The State of Western Australia v Decke [No 5]
[2022] WASC 248
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DECKE [No 5] [2022] WASC 248
CORAM: ALLANSON J
HEARD: 26 JULY 2022
DELIVERED : 5 AUGUST 2022
FILE NO/S: SO 36 of 2009
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
BRIAN JOHN DECKE
Respondent
Catchwords:
Criminal law - High risk serious offender - Review of continuing detention order - Whether offender remains a high risk serious offender - Where no suitable accommodation available for supervised release
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
| Applicant | : | D McDonnell |
| Respondent | : | D J McKenzie |
Solicitors:
| Applicant | : | State Solicitors Office |
| Respondent | : | David McKenzie |
Case(s) referred to in decision(s):
Director of Public Prosecution (WA) v Decke [2009] WASC 312
Director of Public Prosecution (WA) v Decke [No 2] [2017] WASC 119
The State of WA v Decke [No 4] [2020] WASC 263
ALLANSON J:
Introduction
Brian John Decke is 71 years old. He has been in custody since 2015. He is currently detained indefinitely as a high risk serious offender. These proceedings are a review of his continuing detention.
Mr Decke has been convicted of two serious sexual offences against female children: the first was committed in July 1982 when he was 31 years old; the second in January 2005 when he was 53. He has one further conviction for a serious offence: in 2016, he was convicted of possession of child exploitation material.
The intention of the High Risk Serious Offenders Act 2020 (WA) is that a person may be detained indefinitely, not for the purposes of punishment, but for his control, care or treatment. Mr Decke is detained in a prison. There is no treatment available to him in detention that would alter his risk of further offending, and it is not proposed to offer further treatment if a continuing detention order is made. Were I to order that Mr Decke be released under a supervision order, there is no suitable place where he could live. He will remain in a prison because there is no available alternative.
Background
In March 2007, Mr Decke was ordered to serve a term of imprisonment of 2 years and 5 months for the offence of indecent dealings with a lineal relative, committed in January 2005. He was not released on parole and served the full term.
Before he was released, the Director of Public Prosecutions applied for an order under the Dangerous Sexual Offenders Act 2006 (WA), on the basis that there was an unacceptable risk that Mr Decke would commit a serious sexual offence if he were not subject to an order under that Act.
On 29 October 2009, Hall J made an order releasing Mr Decke on supervision for a period of 10 years, subject to 42 conditions for the purposes of monitoring Mr Decke, controlling his behaviour, and continuing treatment intended to reduce his risk of sexual offending in the future.[1]
[1] Book of Materials 1 - 491.
In 2015, Mr Decke was charged with contravening the supervision order. He was also charged with other offences including the possession of child exploitation material, and an offence committed by being near a public place where children were present.
On 8 June 2016, Mr Decke was convicted of being in possession of child exploitation material, contrary to s 220 of the Criminal Code (WA), and sentenced to imprisonment for 6 months and 1 day. That offence is a serious offence as defined in the Act.
On 4 November 2016, Mr Decke was convicted of other offences committed during the supervision order and sentenced to imprisonment, cumulative on that sentence imposed on 8 June 2016.
On 28 April 2017, Fiannaca J rescinded Mr Decke's supervision order and made a continuing detention order under the Dangerous Sexual Offenders Act.[2]
[2] Book of Materials 2 - 902.
On 2 July 2018, on the first review of the continuing detention order, Fiannaca J affirmed the continuing detention order.[3]
[3] Book of Materials 3 - 1170.
On 2 July 2020, on a second review, Archer J affirmed the continuing detention order, finding that she was left in doubt as to whether the conditions of a supervision order would adequately protect the community.[4]
[4] Book of Materials 3 - 1445.
The review under the High Risk Serious Offenders Act
Mr Decke is now subject to the regime under the High Risk Serious Offenders Act, relevant parts of which came into operation on 26 August 2020. Orders made under the Dangerous Sexual Offenders Act continue in operation and are taken to have been made under the new Act. In these reasons, unless I state otherwise, references to legislation are to the High Risk Serious Offenders Act.
The State has applied under pt 5 for a review of the continuing detention. By s 68:
(1) On a review under section 66 of an offender’s detention -
(a) if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or
(b) if the court finds that the offender remains a high risk serious offender it must -
(i) affirm the continuing detention order; or
(ii) subject to section 29, rescind the continuing detention order and make a supervision order.
(2) In deciding whether to make an order under subsection (1)(b)(i) or (ii), the paramount consideration is to be the need to ensure adequate protection of the community.
