his iPad and his mobile telephone). Some images were from a festival event. Others were of children in school uniforms, taken from the respondent's home and from a nearby 'Men's Shed';
(5)committing an offence under s 557K(6) of the Criminal Code (WA), in that, being a child sex offender, without reasonable excuse he was in or near a public place where children are regularly present;
(6)committing an offence contrary to s 203 of the Criminal Code (doing an indecent act in public), by taking photographs up the skirts of two unsuspecting women on a train; and
(7)conducting computer searches of children.
Fiannaca J described what happened in relation to the breaches:[3]
The respondent was charged under s 40A of the DSO Act in respect of the contraventions. At various times he was also charged with other offences arising from the contravening conduct, including offences under s 557K and s 203 of the Criminal Code. The last of the contraventions involved possession on an electronic storage device of 15 images of children, 13 of them amounting to child exploitation material, showing children in a demeaning and offensive context. Two of them showed children in a sexual context. In respect of the 13 images, he was charged with an offence under s 220 of the Criminal Code of being in possession of child exploitation material. He was convicted of that offence after a trial by jury in the District Court and sentenced on 8 June 2016 to 6 months and 1 day's imprisonment.
On 4 November 2016, he was sentenced in the Perth Magistrates Court to a total effective sentence of 14 months' imprisonment for two of the s 40A offences and four counts of failing to comply with his reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA), contrary to s 63(1) of that Act.
The supervision order is revoked
[3] Decke [No 3] [18] ‑ [19].
In addition to the prosecutions arising from the respondent's contraventions of the conditions of the supervision order, the State sought an order under s 23 of the DSO Act. Under s 23, if a court is satisfied that a person has contravened a condition of a supervision order, it may, among other things, rescind the supervision order and make a continuing detention order.
The State's application was heard by Fiannaca J.[4] His Honour assessed the contraventions in terms of whether, and to what extent, they indicated an increase in the risk that the respondent would commit a serious sexual offence.[5] His Honour found that the later contraventions 'constituted warning flags that the respondent's risk of committing a serious sexual offence was increasing'.[6]
[4] Director of Public Prosecutions for Western Australia v Decke [No 2] [2017] WASC 119.
[5] Decke [No 3] [20].
[6] Decke [No 3] [23].
His Honour concluded, among other things:[7]
The respondent has outstanding treatment needs.
…
I am satisfied that the respondent's risk that he will commit a serious sexual offence has become unacceptable within the community under the current supervision order. Further, I do not consider that the proposed amendments and additions to the supervision order would provide adequate protection of the community against that risk at this stage. That is essentially because of the respondent's lack of honesty and reliability and his resistance to supervision in recent years.
[7] Decke [No 2] [141] ‑ [142].
Accordingly, his Honour rescinded the supervision order and made a continuing detention order.
The first review
A continuing detention order must be reviewed by the court in accordance with pt 3 of the DSO Act. The first review must occur as soon as practicable after the end of a period of one year commencing on the first day on which the person is in custody solely on the basis of the continuing detention order.[8] Fiannaca J conducted the first review. His Honour affirmed the continuing detention order.[9]
Fiannaca J's concerns
[8] DSO Act, s 29(2)(a).
[9] Decke [No 3].
The combination of the following factors led Fiannaca J to conclude that a supervision order would be inadequate to protect the community:[10]
[10] Decke [No 3] [167] ‑ [171].
(i)Insight into offending and paedophilia
The evidence overwhelmingly establishes that the respondent has not gained sufficient insight into his offending and paedophilia. To the extent that he appeared to have made gains during the ISOTP, it appeared at the time of the review that the gains had not been enduring. The respondent's continued minimisation and denial of past sexual offending and the persistence of his distorted thinking about the sexuality of children are matters that remain of concern and indicate a lack of progress in the reduction of his risk.
(ii)Understanding of risk factors
The respondent's understanding of his risk factors and strategies to avoid or deal with risk scenarios remain rudimentary, notwithstanding his participation in the ISOTP and individual counselling. I am not satisfied that he has made sufficient progress in that regard as to enable his risk to the community to be adequately managed under a supervision order.
(iii)Lack of honesty and reliability
On the one hand, the respondent has demonstrated that he is prepared to be frank about his beliefs and attitudes, which has led to the assessments that have been made about his continuing distorted thinking and lack of insight. On the other hand, for the reasons set out at [98] ‑ [103] above, there remain concerns about his honesty and reliability. Those concerns raise doubts about the ability of authorities to supervise him, given that there would be an expectation that he would be forthcoming with matters that might indicate an increase in his risk of reoffending.
