The State of Western Australia v Mackay [No 2]
[2020] WASC 474
•23 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MACKAY [No 2] [2020] WASC 474
CORAM: ALLANSON J
HEARD: 1 & 10 DECEMBER 2020
DELIVERED : 23 DECEMBER 2020
FILE NO/S: SO 6 of 2020
(Formerly known as DSO 6 of 2020)
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
HERBERT WILLIAM MACKAY
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Application for a restriction order - Where respondent completed a 10 year term of imprisonment for sexual offences - Where respondent previously convicted of sexual offences against children - Whether restriction order necessary to ensure adequate protection of the community against an unacceptable risk that respondent will commit a serious offence
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Where court finds the respondent is a high risk serious offender - Where no suitable accommodation available should respondent be released - Whether supervision order could be made
Legislation:
Community Protection (Offender Reporting) Act 2004 (WA), s 9, sch 1
Dangerous Sexual Offenders Act 2006 (WA), s 17
High Risk Serious Offenders Act 2020 (WA), s 5, s 7, s 29, s 48, s 74, s 84, s 123, s 124
Mental Health Act 2014 (WA), s 4
Result:
Continuing detention order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Mr D J McKenzie |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid WA |
Case(s) referred to in decision(s):
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 58
GBT v State of Western Australia [2019] WASCA 40
Italiano v State of Western Australia [2009] WASCA 116
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Mackay [2020] WASC 288
The State of Western Australia v Rao [2019] WASC 93
Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217
ALLANSON J:
Introduction
On 3 July 2020, the State of Western Australia applied for orders pursuant to the Dangerous Sexual Offenders Act 2006 (WA) in respect of the respondent, Herbert William Mackay.
On 6 August 2020, McGrath J ordered that an application for a Division 2 order, pursuant to s 17(1) of the Dangerous Sexual Offenders Act, be heard on 1 December 2020. His Honour ordered that Mr Mackay undergo examination by two experts, Dr Gosia Wojnarowska, psychiatrist, and Ms Julie Hasson, psychologist, for the purpose of preparing reports to be used on the hearing of the application.
Mr Mackay was ordered to be detained in custody until the hearing. He would otherwise have been released on 2 September 2020.
The application commenced under the Dangerous Sexual Offenders Act continues as an application for a restriction order pursuant to pt 4 of the High Risk Serious Offenders Act 2020 (WA).[1]
[1] See High Risk Serious Offenders Act s 123, s 124(1).
In these reasons, references to legislation, unless specified otherwise, are to the provisions of the High Risk Serious Offenders Act.
Restriction Orders
The court must make a restriction order if it finds Mr Mackay is a high risk serious offender.[2] Mr Mackay is a high risk serious offender if the court finds that it 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 Mr Mackay to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.[3]
[2] Section 48.
[3] Section 7(1), s 48.
The court must have regard to the following matters set out in s 7(3):
(a)any report prepared under s 74 for the hearing of the application and the extent to which Mr Mackay cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to Mr Mackay;
(c)information indicating whether or not Mr Mackay has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by Mr Mackay;
(e)any efforts by Mr Mackay to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation program;
(f)whether or not Mr Mackay's participation in any rehabilitation program has had a positive effect on him;
(g)Mr Mackay's antecedents and criminal record;
(h)the risk that, if he were not subject to a restriction order, Mr Mackay would commit a serious offence;
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
The matters set out in paragraphs (h) and (i) are conclusions or findings based on the findings regarding the matters set out in s 7(3)(a) ‑ (g) and (j).
The term 'serious offence' is defined in s 5. Relevantly to this application, it includes an offence specified in sch1, div 1. Serious offences include the sexual offences that were the subject of the Dangerous Sexual Offenders Act, but are not confined to sexual offences.
A restriction order may be either a continuing detention order or supervision order.
The court cannot make a supervision order, and must make a detention order, unless it is satisfied, on the balance of probabilities, that Mr Mackay will substantially comply with the standard conditions of a supervision order. The onus of proving that he will substantially comply is on Mr Mackay.[4]
[4] Section 29(1), s 29(2).