The first question is whether Mr Decke remains a high risk serious offender. He is a high risk serious offender if the court is satisfied that it is necessary to make a restriction order in relation to him to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.[5]
[5] High Risk Serious Offenders Act s 7.
Section 7(3) sets out matters to which the court must have regard in considering whether it is satisfied:
(a) the report prepared under s 74 for the hearing of the application;
(b) any other medical, psychiatric, psychological, or other assessment relating to Mr Decke;
(c)information indicating whether or not Mr Decke has a propensity to commit serious offences in the future;
(d) whether or not there is any pattern of offending behaviour;
(e) any efforts by Mr Decke to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation programme;
(f) whether or not Mr Decke's participation in any rehabilitation programme has had a positive effect on him;
(g) Mr Decke's antecedents and criminal record;
(h) the risk that, if Mr Decke were not subject to a restriction order, he would commit a serious offence;
(i) the need to protect members of the community from that risk;
(j) any other relevant matter.
The matters set out in pars (h) and (i) are conclusions or findings based on the preceding paragraphs, and any other relevant matters.
The book of materials for the hearing was in four volumes, 1,494 pages. There was no shortage of evidence.
Mr Decke's antecedents and criminal history
Mr Decke's antecedents inform the other relevant factors. His criminal history has been described in detail in the earlier decisions of this court, and I will not repeat it.[6] The following findings are of particular relevance.
[6] See Director of Public Prosecution (WA) v Decke [2009] WASC 312; Director of Public Prosecution (WA) v Decke [No 2] [2017] WASC 119; The State of WA v Decke [No 4] [2020] WASC 263.
First, Mr Decke has three convictions for serious offences, as defined: indecent dealing with a 9‑year‑old child in 1982; indecent dealing with a 5‑year‑old child (a lineal relative) in 2005; and possession of child exploitation material in 2015. The two indecent dealing offences were committed against children known to him - one being a family member, the other a neighbour's child.
Second, while those are the only convictions for serious offences, between 1987 and 2002, Mr Decke was convicted on nine other occasions for wilful exposure, and once for committing an indecent act in public.[7] Over half of those offences were exposure to a child. Committing an indecent act in the presence of a child is indecent dealing, as defined in s 319(3) of the Criminal Code. Conduct like that described in at least some of the wilful exposure offences could amount to a serious offence.
[7] The offence of wilful exposure in any street or public place, or in the view thereof, or in any place of public resort was created by s 66(1) of the Police Act 1892 (WA). That section was repealed in 2004.
That is not to accept that Mr Decke has ten serious offences on his record. The conduct was not charged as indecent dealing, and the elements of the offence under the Police Act 1892 (WA) did not include that it was conduct committed in the presence of a child. The risk of Mr Decke engaging in similar conduct, if not subject to restriction, is relevant to the court's consideration under s 68, but not on the basis submitted by the State.
Third, Mr Decke committed an offence of indecent assault in 1996. It was not a serious offence in the schedule to the Act because the victim was an adult, but it had an element of violence not present in his earlier offending. The sentencing judge described it as an escalation of the previous behaviour.[8]
[8] Book of Materials 1 - 231.
Fourth, the longest sentence imposed on Mr Decke was 2 years and 5 months, in 2007, a sentence that had regard to time he had already spent in custody.
Mr Decke has now been in custody since 2015. Since April 2017, he has been held on indefinite detention under continuing detention orders. That is the longest period he has spent in prison, and exceeds the time served under sentences of imprisonment for serious offences by several years.
Mr Decke has been held as a minimum security prisoner since 2020.
The section 74 report
The first matter to which the court must have regard is the psychiatric report prepared under s 74 for the hearing of the application. The Act does not give primacy to any particular evidence, and the report is only part of the material that must be considered. But it is often the most cogent and up-to-date evidence relevant to assessing the risk that Mr Decke will commit a serious offence in the future.
Mr Decke was assessed by Dr Peter Wynn Owen, Consultant Forensic Psychiatrist, in July 2022. While Dr Wynn Owen was cross‑examined, his assessment that Mr Decke remains a high risk of further serious offending was not challenged.
On that evidence, I find that Mr Decke suffers from two clinical disorders: paedophilic disorder, non‑exclusive type, preference for females; and exhibitionism. He also has an antisocial personality disorder.