(iv)Understanding and acceptance of the need for conditions
Despite his assertions that he would comply with the proposed conditions of a supervision order, the respondent continues to challenge the need for a number of the conditions that are essential for the proper management of his risk of committing a serious sexual offence: see [104] ‑ [110] and [144] above. This appears to be related to a continuing lack of an adequate understanding of his risk factors and the measures that must be put in place to monitor his behaviour and prevent the risk of serious sexual offending arising. In short, his circumstances have not changed substantially from the time of the contravention proceedings.
Fiannaca J was also not satisfied that the respondent would substantially comply with the standard conditions of a supervision order. In addition, his Honour considered that there continued to be a significant risk that the respondent would fail to comply with other conditions that are designed to manage risk.[11]
[11] Decke [No 3] [172].
The evidence
The State relied on a volume of material that contained relevant information, including the three reports prepared for this hearing. The three reports were:
1.a report by psychiatrist Dr Wynn Owen;
2.a report by a forensic psychologist engaged by the Department of Justice, Dr Bannister;
3.a Community Supervision Assessment report from an officer from the Department of Corrective Services, Ms Comery. Ms Comery is a Senior Community Corrections Officer.
Each of these report writers gave oral evidence in the hearing. The respondent did not give evidence.
Legal principles[12]
Reviews of continuing detention orders
[12] This section reproduces, or draws from, what I have written in earlier decisions, such as The State of Western Australia v Jonsson [No 3] [2019] WASC 463.
By s 33 of the DSO Act, a court reviewing a continuing detention order must first determine whether the offender is a serious danger to the community.
If the person is no longer a serious danger to the community, the continuing detention order must be rescinded.[13] If the person continues to be a serious danger to the community, the court must either affirm the detention order or rescind that order and make a supervision order.[14]
Objects of the review requirement
[13] DSO Act, s 33(1)(a).
[14] DSO Act, s 33(1)(b).
In The State of Western Australia v Corbett [No 5], Hall J said (citations omitted):[15]
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for a past offending: it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community, then the continuing need for detention must be considered … It does not follow from this that a court conducting an annual review is bound by the factual findings made at previous hearings. In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community ...
…
The risk of reoffending may change over time. It may be affected by age, health, or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed by a supervision order. There is also the possibility that the risk may increase because of a failure of treatment or a relapse into deviant thinking.
The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, a mere welfare check: they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community ...
Value of expert reports
[15] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [8], [10] ‑ [13].
In Director of Public Prosecutions (WA) v GTR, Steytler P and Buss JA said:[16]
Although there is no doubt, under the Western Australian Act, that a court must have regard to the psychiatrists' reports (and must bear in mind that the authors have an area of expertise not shared by the court), the reports are only a part of the materials that must be considered and the weight to be accorded to them will depend upon their cogency and reliability, when considered in the light of the whole of the evidence. The responsibility for deciding whether or not the offender is a serious danger to the community as defined and, if so, what order should be made is that of the judge alone.
Serious danger - unacceptable risk
[16] Director of Public Prosecutions (WA) vGTR [2008] WASCA 187; (2008) 38 WAR 307[62].
By s 7(1) of the DSO Act, before a court may find that a person is a serious danger to the community, the court must be satisfied that there is an unacceptable 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'.[17] If the court is satisfied of this, it will necessarily follow that the person is a serious danger to the community.[18]
[17] A 'serious sexual offence' is defined very broadly, but relevantly includes sexual offences under ch XXXI of the Criminal Code (WA) for which the maximum penalty is 7 years' imprisonment or more. This includes indecently dealing with a child.
[18] GTR [21].
Determining whether there is an unacceptable risk requires a balancing exercise. On the one hand, the court is required to have regard to, among other things, the nature of the risk (being the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising. On the other hand, the court is required to have regard to the serious consequences for the offender (either detention, without having committed an unpunished offence, or being subject to an onerous supervision order) if an order is made.[19]
[19] Italiano v The State of Western Australia [2009] WASCA 116 [46] (Buss JA).
The court must then decide whether the risk of the person committing a serious sexual offence is so unacceptable that, notwithstanding that the person has already been punished for the offences he or she has committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.[20]
[20] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63], and expressly approved in GTR.
The DPP bears the onus of satisfying the court that there is an unacceptable 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.[21]
[21] DSO Act, s 7(2). And see Director of Public Prosecutions (WA) vPindan [No 3] [2017] WASC 107 [41], [43].
