The State of Western Australia v Dunne - [2021] WASC 363

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DUNNE [2021] WASC 363
CORAM:   QUINLAN CJ
HEARD:   22 OCTOBER 2021
DELIVERED          :   22 OCTOBER 2021
PUBLISHED           :   25 OCTOBER 2021
FILE NO/S:   SO 1 of 2013
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

PETER LEWIS DUNNE
Respondent

Catchwords:

Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether interim supervision order is desirable – Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Orders pursuant to s 46 made
Interim supervision order made

Category: B

Representation:

Counsel:

Applicant	:	F M Allen
Respondent	:	D J McKenzie

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	David McKenzie Legal Pty Ltd

Cases referred to in decision:

Director of Public Prosecution (WA) v Dunne [2013] WASC 359
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65

QUINLAN CJ:

(This judgment was delivered extemporaneously on 22 October 2021 and has been edited from the transcript.)

Introduction

Peter Lewis Dunne has been subject to a supervision order made under the former Dangerous Sexual Offenders Act 2006 (WA) since 27 September 2013. The supervision order was made by Jenkins J.[1]
[1] See Director of Public Prosecution (WA) v Dunne [2013] WASC 359.
The State of Western Australia now applies for a restriction order, namely a supervision order, in respect of Mr Dunne, under the High Risk Serious Offenders Act 2020 (WA) (the Act). While it is a new application under the Act, what the State, in effect, seeks is a continuation of the supervision order made by Jenkins J. On 7 September this year, Fiannaca J continued the supervision order under the Act pending the preliminary hearing of the application, which was listed for today.
The preliminary hearing came before me today.
The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the Court might find that Mr Dunne is a high risk serious offender within the meaning of the Act.[2]
[2] See s 46(1) of the Act.
If I am so satisfied the State seeks interim orders, including orders that:
(a)Mr Dunne undergo examination by a psychiatrist and psychologist; and
(b)the supervision order currently in place continue to apply until the final determination of the application.
Mr Dunne's counsel accepted that I can be satisfied that the Court might find that Mr Dunne is a high risk serious offender, and that the supervision order that Mr Dunne is currently subject to should continue as an interim supervision order under the Act, pending the final determination of the application.

The law

As noted above, pursuant to s 46(1) of the Act, the main purpose of the preliminary hearing is to decide whether the Court is satisfied that there are reasonable grounds for believing that the Court might find that Mr Dunne is a high risk serious offender.
A 'high risk serious offender' is a person in relation to whom the Court is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the person in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
A 'serious offence' within the meaning of the Act, relevantly, includes sexual penetration without consent and a sexual offence against a child of, or over, 13 years and under 16 years.[3]
[3] The Act, s 5.
While the definition of 'high risk serious offender' sets a relatively high bar for the imposition of a restriction order (in the sense of requiring proof to a high degree of probability), s 46(1) of the Act sets a low threshold for the purposes of a preliminary hearing. I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[4]
[4] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).