Mr Decke has been assessed as having numerous factors that are directly and indirectly associated with an increased risk of future sexual offending. That risk, if he is not subject to a restriction order, is high. The most significant underlying risk is sexual deviance - paedophilia. There are also dynamic risk factors which have not shifted as a result of treatment intervention. He does not acknowledge his sexual deviance and has gained no insight into his past contact offending; this lack of self‑awareness is a significant risk. He has a rudimentary understanding of what led to the wilful exposure offences as a stress management or coping behaviour, but is unable to explain how victims were selected, in particular why there is a high proportion of female children.
Mr Decke denied or minimised the past offending and his breaches of the supervision order. He continues to blame others for his offending. He blames the abuse he suffered in the past, and the failure to provide correct treatment interventions.
Mr Decke is now 71, and the likelihood of future sexual offending normally declines with age. The effect of age is not so significant for paedophile offenders.[9] Mr Decke's offending did not necessarily occur because of his sex drive, but due to other issues including loneliness and isolation and difficulty with navigating intimate relationships, and those have not changed. Those factors have not changed and, despite his age, the risk is not significantly less.
[9] ts 127.
In Dr Wynn Owen's opinion, Mr Decke is unlikely to make further gains from treatment. He is unable to significantly contribute to the management of his own risk. Risk management must rely on external constraints. He must be detained or subject to supervision which will ensure he does not offend.
Mr Decke could be managed in the community if the right conditions were in place. In Dr Wynn Owen's opinion, if Mr Decke can have the stability of sole accommodation, is offered the opportunity to have a counsellor he trusts working with him at the practical level, and the proposed supervision conditions are in place, the risk can be safely managed.[10]
[10] ts 133.
Other medical, psychiatric, psychological, or other assessment
In considering earlier reports, it is not necessary to set the evidence out in detail. I adopt the summary given by Yeats DCJ, when sentencing Mr Decke in 2007:[11]
In 1982 you were provided psychological counselling through Mental Health Services, in 1987 psychological counselling through Osborne Park Hospital, in 1989 psychiatric assistance through Sir Charles Gairdner Hospital and in 1992 a community-based sex offender treatment program facilitated by the Ministry of Justice. Between 96 and 97, a psychiatrist… assisted you and you had a two-year Safecare sex offender treatment program which you completed in 2003 and repeated again in 2004.
In 2006 you had private counselling… and records indicate that you declined to participate in intensive sex offender treatment when you are in prison in 1997…
[11] Book of Materials 1 - 389
During his imprisonment following conviction in 2007, Mr Decke completed a drug and alcohol awareness program. He was recommended for inclusion in a sexual offender treatment program but, due the length of his sentence and when the programs were offered, none was available.
Mr Decke was assessed for the purposes of each of the earlier applications under the Dangerous Sexual Offenders Act.
In August 2009, Dr Sam Febbo, Consultant Psychiatrist, expressed the view that Mr Decke would remain a high risk on release and would require close monitoring and supervision. He recommended that every attempt be made to limit his contact with young females, and there be no unsupervised contact with children, particularly female children. In Dr Febbo's opinion, that condition was required indefinitely.[12]
[12] Book of Materials 1 - 454.
In August 2009, Mr Decke was also assessed by Dr Adam Brett, Consultant Psychiatrist, who expressed the opinion that Mr Decke was a significant risk of reoffending in a sexual manner in the future, most likely by exposing himself. Dr Brett considered that Mr Decke needed intensive sex offender treatment available in the community, noting numerous risk factors in the absence of specific treatment.[13]
[13] Book of Materials 1 - 462.
Dr Brett carried out another assessment for the purposes of the application in 2017. He reported that Mr Decke remained a risk of serious sexual offending, and that he had been placing himself in high risk situations. In his opinion, Mr Decke's risk would be managed on a supervision order. While the risk may reduce with psychological help, there were deep rooted issues which made this unlikely.[14]
[14] Book of Materials 2 - 775.
Dr Wynn Owen interviewed Mr Decke for the purposes of the 2018 annual review. Mr Decke had by then participated in an intensive sex offender treatment program while in custody, with a positive treatment completion report. Dr Wynn Owen reported, however, that when he interviewed Mr Decke, he was unable to demonstrate anything he had learned. Mr Decke gave contradictory statements on significant matters, including that there was no risk should he be alone with children, but also that if someone asked him to babysit he would probably reoffend.[15] Mr Decke further said that he would abide by supervision conditions but apparently resented being told what he could not do. He had limited understanding of the role of sexual deviance in his offending and continued to deny or minimise his offending.
[15] Book of Materials 3 - 970.