The court must be satisfied by acceptable and cogent evidence and to a 'high degree of probability'.[22] The expression 'high degree of probability' sets a higher standard than the standard of the balance of probabilities but a lesser standard than the standard of beyond reasonable doubt.[23] However, this does not mean that the risk must be greater than 50%. The court must identify 'what it is (if anything) that constitutes the risk and makes the risk unacceptable, and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence'.[24]
[22] DSO Act, s 7(2).
[23] GTR [28].
[24] GTR [34].
In deciding whether to find a person is a serious danger to the community, the court must have regard to each of the matters specified in s 7(3) of the DSO Act:
(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; and
(b)any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d)whether or not there is any pattern of offending behaviour on the part of the person; and
(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; and
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and
(g)the person's antecedents and criminal record;[25] and
(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; and
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
Detention or supervision?
[25] As to which, see Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [19].
As noted earlier, if the court finds that the respondent remains a serious danger to the community, the court must affirm the continuing detention order or make a supervision order.
The DPP submitted that, in order to determine whether the respondent's risk can be managed on a supervision order, it is necessary to examine whether there has been any change in circumstances since the previous review.[26] At the start of the hearing, I confirmed with counsel for the DPP that he was not intending to submit that a supervision order could only be chosen if there has been a change.[27] Such a submission would have been plainly wrong. While the purpose of a review is to allow for a change in circumstances, the statutory exercise that must be undertaken in a review is not in any way limited to whether there has been a change in circumstances.[28]
[26] Applicant's Outline of Submissions for Second Review of Detention on 2 July 2020 [34].
[27] ts 3. Although see ts 107 ‑ 109.
[28] In my view, the cases of Director of Public Prosecutions (WA) vUnwin [No 3] [2013] WASC 178 (see, in particular, at [19]), Pindan [No 3], and Corbett [No 5] do not say otherwise. See also, to similar effect, the more recent The State of Western Australia v Paul Douglas Allen [No 5] [2019] WASC 359 and The State of Western Australia v West [No 6] [2019] WASC 427.
In deciding between a continuing detention order and a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[29] However, this does not mean that there is a pre‑disposition to affirming a continuing detention order.[30] It 'cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order'.[31] Nor does it mean that other considerations are excluded.[32]
[29] Section 33(3) of the DSO Act.
[30] The State of Western Australia v West [2013] WASC 14 [52].
[31] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
[32] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33], citing Williams [57].
The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender, but rather for the ultimate purpose of protecting the community.[33] The court should choose the order that is the 'least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community'.[34]
[33] GTR [97].
[34] West [52(j)], citing The State of Western Australia v Latimer [2006] WASC 235; and Decke. See also Griffiths [22].
In Director of Public Prosecutions (WA) v DAL [No 2],[35] Beech J[36] summarised the principles to be applied in considering whether a supervision order would adequately protect the community:
1.The use of the word 'adequate' indicates that a qualitative assessment is required.
2.In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be imposed so as to ensure the adequate protection of the community, the rehabilitation of the respondent, and his or her care and treatment.
3.The DSO Act does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the DSO Act applies would ever be released.
4.The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.
5.If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, then, because the paramount consideration is the need to ensure the adequate protection of the community, the court must affirm the detention order.
Precondition to a supervision order - compliance with standard conditions
[35] DAL [No 2] [33], citing Williams [57], [86]; Griffiths [20], [103], [107]; and Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [16].
[36] As his Honour then was.
There are standard conditions which must be imposed in every supervision order. By s 33(4), a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will 'substantially comply' with the standard conditions. By s 33(5), the onus of proving this is on the offender.
I respectfully adopt the following propositions set out by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart,[37] in relation to provisions of the DSO Act that are relevantly identical to s 33(4) and s 33(5) (citations omitted):[38]
(1)Section [33(5)] effects a reversal of the burden of proof that ordinarily applies under the Act by virtue of s 40, which deems proceedings under the Act to be criminal proceedings.
(2)As the respondent has the legal burden of establishing that he will substantially comply with the standard conditions of the supervision order, he also has the evidential burden.
(3)However, in deciding whether the burden has been discharged, the court must have regard to all relevant and admissible evidence adduced in the proceedings.
(4)The evidence adduced by the applicant may form part or all of the evidence on which the respondent relies to establish that he will substantially comply. This is in a context in which statements made by a respondent to medical and other professionals are routinely taken into account in proceedings under the Act as evidence of the respondent's state of mind, including his attitudes, beliefs and intentions, without the need for the respondent to give direct evidence about such matters, by virtue of s 42(4), which modifies the ordinary rules of evidence which would otherwise apply.
(5)Therefore, it may not be necessary for the respondent to give evidence concerning his attitudes or intentions in order to prove that he would substantially comply with the standard conditions. The need for him to do so will depend on what other evidence there is from which the court can draw a conclusion about that issue.