The evidence

In support of its application, the State relies upon an affidavit of Kathryn Emma Ellson affirmed on 18 August 2021 which contains Mr Dunne's criminal history and previous reports.
The evidence reveals that Mr Dunne has history of sexual offending dating back to 1988, although he was not convicted of a sexual offence until 1998.
In approximately April or May of 1988, Mr Dunne was babysitting his nephew, CSC, who was 10 years old. At some point during the day, he told CSC to go to the bedroom, undress and lay face down on the bed. Mr Dunne then got on top of CSC and penetrated his anus with his penis. Mr Dunne was not convicted of this offence until 4 August 2006.[5]
[5] Sentencing Remarks of McCann DCJ (Affidavit of Ms Ellson, 77 - 78).
On various dates between August 1994 and September 1997, Mr Dunne sexually offended against another of his nephews, KTD. KTD was 14 years old at the time that the offending commenced. The offending against KTD followed the same routine on each occasion. Mr Dunne would masturbate KTD and then perform fellatio on KTD before laying on top of KTD and rubbing his penis against KTD's body until he ejaculated. On a number of occasions Mr Dunne's sexual abuse of KTD was accompanied with threats that he would kill KTD or by physical abuse (such as strangulation and squeezing KTD's testicles).[6]
[6] Sentencing Remarks of Hammond CJDC (Affidavit of Ms Ellson, 66 - 67).
Mr Dunne was convicted of these offences on 13 March 1998 and sentenced to a total effective sentence of 10 years imprisonment.
In December 2005, after the parole period for his previous sentences had expired, Mr Dunne committed a sexual offence against MRH. MRH was then aged 14 years and had a learning disability. Mr Dunne drove MRH to an abandoned building, telling him that he had arranged a girl similar in age to MRH to have sex with him. Mr Dunne blindfolded MRH, masturbated his penis with his hand and then performed fellatio on him, until MRH realised that it was Mr Dunne. After a struggle, Mr Dunne pushed MRH to the ground and climbed on top of him before MRH broke free and armed himself with a glass bottle. Mr Dunne then allowed MRH to dress and drove him back near to his home.[7]
[7] Sentencing Remarks of McCann DCJ (Affidavit of Ms Ellson, 78 - 79).
Mr Dunne was convicted of this offence at the same time as the 1988 offending, on 4 August 2006, and sentenced to 7 years and 6 months imprisonment.
The sentence for Mr Dunne's most recent period of imprisonment expired on 4 June 2013. As I have already noted, on 27 September 2013 Mr Dunne was placed on an 8‑year supervision order under the Dangerous Sexual Offenders Act 2006 (WA).
The evidence shows that Mr Dunne grew up in a loving family. He was born in Western Australia and is the youngest of five siblings, after his younger brother tragically drowned in their youth. Not surprisingly, given the familial relationship to his victims, Mr Dunne no longer has a relationship with his siblings. His father died a few years ago, following complications related to emphysema. He was unable to attend his father's funeral as a result of the presence of his victims.[8] The evidence before me, however, indicates that Mr Dunne is now caring for his invalid mother.
[8] Report of Dr Febbo dated 30 May 2013 (Affidavit of Ms Ellson, 122).
Ms Ellson's affidavit annexes three psychiatric reports and a psychological report. Two of the psychiatric reports date from 2013, when the initial application was brought under the Dangerous Sexual Offenders Act 2006 (WA). The other two reports date from 2020, when the State was considering bringing this application.
A psychiatric report prepared by Dr Febbo in 2013 noted that Mr Dunne self-reported experiencing difficulty about his sexuality at a young age.[9]
[9] Report of Dr Febbo dated 30 May 2013 (Affidavit of Ms Ellson, 123).
Mr Dunne reported being sexually abused as a young boy on a school camp by a female teacher, when he was about 14 years old. He first reported that alleged abuse to his sister when he was in his early twenties, about 10 years after the abuse allegedly occurred.[10]
[10] Report of Dr Febbo dated 30 May 2013 (Affidavit of Ms Ellson, 120).
Mr Dunne had maintained a relatively stable employment history both before and after his prison sentence, including significant periods of employment with the same employer.[11]
[11] Report of Dr Febbo dated 30 May 2013 (Affidavit of Ms Ellson, 123).
Dr Febbo reported that Mr Dunne had an intellectual disability and attended a school for students with special needs until the age of 16. He remained illiterate. Other references in Dr Febbo's report record that 'Mr Dunne suffers from significant cognitive impairment.'[12]
[12] Report of Dr Febbo dated 30 May 2013 (Affidavit of Ms Ellson, 107).
Dr Febbo diagnosed Mr Dunne with the clinical disorder, paedophilia.[13]
[13] Report of Dr Febbo dated 30 May 2013 (Affidavit of Ms Ellson, 124).
Dr Febbo reported that Mr Dunne's STATIC‑99 score placed him in the 'high risk category' for reoffending and his HCR‑20 score placed him at 'significant risk of future violence'.
In concluding his report Dr Febbo observed that:[14]
[T]here are three particularly important factors that are significant in the offending.