Even where the court is not satisfied that it is necessary to detain Mr Mackay in custody to ensure the adequate protection of the community, in the absence of suitable accommodation into which he may be released and supervised within the community, detention may be the result.
Antecedents and criminal record
Mr Mackay is a 44‑year‑old aboriginal man, born on 29 March 1976. His criminal history includes sexual and other offending. At the time of the hearing before McGrath J, he was serving a sentence of imprisonment of 10 years 6 months, imposed in the District Court on 21 July 2011, for offences including aggravated sexual penetration of a 14 year old girl.
Because they inform the consideration of the other relevant factors, it is convenient to begin with Mr Mackay's antecedents and criminal record.
Sexual offending
Mr Mackay was convicted of sexual offending in 1994, 2000 and 2011. On each occasion the victim was a female child. I will outline the facts of the offences ‑ a more detailed description of the facts is found in the decision of McGrath J.[5]
1994
[5] The State of Western Australia v Mackay [2020] WASC 288 [13] ‑ [34].
In 1994, Mr Mackay was convicted on a plea of guilty of one offence of sexual penetration of a child under the age of 13 years. He was also convicted of other offences, including deprivation of liberty, arising out of the same incident.
Mr Mackay was 17 at the time of the offence. The victim was six.
The offences occurred in South Hedland. Mr Mackay and a co‑offender committed a burglary at the victim's home. Mr Mackay later returned alone and carried the child from the house to a nearby church ground, where he sexually assaulted her by penetrating her anus, causing what the trial judge described as a fairly severe injury.[6]
2000
[6] Book of Materials, 583.
In October 2000, Mr Mackay pleaded guilty to three charges of sexual penetration of a child under the age of 13 years, and one charge of indecent dealing with a child under the age of 13 years. The victims were aged 5 and 9, and were known to Mr Mackay. One was his cousin and the other his niece.[7] The offending occurred while Mr Mackay was looking after the children.
[7] Book of Materials, 591 ‑ 593.
The offences were constituted by:
(1)penetrating the mouth of the 9‑year‑old with his penis;
(2)penetrating the mouth of the 5‑year‑old with his penis (two charges); and
(3)rubbing his penis against the body and vagina of the 5‑year‑old.
The sexual penetration was not accompanied by force or threats but by a trick.
Mr Mackay was sentenced to a term of immediate imprisonment for 6 years.
2010
The offending in 2010 was against a 14‑year‑old girl, who was not known to Mr Mackay.[8]
[8] Book of Materials, 621 ‑ 623.
On 3 March 2010, Mr Mackay approached the victim in the street as she was walking home late at night. When the victim reached her home and was going to call out to be let in, Mr Mackay placed his hand over her mouth to prevent her calling out and threatened to kill her. The victim attempted to fight back but Mr Mackay pushed her to the ground. He then dragged the victim to a vacant lot and into a ditch where he sexually assaulted her.
Mr Mackay then took the victim around various parts of the town, ending up at a place called Deepwater Ditch where he again assaulted her. As well as threatening her physically, Mr Mackay told her that he would take her to his family because she had disrespected him.
Mr Mackay was convicted of six offences of sexual penetration, an offence of threatening to kill, and an offence of deprivation of liberty. The offences occurred over the course of several hours.
On 21 July 2011, Mr Mackay was sentenced in the District Court at Perth to a total effective term of imprisonment for 10 years and 6 months.
Other relevant offending
Mr Mackay's record of offending begins when he was 13‑years‑old, with offences in Port Hedland and then Carnarvon.
After the offences in 1994, Mr Mackay was convicted of comparatively minor offences (the exception being an aggravated burglary) between 1996 and 2000.
In 2002, Mr Mackay was given an intensive supervision order, following his conviction for burglary.
In June 2003, Mr Mackay was again sentenced to imprisonment for offences including burglary of a place used for habitation (three charges).
On 6 December 2006 and 17 April 2007, Mr Mackay was convicted of failure to comply with reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA). That Act imposes reporting obligations on offenders sentenced for a reportable offence. Relevantly, reportable offences include sexual offending against a child.[9]
[9] Community Protection (Offender Reporting) Act s 9 sch 1.