Dr Wynn Owen concluded that Mr Decke's current stance of denial and minimisation, and his elaborate justifications for high risk behaviours, indicated that little had been learned from his experience while on community supervision, or from the sex offender treatment program he had recently taken, and he was just as likely to reoffend as he was when assessed in 2017.[16] Dr Wynn Owen considered the most likely offence to be exposure, with the most likely victim a female child. There was also a risk of contact sexual offending against female children should the opportunity present.
[16] Book of Materials 3 - 973.
A neuropsychological assessment was carried out on Mr Decke in September 2019 and reported to the court on 5 December 2019.[17] The testing disclosed no cognitive dysfunction. His failure to make gains in treatment is not the result of some cognitive or learning impairment, but is related to his personality type.[18]
[17] Book of Materials 3 - 1231.
[18] ts 132.
In 2020, Dr Ben Bannister, Forensic Psychologist conducted an assessment in which he provided an overview of psychological assessments and treatment of Mr Decke since he was first declared a dangerous sexual offender in 2009. In Dr Bannister’s opinion, the most likely conclusion was that Mr Decke had achieved only negligible, unconsolidated, and inconsistent changes over an extended period.[19] Dr Bannister questioned the utility of continued treatment while Mr Decke remained in prison. He considered that Mr Decke appeared to be unable or unwilling to acknowledge the risk posed by his likely continued paedophilic interest.
[19] Book of Materials 3 - 1278.
Dr Wynn Owen assessed Mr Decke again for the purpose of the review in 2020. His opinion was largely unchanged. In particular, he believed that Mr Decke could not be relied on to manage his own risk.[20] Mr Decke had received regular therapeutic input during the period since his last review, but continued to have a range of unmet treatment needs which had been resistant to intervention. Dr Wynn Owen did not recommend further therapeutic intervention.
[20] Book of Materials 3 - 1292.
Most recently, Mr Decke has participated in treatment with Joanne Collyer, a Senior Counselling Psychologist with the Department of Justice. Despite Mr Decke's efforts to engage with the material provided in counselling, Ms Collyer identified attitudes and patterns of behaviour that were 'characterological and entrenched'. Further intervention while in custody would not achieve more.[21]
[21] Book of Materials 4 - 1455.
In summary, the other reports in evidence are consistent with the view now expressed by Dr Wynn Owen. The risk that Mr Decke will re‑offend unless subject to external constraints is high. The nature of any likely offending is serious, where the most likely victim would be a female child.
Propensity to commit serious offences in the future;
Propensity in this context refers to some identifiable characteristic of an offender, something in his makeup or personality that gives rise to an inclination or tendency to offend in a particular way, or against a particular type of victim.
Propensity may be inferred from conduct which shows a tendency to act in a particular way. Mr Decke's repeated offending between 1987 and 2002 by exposing himself - to adults as well as children - shows a propensity to act in that way. Those offences occurred regularly, apparently in times of stress, but must be balanced against the period before his next (and more serious) offence in 2005. There are no further convictions for exposure to children after 1996. He was in custody for part of the period between 1996 and 2005, and again between 2007 and 2009, but was in the community for much of that time.
I also take into account that, on his release in October 2009, Mr Decke was able to live under a supervision order until 2015, when he was returned to custody following breaches of the supervision order. There were convictions for breaches, in 2011 and 2014, but none was considered serious enough for Mr Decke to be detained. The exhibitionist behaviour was not repeated.
The most important factor is that Mr Decke has an underlying sexual deviance - paedophilia. He has obtained little benefit from treatment and has only a rudimentary understanding of what leads to the acts of wilful exposure.
I am satisfied that the propensity to offend by sexual conduct towards a female child remains. That conduct would be likely to constitute a serious offence.
Any pattern of offending behaviour;
Mr Decke committed many acts of exposure - the expert evidence has related it to periods of stress. There are only two offences of indecent conduct by sexual contact with children. There is a common factor that the child was known to him and not a stranger, but I would not characterise his behaviour as demonstrating a pattern.
The indecent assault in 1996 and the more recent indecent acts in public, while they show that Mr Decke was unable to regulate his sexual behaviour, do not repeat earlier conduct.
Mr Decke's criminal history shows only very limited offending that is not related to his sexual offending.
Efforts by Mr Decke to address the cause of his offending behaviour, participation in rehabilitation programs, and whether they have had a positive effect
Mr Decke was subject to community supervision (probation) on five occasions before he was released under a supervision order by Hall J in 2009.[22] One term of probation was cancelled for reoffending. He completed the others satisfactorily.
[22] Book of Materials 1 - 491.