[37] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52]. See also State Western Australia v Yates [2020] WASC 149 [31].
[38] Being s 23(1B) and s 23(1C) of the DSO Act.
There are seven standard conditions.[39] They are that the person report to and receive visits from a CCO, notify of any change of name, place of residence or place of employment, be under the supervision of a CCO and comply with any reasonable direction of that CCO, not leave or stay out of Western Australia without permission, not commit a sexual offence as defined in s 36A of the Evidence Act 1906 (WA)[40] during the period of the order, and be subject to electronic monitoring.
[39] See s 18(1) and the definition of 'standard condition' in s 3 of the DSO Act.
[40] Section 36A of the Evidence Act defines a sexual offence as including all of the offences in ch XXXI of the Criminal Code. This definition captures more offences than a 'serious sexual offence' under the DSO Act. A 'serious sexual offence' under the DSO Act relevantly includes sexual offences under ch XXXI of the Criminal Code for which the maximum penalty is 7 years' imprisonment or more. The definition in s 36A of the Evidence Act includes all of the offences in ch XXXI of the Criminal Code, not only those that carry a maximum penalty of 7 years' imprisonment or more.
Serious danger
The respondent conceded through his counsel that there is an unacceptable risk that, if he were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.[41] Nevertheless, I am required to determine whether I am so satisfied, in accordance with the legal framework, and having regard to the s 7(3) factors. However, in light of the concession, I am able to express my reasons more briefly.
Expert reports - s 7(3)(a) and (b) factors
Dr Wynn Owen
[41] ts 14.
Dr Wynn Owen is a forensic consultant psychiatrist with considerable experience in this area. He interviewed the respondent and prepared a report. He had previously seen the respondent, and provided a report, in 2018 for the first review.
I am satisfied from Dr Wynn Owen's report that the respondent remains a serious danger to the community. In particular, I note the following.
The respondent has been diagnosed with paedophilia and exhibitionism.[42] In oral evidence, Dr Wynn Owen explained that sexual deviance is one of the two most significant factors in assessing future risk.[43]
[42] Book of Materials (BOM) page 115.
[43] ts 31 ‑ 32. The other is psychopathy, which is not present in the respondent's case (although he is a rigid thinker - see ts 60 ‑ 62).
The respondent's score on the STATIC‑99R is unchanged since he was assessed in 2018. It places him in the 'Above Average Risk' category. Dr Wynn Owen said:[44]
[The respondent's] past and current minimal treatment response and long history of recurrent offending including offending further to treatment indicates that he is in the High Risk/High Needs cohort of offenders. Within this subset of the 'general' cohort of sexual offenders, individuals with the same score as [the respondent] had a 17.3% likelihood of reoffending within 5 years of release and a 27.3% risk of offending within 10 years of release. To put this likelihood estimate in some perspective to enable comparison: less than 1% of adult males will commit a sexual offence during their lifetime; approximately 10% of all individuals who commit a sexual offence will go on to commit another sexual offence.
[44] BOM page 116. See also ts 25 ‑ 27.
One of the risk factors relevant to the ability to manage an offender in the community is whether there is 'extreme minimisation and denial' of their past offending. There is in the respondent's case. Dr Wynn Owen said that this was both in relation to historical offending and the more recent contraventions of the supervision order. Indeed, Dr Wynn Owen noted that the respondent's description in 2020 of his past sexual offending demonstrated more categorical denial of offending than when assessed in 2018.[45] He said in his oral evidence that this was particularly so with the contact offending.[46]
[45] BOM page 117.
[46] ts 29. See also for Dr Wynn Owen's thoughts on the reasons for that at ts 28 ‑ 30. See also ts 54 ‑ 55.
Although the respondent is now 68 years old, his general health is fair, and his mobility is good. Dr Wynn Owen said that the respondent is 'physically quite capable of committing an offence of indecent exposure or sexually offending against a young child'.[47]
[47] BOM page 118. See also ts 33 ‑ 34.
Dr Wynn Owen also reported that the respondent's self‑report is historically unreliable.[48] He said that the respondent's history of misleading, or not telling, supervisory staff and therapists about his thinking at times of risk and risk development has been previously identified and played out while he was managed on the supervision order. Dr Wynn Owen acknowledged that the respondent did not commit a serious sexual offence while subject to the supervision order, despite having the opportunity. However, Dr Wynn Owen noted that the respondent's breach offences did include non‑contact sexual offences such as possession of child pornography, and that the respondent demonstrated other high risk behaviours such as having children in his car and going to places or events where it was inevitable that children would gather.[49]
[48] And gave an example in his oral evidence - see ts 23.