On 17 April 2007, Mr Mackay was also imprisoned for an offence of assault on his then partner.
On 18 December 2009, Mr Mackay was again convicted for failing to comply with reporting obligations under the Community Protection (Offender Reporting) Act.
On 22 July 2011, Mr Mackay was sentenced in the Magistrates Court in South Hedland to terms of imprisonment, concurrent with the sentences imposed in the District Court the day before. The sentences were for an offence of unlawful assault doing bodily harm and an offence of unlawful assault committed in February 2010. The assaults were committed with circumstances of aggravation, the victim being his then de facto partner.
Mr Mackay was also convicted on 22 July 2011, on charges of breach of a protective bail condition and another offence of failure to comply with his reporting obligations.
Evidence
In an application for a restriction order, the court must hear admissible evidence called by the State and, if an offender elects to give or call evidence, that evidence.[10] The rules of evidence apply, but are modified to permit the court to receive in evidence:
(a)any document relevant to the antecedents or criminal record of the offender; or
(b)anything relevant contained in the official transcript of any relevant proceeding against the offender; or
(c)any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against the offender; or
(d)any relevant material of the kind mentioned in s 7(3) relating to the offender.[11]
[10] Section 84(2).
[11] Section 84(4) - (5).
'Relevant proceeding' is defined in s 84(1) as a judicial proceeding for a serious offence, or another offence the court considers relevant. In the present matter, the proceedings on three occasions of sexual offending are all relevant proceedings. I do not consider that any of the other proceedings are relevant.
The State relies on the documents included in a Book of Materials. The fact that a document or report is admissible for the purposes of proceedings under the Act does not require the court to find it is acceptable and cogent evidence for the purposes of s 7(1), so as to satisfy the court to a high degree of probability that it is necessary to make a restriction order. Where opinions are expressed, for those opinions to be cogent evidence, the qualification or expertise of the author to express such an opinion cannot be assumed, but should be proved. Further, where a document or report was prepared many years ago, additional evidence may be required to relate the report to any present level of risk.
Counsel for the State submitted that, were the State required to call the authors of reports, proceedings on an application for a restriction order could take several days. Where the court is required, by the Act, to make a finding on acceptable and cogent evidence, and where the finding concerns the liberty of an individual, possibly resulting in indefinite detention, that submission is not persuasive.
The State called four witnesses:
(1)the two experts who prepared the reports required by s 74, Dr Gosia Wojnarowska, psychiatrist, and Ms Julie Hasson, a qualified psychologist;
(2)Dr Lynley Poli, a psychologist who prepared a Management Plan; and
(3)Ms Emma Cashmore, an officer of Community Corrections who prepared a Community Supervision Assessment.
The section 74 reports
By s 74:
(1)A qualified expert providing a report in relation to a subject under this section must ‑
(a)examine the subject; and
(b)prepare an independent report.
(2)The report must indicate ‑
(a)the reporter's assessment of the level of the risk that, without a restriction order, the subject will commit a serious offence; and
(b)the reasons for the reporter's assessment.
(3)The reporter must have regard to any report or information given under section 76(1).
(4)The reporter must prepare the report even if the subject does not cooperate, or does not cooperate fully, in the examination.
The Act does not require the court to accept or give any particular weight to the report of a qualified expert; the court alone is responsible for deciding whether or not the offender is a serious danger to the community and, if so, whether to make a continuing detention order or a supervision order.[12] But the Act gives an important role to expert opinion. As Buss JA said in Italiano v State of Western Australia:
… it is plain from the scheme of the Act that the Parliament has accepted and legislated on the basis that a 'psychiatrist', as defined in s 3 of the Mental Health Act 1996 (WA),[13] has, by virtue of his or her having made a special study of, or having gained and maintained special skill in the practice of, psychiatry, the expertise to examine an offender who is the subject of an application under the Act, and make an assessment of the level of 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. The statutory scheme in this respect is apparent from s 7, s 14, s 15, s 32 and s 37 of the Act, read with the definition of 'psychiatrist' in s 3 of the Mental Health Act and s 17 of that Act. Further, as Steytler P and I also noted in Woods, it is apparent, from s 37(2) of the Act, that the Parliament contemplated that the examining psychiatrists would analyse and evaluate the relevant risks and express their opinions as to the degree of risk.[14]
[12] GBT v State of Western Australia [2019] WASCA 40 [97]; Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217 [39].