Mr Decke was initially released subject to supervision in 2009, but breached conditions of the order in 2011, 2014 and 2015. The later breaches included, on two occasions, entering an area he was not permitted to enter because of the possible presence of children. On another occasion he was present at a park where a large number of children were present during an Easter egg hunt, an offence against s 557K(6) of the Criminal Code.[23]
[23] Under s 557(6), a child sex offender may not, without reasonable excuse, be in or near a public place where children are regularly present and where children are present at the time.
The nature of the breaches, and others related to monitoring and reporting, related directly to the ability of the police and Community Corrections Officers to supervise Mr Decke, to monitor his movements and his internet and social media use, and to ensure that the risk of further offending was not unacceptable.
In April 2015, Mr Decke was found in possession of a thumb drive which contained 15 images of children, 13 of which were child exploitation material. During his period under a supervision order, Mr Decke also committed offences of possession of an indecent article (indecent images of an adult woman) and committing an indecent act in public (taking 'upskirt' photographs with his phone).
While in custody in 2017, Mr Decke completed a sex offender treatment program. He was assessed to have met all program objectives. I have already referred to Dr Wynn Owen's comments in 2018 about his assessment of the limited gains made.
In summary, Mr Decke has participated in courses over many years which do not appear to have had a positive effect, at least as measured by psychiatric assessment. The court cannot measure the effect on his behaviour since he was detained in 2015.
Mr Decke appeared to make some gains in his treatment with Ms Collyer, recognising the need to manage his behaviour as a choice between that behaviour which would assist him to stay in the community, and that which would result in further imprisonment. In his assessment, however, Dr Wynn Owen found that the risk factors had not shifted as a result of treatment intervention. While Mr Decke appeared to have established a good relationship with Ms Collyer as a treating therapist, he was unable to recall the strategies he had learned with her, and was adamant that he should not be in his present situation, and is not a risk.[24]
[24] ts 125.
The risk and the need to protect the community from that risk
It is troubling that Mr Decke has been in indefinite detention for so long since the expiry of the terms of imprisonment imposed in 2016. But the questions posed by the Act relate to risk that he would offend again and how to protect the community from that risk.
On the threshold question, the psychiatric evidence is that Mr Decke remains a high risk serious offender. In particular, he remains a high risk of committing an indecent act in the presence of a child. I must weigh that evidence against the fact that the last 'contact offence' was in 2005, and the last indecent exposure offence in the presence of a child was over 25 years ago. Mr Decke is now 71 years old and is motivated to not remain in prison. But I accept the evidence of Dr Wynn Owen. The risk remains high and treatment has proved ineffective. Taking the likely age of any victim into account, the risk is unacceptable.
The remaining issue is whether, the protection of the community being paramount, that risk can be adequately managed by a supervision order or the continuing detention must be affirmed.
I accept Dr Wynn Owen's opinion that Mr Decke could be managed in the community if the right conditions were in place. One essential condition is that he must have somewhere to live that is suitable.
Mr Decke has no family or other community support which can provide a suitable place.
Community Corrections reported on four crisis accommodation services: two of them require face to face assessment in the community, a condition that Mr Decke cannot meet. One of the others excludes sexual offenders, and the fourth cannot be reserved.
Mr Decke is unlikely to obtain a place in the private market, having been in prison since 2015, with no tenancy history, earning history, or capacity to pay a bond. No premises in the private market were identified.
Many offenders in Mr Decke's position must rely on the supported accommodation provided by Uniting WA. The number of people who are subject to orders under the High Risk Serious Offenders Act far exceeds the number of places that service can offer. None is currently available, and, at the date of hearing, Mr Decke was ninth on the waiting list. The period before a place might become available is not predictable.
Some attention was given at the hearing to the possibility of accommodation at named premises that provide accommodation to people in transition from prison or confinement in a mental health facility. Dr Wynn Owen expressed concern about a temporary, group housing alternative, with new people moving in and out and significant interaction with others. He considered those arrangements were likely to increase stress for Mr Decke. The information Dr Wynn Owen had received was that Mr Decke did not manage group living well at all.[25] Further, there was no evidence before the court that a place at those premises was or would become available to Mr Decke.
[25] ts 130.
The result is that the court cannot be satisfied that the risk of further offending by Mr Decke can be adequately managed in the community. There is nowhere he can go.
I have considered whether the application might be more fairly resolved by adjourning to see if the accommodation position improves. I have done that in another case where there was a realistic prospect of a suitable place becoming available within months. There is no such realistic prospect in this matter. Any adjournment would have to be for an indefinite time.
The continuing detention order will be affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KK
Associate to the Honourable Justice Allanson
5 AUGUST 2022
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