First, it is noted that Mr Dunne's sexual deviancy is well entrenched, intense, and persistent. Notwithstanding Mr Dunne's history that there has been improvement in this area it is my view that this is unlikely. The second factor is that, whilst Mr Dunne's cognitive impairment has not limited some aspects of his behaviour such as his ability to offend and to work, it appears that this factor has limited Mr Dunne's ability to obtain a benefit from the treatment modalities made available to him to date… thirdly, the circumstances of the offending including the frequent and persistent nature of the offending against his second victim, suggests that there is little capacity for victim empathy. It is unclear as to the significant factors in Mr Dunne's childhood and psychosexual development that predisposed him towards offending in adulthood. However, the fact that the family did not pursue the first offence in an appropriate manner, allowing continuing contact with his nephews, suggests that attitudes that support or condone sexual violence are also significantly entrenched.
In my opinion, Mr Dunne is currently at high risk of committing a serious sexual offence if not subject to a continuing detention or supervision order.
[14] Report of Dr Febbo dated 30 May 2013 (Affidavit of Ms Ellson, 134).
Dr Bryan Tanney also prepared a psychiatric report in 2013. Dr Tanney put Mr Dunne in the 'moderate‑high risk of serious sexual reoffending' using the STATIC-99 and RSVP measures.[15]
[15] Report of Dr Tanney dated 16 May 2013 (Affidavit of Ms Ellson, 142, 148).
Dr Wynn Owen carried out a psychiatric review of Mr Dunne in late 2019 to 2020 during the currency of the 8‑year supervision order. Dr Wynn Owen's report noted that the risk factors that increased the likelihood of reoffending by Mr Dunne remained, including the 'chronicity of the offending', 'the use of physical coercion' and the mild intellectual disability from which Mr Dunne suffers.
In relation to Mr Dunne's sexual deviance, Dr Wynn Owen's report concluded that it was present as a static risk factor:[16]
Sexual deviance is present as a static risk factor for Mr Dunne, he reports very little change in his sexual thinking notwithstanding more than six years of hormonal anti-libidinal therapy. From his self‑report the antilibidinal medication has had a noticeable and ongoing effect on his physiological sexual function but he reports that there was no noticeable effect on his sexual thinking.
[16] Report of Dr Wynn Owen dated 18 February 2020 (Affidavit of Ms Ellson, 163).
In relation to mitigating factors, Dr Wynn Owen stated:[17]
The dynamic factors, most amenable to risk mitigation strategies, include lack of self‑awareness and problems with intimate and interpersonal relationships.
Mr Dunne's self‑awareness has been addressed through one to one therapy, he currently demonstrates awareness of his risk to others and an ongoing need for the assistance of others in remaining offence free. He has also addressed social isolation/interpersonal issues, he reports that he has no interest in a relationship but has enjoyed the support and company of others through the gay men's group he attends regularly.
Mr Dunne's current role as carer for his mother is a form of employment and, as such, is a protective factor likely to reduce the risk of future offending while the employment is maintained. (I note that living with his mother also serves to fulfill some of Mr Dunne's interpersonal and intimacy needs further addressing his previously identified problems with interpersonal relationship (sic)).
[17] Report of Dr Wynn Owen dated 18 February 2020 (Affidavit of Ms Ellson, 163 ‑ 164).
Dr Wynn Owen concluded that:[18]
Mr Dunne's risk of future sexual reoffending has reduced since his release in 2013. It is apparent that he engaged well with psychological intervention and he is currently able to describe high risk situations and strategies to manage his risk indicating retained learning.
[18] Report of Dr Wynn Owen dated 18 February 2020 (Affidavit of Ms Ellson, 165).
A psychological report by Ms Korda dated 10 September 2020 similarly noted the progress that Mr Dunne has made while on supervision, stating:[19]
Mr Dunne has resided in the community for almost seven years and appears to live a relatively stable lifestyle. There is little indication that he has placed himself in risky situations, engaged in significant rule violations, or consistently expressed a defiant and oppositional attitude towards authority figures during his time on his HRSOSO. He has been characterised as generally cooperative and collaborative with staff involved in his supervision, treatment and management, and has taken active steps to integrate into the community through acquiring stable accommodation, engaging in extensive education, and slowly increasing his social outlets.
[19] Report of Ms Korda dated 10 September 2020 (Affidavit of Ms Ellson, 177).
Ms Korda assessed Mr Dunne's risk using the Static-99R measure as being 'well above average risk' and noted that his ongoing risk factors are: intimacy deficits, deviant sexual preferences, emotional identification with children, general feelings of social rejection and loneliness and using sexualised behaviour as a coping mechanism.[20]
[20] Report of Ms Korda dated 10 September 2020 (Affidavit of Ms Ellson, 181).