[49] BOM pages 118 ‑ 119.
In relation to risk scenarios, Dr Wynn Owen said:[50]
[The respondent's] most likely offence is exposure, which may or may not escalate to physical contact. The victim will be a female adult or child and the offence would occur as a form of coping when [the respondent] is experiencing stress.
In the same context of stress [the respondent] is also at risk of contact sexual offences against female children aged 5 ‑ 10 years if the opportunity presents. It is likely that the victim would be someone known to him and with whom he has gained a position of trust. His offending behaviour is likely to be similar to his previous offending against children.
[50] BOM page 119. See also ts 34 ‑ 35.
Dr Wynn Owen set out various statements the respondent made about his attitude to supervision. In particular, Dr Wynn Owen reported:[51]
He noted that when previously in the community that 'SOMS used my diary against me', he also accused SOMS of planting a pornographic magazine in his car found in his car, when challenged on this [the respondent] said: 'Police will do anything. If you don't believe me look at American TV, they kill people just for something to do'.
[51] BOM page 120.
The respondent has a range of unmet treatment needs which have been resistant to treatment intervention.[52]
[52] BOM page 121.
Dr Wynn Owen said that the respondent presents a high risk of serious sexual offending if not detained or released under strict monitoring and supervision. He said that, if the respondent is released, he cannot be relied on to manage his own risk.[53]
[53] BOM page 121.
Dr Wynn Owen said that the respondent has demonstrated ongoing anti‑authoritarian attitudes. Dr Wynn Owen said that, if the respondent was to be supervised in the community, this would have to be taken into account in his management. Dr Wynn Owen said it would be necessary to both cross‑check the respondent's self‑report and to have regular interagency contact to facilitate an informed and consistent message to the respondent and a consistent response to any identified unreliability or negative behaviours.[54]
Oral evidence
[54] BOM pages 121-122.
In his oral evidence, Dr Wynn Owen explained that paedophilia tends to be a lifelong disorder.[55]
[55] ts 18.
Dr Wynn Owen also summarised what he considered to be the most significant matters.[56]
[56] ts 18 ‑ 20.
First, that the counselling relationship between Ms Collyer and the respondent had deteriorated, and appeared to be fragile. He said it appeared that there had been an escalating disengagement from therapy over time.[57]
[57] ts 18.
Second, that in some respects, the respondent's presentation was worse in the 2020 interview than it had been in the 2018 interview, from the perspective of assessing risk and manageability. He said it appeared that the respondent had moved backwards in the following respects:[58]
1.A greater degree of categorical denial of offending;
2.A very overt expression of frustration towards conditions and irritability when discussing that;
3.Overly critical attitude towards the Sex Offender Management Squad and the police, including suggesting that the Squad would make things up to get him returned to prison and referring to people being killed by police and that being okay in America; and
4.Problems with maintaining engagement and the declining engagement with his counsellor Ms Collyer.
[58] ts 18, 39, 42, 45 ‑ 47 and exhibit B.
The first three respects were based on Dr Wynn Owen's observations of the respondent in 2020, compared to 2018. The last was based on what he was told by Ms Collyer.[59]
[59] ts 47.
In oral evidence, Dr Wynn Owen gave a detailed explanation as to the impact of advancing age in the assessment of risk, in relation to sexual offenders generally, and paedophiles specifically. To the extent that the respondent's age affected the risk assessment, he said it had been taken into account.[60]
[60] See ts 20 ‑ 22, 63.
Dr Wynn Owen also explained in his oral evidence the observations he had made in his report as to the respondent's denial of his offending, the possible reasons for that, the respondent's lack of self‑awareness (and his resulting willingness to place himself in high risk situations), and the impact these and other matters[61] had on management and risk assessment.[62]
[61] such as the respondent's attitude towards authority, mentioned elsewhere.
[62] ts 28 ‑ 31. See also ts 48 ‑ 49 (in relation to Fiannaca J's concerns) and ts 59 ‑ 60.
Dr Wynn Owen said that he believed that supervision could significantly reduce the risk of contact offending against children 'to the point that one would hope the community was protected'. He said it would be much more difficult to manage the opportunistic offending, such as the exposure offending and the offending whereby the respondent took photos up skirts. However, he said the risk could be reduced if there was a therapeutic relationship such that any stress could be recognised and observed, and steps taken to change the level of supervision until the stress had eased. He said that the extent of the reduction could not be quantified on the information available. In short, Dr Wynn Owen considered that there was not enough information to know whether the risk of the opportunistic offending could be managed so as to sufficiently protect the community.[63]
[63] ts 66 ‑ 70.