[13] Now, s 4 of the Mental Health Act 2014 (WA).
[14] Italiano v State of Western Australia [2009] WASCA 116 [56]; Woods v Director of Public Prosecutions (WA) [38] ‑ [39].
The Dangerous Sexual Offenders Act was subsequently amended to provide for the provision of a s 74 report by a qualified psychologist, and that measure was retained in the new Act.
In the present case, neither expert was challenged on the assessment of risk. Counsel for Mr Mackay focussed on the likelihood that the risk could be managed in the community by appropriate conditions for supervision, so that an order for continuing detention was not required.
Both experts used Static-99R and RSVP (Risk for Sexual Violence Protocol) ‑ risk assessment tools which are commonly used in reports prepared under the Dangerous Sexual Offenders Act ‑ in assessing Mr Mackay and preparing their reports.
Both expert reports also included assessment using SARA ‑ the Spousal Assault Risk Assessment Guide. SARA is similar to RSVP and is used in the assessment and management of intimate partner violence. It is not necessary in this application to make findings on the risk of partner violence. The findings on the risk of sexual violence are sufficient for the making of a restriction order.
Further, both of the witnesses had proceeded on the incorrect premise that offences of violence against a domestic partner were serious offences under the Act. Whether the assessment tool is capable of discriminating between those violent offences which are defined as serious offences and those that are not is for another day.
Dr Wojnarowska
Dr Wojnarowska is a registered medical practitioner with a specialty in psychiatry and a subspecialty in forensic & child and adolescent psychiatry. She has 14 years' experience in forensic psychiatry and regularly gives evidence in proceedings of this nature.[15]
[15] Book of Materials, 826.
Dr Wojnarowska interviewed Mr Mackay at Casuarina Prison on 31 October and 1 November 2020. She was provided with a book of materials, which contained the materials before the court on this application but for the expert reports.
Dr Wojnarowska reported that Mr Mackay fulfils the diagnostic criteria for paedophilia non-exclusive type attracted to female children; that is, he has a sexual attraction to prepubescent children but also to adults. Mr Mackay also fulfilled diagnostic criteria for substance use disorder, not in full remission. The last of the psychiatric diagnoses was Antisocial Personality Disorder, evidenced by impulsivity, irresponsibility and disregard for the safety of himself and others.[16]
[16] Book of Materials, 839.
The diagnoses of sexual deviance and substance abuse disorder are important factors in the assessment of Mr Mackay's risk of re‑offending, and it is necessary to say something further about them.
Mr Mackay denied that he has any current sexual interest in children. When interviewed by Ms Hasson, he told her that he had not had sexual thoughts about children since approximately 2013.[17] Similarly, he told Dr Poli that his sexual interest was in females of a similar age to himself, and he was concerned that he may have given the wrong impression in his interview with Dr Wojnarowska.[18] He repeated that in his evidence at the hearing.[19]
[17] Book of Materials, 856 - 857.
[18] Book of Materials, 814 ‑ 815.
[19] ts 211 ‑ 214.
Dr Wojnarowska stated in her report that, in their interview, Mr Mackay said that he still fantasises about children and started looking at adult pornography as an attempt at distraction and diversion of his interest from children to adults.[20] In evidence at the hearing, Dr Wojnarowska said that Mr Mackay 'does struggle with acceptance of the presence of deviant sexual interest in children', but said that in his second interview with her, he was reasonably open about it.[21] Dr Wojnarowska was not challenged in her oral evidence about the diagnosis, and I accept her evidence.
[20] Book of Materials, 838.
[21] ts 53.