Assessment

I am satisfied that there are reasonable grounds to believe that a court might find Mr Dunne to be a high risk serious offender.
My reasons are as follows.
Mr Dunne has a clear history of sexual offending. The evidence indicates a pattern of sexual offending and sexually deviant thought patterns.
It must be recognised that Mr Dunne has remained offence free and has been generally compliant with the supervision order made by Jenkins J. That is to his credit and bodes well for him, and for the community's safety, into the future. In that regard, Mr Dunne has also undergone rehabilitative treatment to address his offending behaviour.
Nevertheless, Mr Dunne's history of sexually deviant thoughts and behaviours, together with the most recent reports, indicate that he still remains at risk of sexual reoffending and requires further supervision and monitoring to reduce that risk.
I am bolstered in that view by the caveat in Dr Wynn Owen's report that his assessment that Mr Dunne is at moderate risk of reoffending was 'based on the assumption that current levels of supervision and monitoring will continue.'[21]
[21] Report of Dr Wynn Owen dated 18 February 2020 (Affidavit of Ms Ellson, 165).
Similarly, Ms Korda noted that 'despite his confidence, Mr Dunne's capacity to self‑manage and avoid reoffence in the community setting outside of the stringent constraints and support of a [supervision order] remains untested.' In that regard, Ms Korda observed that 'Mr Dunne continued to deny the more serious elements of, and level of aggression used in, his sexual offending behaviour.' This was all in the context of the recommendation that 'his libido should continue to be monitored by supervising staff into the future, particularly as he provided contradictory information regarding his sexual thoughts during a recent psychiatric assessment.'[22]
[22] Report of Ms Korda dated 10 September 2020 (Affidavit of Ms Ellson, 177).
Further, Ms Korda stated:[23]
While Mr Dunne appears to currently live a relatively stable and predictable lifestyle with an adequate personal support network, there is significant concern about his capacity to cope in the event that his mother passes away, particularly in the absence of the structure and monitoring provided by a [supervision order].
[23] Report of Ms Korda dated 10 September 2020 (Affidavit of Ms Ellson, 181).
As I noted above, Mr Dunne is currently caring for his mother, which according to the reports provides him some support for his interpersonal needs.
On the basis of Mr Dunne's offending history and his continuing need to have his behaviour monitored, I am satisfied that there are reasonable grounds to believe that a court might find that he is a high risk serious offender. I will therefore make orders for the hearing of the restriction order application and for Mr Dunne to be examined by a psychiatrist and qualified psychologist for the purposes of preparing reports to be used at that hearing.

Interim supervision order

In the meantime, the State submits, and Mr Dunne's counsel accepts, that I should extend the present supervision order pending the determination of the restriction order application; that is, the State asks that I make an interim supervision order pursuant to s 58(3) of the Act, in the same terms as the supervision order made by Jenkins J.
I am satisfied that it is necessary for the protection of the community for Mr Dunne to be subject to an interim supervision order pending the determination of these proceedings.
At this present point in time, in my view, stability for Mr Dunne is essential. While Mr Dunne is being assessed under the Act and pending the restriction order application, it is in his interests and in the interests of the community that he continue to be supervised.
For those reasons, I order that Mr Dunne be subject to an interim supervision order until the completion of the restriction order hearing, and I will otherwise make orders for the hearing of the restriction order application.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Research Associate to the Honourable Chief Justice Quinlan
25 OCTOBER 2021