I accept Dr Wynn Owen's evidence.
Dr Bannister
Dr Bannister is a forensic psychologist engaged by the Department of Justice. His report provided an overview of the psychological intervention provided to the respondent since he was made subject to a continuing detention order.
His report did not contradict anything in Dr Wynn Owen's report, and supported it in several respects. In particular, I note the following.
In his report, Dr Bannister set out a number of statements made by the respondent that demonstrated he continued to refuse to take responsibility for his initial offending. Dr Bannister also provided a number of examples of implausible, innocent explanations given by the respondent for the breach offences.[64]
[64] BOM pages 103 ‑ 105, [18], [20] ‑ [21].
The respondent also told Dr Bannister that he presented no risk that required management. When Dr Bannister tested this, it became apparent that the respondent continues to lack insight.[65]
[65] BOM page 105 [22] ‑ [23].
Dr Bannister said that the respondent identified that stress, loneliness, isolation and boredom were risk factors for him. Dr Bannister acknowledged that this implied that the respondent did potentially have some degree of insight into those factors.[66] However, Dr Bannister said:[67]
Overall, the available evidence suggests that [the respondent] has achieved only negligible, unconsolidated and inconsistent changes over an extended period of robust and effortful intervention. … It is reasonable to assume that he is unlikely to make substantial further gains in the future.
[66] BOM page 104 [20] and ts 80 ‑ 82.
[67] BOM 107 [34]. See also ts 77 ‑ 79.
I accept Dr Bannister's evidence.
Ms Comery
I have also had regard to Ms Comery's report. However, it was not directed to the assessment required by s 7, of whether there is an unacceptable risk that the respondent would reoffend if not subject to an order. However, it was useful in the consideration of whether a supervision order should be made, and I refer to relevant parts of that report in subsequent sections.
Propensity - s 7(3)(c) factor
The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. It means[68]
that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.
[68] GTR [178]. See also Griffiths [66].
The respondent is a paedophile. He has a long history of sexual offending against children. I am satisfied that the respondent has a propensity to commit serious sexual offences in the future.
Pattern - s 7(3)(d) factor
There are some patterns in the respondent's offending. These can be described as a pattern of committing indecent acts in public when under stress and a pattern of grooming children to build up to contact sexual offences.
Addressing causes and rehabilitation - s 7(3)(e) and (f) factors
The respondent has received significant treatment, most recently individual counselling. However, as noted earlier, he does not appear to have made any significant treatment gains.
Antecedents - s 7(3)(g) factor
I set out the respondent's history earlier.
Risk and need to protect - s 7(3)(h) and (i) factors
Dr Wynn Owen is of the opinion that the respondent is at high risk of committing a serious sexual offence if not subject to a continuing detention order or community supervision order. I accept his opinion.
There is an obvious need to protect the community from this risk. The types of offences the respondent may commit are likely to cause harm to children.
Other factors - s 7(3)(j) factor
There are no other factors of relevance.
Conclusion
Having considered all of the s 7 factors, I am satisfied that there is an unacceptable risk that, if the respondent were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. It necessarily follows that I find that he is a serious danger to the community.
Continuing detention or conditional supervision order?
Having found that the respondent is a serious danger to the community, the next issue is whether I should affirm the continuing detention order or make a conditional supervision order.
Compliance with standard conditions
As noted earlier, a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will 'substantially comply' with the standard conditions. The onus of proving this is on the offender.[69]
[69] DSO Act, s 33(4) and s 33(5).
I am not satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions. In particular, I am not satisfied that he would substantially comply with any reasonable direction of his CCO or the requirement not to commit a sexual offence as defined in s 36A of the Evidence Act.
Would he substantially comply with any reasonable direction of his CCO?
I have already referred to the management issues that arise in this case. As earlier noted, Dr Wynn Owen said that the respondent's self‑report is historically unreliable. He referred to the respondent's history of misleading, or not telling, supervisory staff and therapists about his thinking at times of risk and risk development while he was managed on the supervision order. Dr Wynn Owen said that the respondent has demonstrated ongoing anti‑authoritarian attitudes. Ms Comery reported on various statements that the respondent made to her which suggest a lack of insight and a level of defiance.[70]
[70] See BOM page 125, last two paragraphs.
The respondent has previously breached the conditions of a supervision order. Ms Comery said:[71]
When discussing the incidences of non‑compliance during his previous DSOSO, [the respondent] continues to minimise and justify his behaviour. … When discussing his previous DSOSO and contraventions, [the respondent] attempted to minimise his behaviour by blaming others, minimising the nature of the contraventions and failing to take ownership of his actions.
[71] BOM page 125.
Three of those breaches were breaches of the condition that he comply with the lawful directions of his CCO. Two of those three involved the respondent going to an area he was not permitted to enter. There was a dance studio in the area which sometimes had children present.[72] These were not trivial or minor contraventions.
[72] See Decke [No 2] [45].
Counsel for the respondent acknowledged that the obstacle for the respondent was that there was nothing in the evidence to suggest that the respondent's attitude towards supervision in the community had changed, and, in fact, it seemed worse.[73] He also acknowledged that there was an absence of evidence of genuine learning.[74]
[73] ts 102.
[74] ts 105.
However, the respondent pointed to his good behavior in prison, including a commendation he had received for his work, as an indicator that he would be manageable in the community. Dr Wynn Owen did not agree,[75] nor do I, essentially for the reasons given by Dr Wynn Owen.
[75] ts 65.
First, Dr Wynn Owen said that the respondent's behavior in prison during this period of incarceration was relatively unchanged from his behavior in prison prior to his release on a supervision order.
Second, Dr Wynn Owen pointed out that the prison environment is a completely different situation to being on a supervision order. I accept that good behavior in prison can be a relevant factor in predicting future performance on a supervision order. However, the respondent's negative attitude to those who supervise appears to be contributed to by the conflict between their belief that he poses a risk and his belief that he does not. That conflict is not present in the prison environment.
Third, Dr Wynn Owen considered that the best indicator of what will happen if the respondent was to be released on a supervision order is, first, his behaviour when previously under supervision and, second, the comments the respondent made most recently about supervision to those who interviewed him for these proceedings.
Next, the respondent submitted that he had learned from the breaches he had committed while subject to the supervision order.[76] There is no evidence of this, and it is not supported by what the report writers wrote about his attitudes towards those who would be involved in his supervision.
[76] ts 102.
The respondent further submitted that he will only be able to properly demonstrate that he can comply with lawful directions when he is in the community again.[77] I accept that this would be the best indicator - his actual performance. However, before I can release him on a supervision order, I need to be satisfied on the balance of probabilities that he would substantially comply with any reasonable direction of his CCO. In making that assessment, I am inevitably limited to his past performance on the supervision order, the other evidence and the expert opinions. The statutory framework does not allow for a 'try it and see' approach. Indeed, counsel for the respondent did not suggest otherwise. Counsel candidly admitted that, given the absence of evidence about any significant change, the respondent's prior behaviour when on a supervision order was the most probative evidence of what he was likely to do on another one.[78]
[77] ts 102.
[78] ts 106.
Next, the respondent submitted that the fact that he has grievances with those agencies does not mean that he will not comply with their directions.[79] Again, I accept this does not inevitably follow. However, his expressed grievances do suggest, in combination with the other evidence, that he is very unlikely to comply.
[79] ts 102.
In these circumstances, I am not satisfied on the balance of probabilities that the respondent would substantially comply with any reasonable direction of his CCO. I am not satisfied that the respondent will comply with that condition in a manner and to an extent that is consistent with the legislative objects.
In the 2018 review, Fiannaca J was not satisfied that the respondent would substantially comply with the standard conditions.[80] His Honour did not specify whether he was not satisfied in relation to particular standard conditions or all of them. Nevertheless, nothing has changed since then to increase the likelihood that the respondent would comply with any of the standard conditions. His Honour's finding is not binding on me. However, if Fiannaca J had reached a different view, this would have caused me to further reflect on my conclusion. As his Honour did not, I simply note this.
Would he substantially comply with the condition requiring him not to commit a sexual offence?
[80] Decke [No 3] [172].
The condition that the person will not commit a sexual offence as defined in s 36A of the Evidence Act during the period of the order goes beyond a condition that the person will not commit a 'serious sexual offence' as defined under the DSO Act. A 'serious sexual offence' under the DSO Act relevantly includes sexual offences under ch XXXI of the Criminal Code for which the maximum penalty is 7 years' imprisonment or more. Section 36A of the Evidence Act defines a sexual offence as including an offence under ch XXXI of the Criminal Code, or attempting to commit such an offence, regardless of the applicable maximum penalty.
The offences of indecently dealing with a child or indecently recording a child are in ch XXXI. With one exception not relevant here,[81] such offences carry maximum penalties of 7 years' imprisonment or more, and are therefore also 'serious sexual offences' as defined under the DSO Act.
[81] The one exception is when the offender is under 18 years of age and the victim is of or over 13 years of age.
When the respondent was previously on a supervision order, he breached it by, among other things, taking photographs up the skirts of two unsuspecting women on a train. He was convicted of doing an indecent act in public contrary to s 203 of the Criminal Code. While this offence is not a sexual offence as defined in s 36A of the Evidence Act, it would have been if the victims had been children, as it would have been an offence of indecently recording a child.
In my view, the risk that the respondent would again breach a supervision order in this way, but to a child, is substantial. That is, I consider that there is a substantial risk that he would commit a sexual offence as defined in s 36A of the Evidence Act, in breach of the standard condition not to do so, if he was released on a supervision order.
In my view, such an offence could not be described as a minor or trivial contravention. First, such an offence would also be a 'serious sexual offence' as defined in the DSO Act. For this reason alone, I consider it could not be described as a minor or trivial contravention. Second, if a child became aware that the offence had been committed, it is likely to cause significant distress and could have a lasting impact on the child's sense of safety. This is an additional, and independent, reason for concluding that such an offence would not be minor or trivial.
Added to that risk is the risk that the respondent would expose himself in the presence of a child, thereby indecently dealing with the child, being a sexual offence as defined in s 36A of the Evidence Act. I accept that the respondent did not expose himself while on the previous supervision order. However, Dr Wynn Owen's opinion, which I accept, is that the most likely future offence is exposure. Such offences would not constitute a sexual offence as defined in s 36A of the Evidence Act unless done in the presence of a child. Nevertheless, there is a high risk that he would do this in the presence of a child. From the respondent's criminal history, it appears that most of his exposure offences were committed in the presence of children.[82]
[82] See Decke [20] ‑ [27].
If the respondent did expose himself in the presence of a child, this would also be a 'serious sexual offence' as defined in the DSO Act. Again, such an offence could not be described as a minor or trivial contravention. Again, it could have a significant impact on the child.[83]
[83] ts 35.
For these reasons, I am not satisfied on the balance of probabilities that the respondent would substantially comply with the requirement not to commit a sexual offence as defined in s 36A of the Evidence Act.
Management issues
As noted in the previous section, the most likely future offence is exposure. There is a high risk that any such offending would be done in the presence of a child, thereby constituting serious sexual offending.
There is also a lesser, but real, risk that the respondent will commit contact sexual offences against female children aged 5 ‑ 10 years if the opportunity presents. Not surprisingly, such offences also fall within the definition of serious sexual offending.
Both of these types of offences can cause significant psychological harm.
In light of the evidence, I am concerned that the risk posed by the respondent could not be adequately managed in the community. I have already referred to the evidence of the witnesses in that regard. In particular:
1.the respondent has previously breached the conditions of a supervision order;
2.the respondent has a history of misleading, or not telling, supervisory staff and therapists about his thinking at times of risk and risk development while he was managed on the supervision order;
3.the respondent appears to lack understanding as to why supervision is required; and
4.the respondent displays ongoing anti‑authoritarian attitudes and a level of defiance.
The paramount consideration is the need to ensure the adequate protection of the community. This does not require that there be no risk of re‑offending. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.
If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, the court must affirm the continuing detention order.
While I have been assisted by the evidence of each of the witnesses, each of whose evidence I accept, it is for me to decide this question.
Having considered all the evidence, I am left in doubt as to whether the conditions of a supervision order would adequately protect the community. Accordingly, I must affirm the detention order.
Accommodation
As Hall J has observed:[84]
Accommodation for a person on a supervision order is not simply a place to live. The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending. The absence of suitable accommodation makes it impossible to be satisfied that the supervision order is presently a viable option.
[84] Corbett [No 5] [80].
Currently, there is no suitable accommodation available. However, there is an avenue that has not yet been exhausted.[85] If suitable accommodation had been the only impediment to releasing the respondent on a supervision order, I would have agreed to adjourn the hearing to enable that avenue to be pursued. However, as it was not the only obstacle, this was not necessary.
Conclusion - whether the risk can be adequately managed in the community
[85] BOM page 126.
The respondent remains a serious danger to the community. The risk that he will commit a further serious sexual offence, if not subject to a continuing detention order or supervision order, is significant.
I am therefore required to determine whether I should affirm the continuing detention order or make a conditional supervision order.
As noted earlier, a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will 'substantially comply' with the standard conditions. The onus of proving this is on the offender.[86]
[86] DSO Act, s 33(4) and s 33(5).
For the reasons I have given, I am not satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions. I therefore cannot make a supervision order.
Further, even if I had been so satisfied, I would not have made a supervision order. As I explained, I am not satisfied that the proposed conditions would reduce the risk to a reasonably acceptable level that ensures adequate protection of the community.
Conclusion
For these reasons, I affirm the continuing detention order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SW
Associate to the Honourable Justice Archer10 JULY 2020
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