Paedophilia, on her evidence, is a lifelong condition. But because Mr Mackay's interest is not exclusively in children, and his sexual urges or desires can by met by appropriate partners, there is a better prognosis in terms of risk of re-offending.[22] It remains, however, an important factor in the finding as to the risk of future offending.
[22] ts 9.
There was no dispute that Mr Mackay had a problem with abuse of substances, in particular alcohol but also some use of illicit drugs. He consistently told report writers, over the years, that he would binge drink. Mr Mackay lived for a time in a desert community to avoid alcohol.[23]
[23] ts 198.
While in prison, Mr Mackay was subject to disciplinary offences arising from positive tests for drugs not prescribed to him. Most recently (on 5 October 2020, after the div 1 order under the Dangerous Sexual Offenders Act had been made), he tested positive for Buprenorphine (a synthetic opioid). He has been largely drug free for most of his 10 years in prison, but is not entirely free.
The diagnoses by Dr Wojnarowska were carried out in the context of a risk assessment, using both actuarial tools and structured clinical guides.
The assessment using the actuarial tool, Static-99R, on its own, was of little evidentiary value. The Static-99R does not measure all relevant risk factors and a person's recidivism risk may be higher or lower than that indicated.[24]
[24] Book of Materials, 840.
Dr Wojnarowska acknowledged 'issues' associated with using this tool for Australian Aboriginal offenders.[25] Those issues, as I understood the evidence, are that the Static-99R has not been validated against the Australian indigenous population.
[25] Book of Materials, 841.
The Static‑99R 'score' (as explained by Ms Hasson in her report)[26] puts Mr Mackay in a group, the members of which are more likely to be charged or convicted of a new sexual offence after five years in the community.[27] This does not assist the court in assessing the likelihood that Mr Mackay would be one of the group members charged with further offences, or one of the majority who would not. In determining whether a restriction order in relation to a particular respondent is necessary for the adequate protection of the community some way of determining the risk on a more individual basis is needed.
[26] Book of Materials, 865.
[27] Book of Materials, 841.
Dr Wojnarowska's evidence of the risk assessment she carried out by using the RSVP to arrive at a clinical judgment was of greater value.
The RSVP structures clinical assessment by reference to factors divided into five groups: sexual violence history (including chronicity of violence); psychological domain; mental disorder; social adjustment; and manageability. Within each group there are multiple factors which were recorded as present, partially present, or not present. Some of those factors were causal of sexual violence, others were described as markers for the presence of other risk factors.[28]
[28] Book of Materials, 841 ‑ 844.
The assessor using the RSVP provides a risk scenario as the basis for management.
Dr Wojnarowska's assessment in relation to individual factors was generally unchallenged in oral evidence. In summary, Mr Mackay has a history of repeated sexual offending, with an escalation in sexual violence in the last of the offences. He has the continuing mental disorders of paedophilia, and a substance use disorder. Other factors identified as present by Dr Wojnarowska ‑ problems with stress or coping, periods of feeling depressed and despondent, and problems with substance use to deal with stress and negative feelings ‑ could lead to his being disinhibited when he encountered a vulnerable person or a child.[29]
[29] ts 31, 34 ‑ 35.
Mr Mackay does not have support from intimate or other relationships. He does not have realistic long term goals or feasible release plans.
Dr Wojnarowska assessed Mr Mackay as at high risk of re‑offending if released and not subject to some restriction. Future offending would most likely be opportunistic.
Dr Wojnarowska further suggested that gradual reintegration into the community would be preferable to immediate release, but recognised that was not an option under the Act.
Dr Wojnarowska accepted that release under supervision, with support, would reduce the risk of re‑offending. She agreed that the identified risk factors could be more easily managed if Mr Mackay was in supported accommodation where he could access services such as psychological counselling, where whether he was coping could be quickly assessed, and where he was subject to frequent drug and alcohol testing.[30]
Ms Hasson
[30] ts 63 ‑ 64.
Ms Hasson holds a Masters degree in forensic psychology and is a qualified psychologist for the purposes of the Act.[31] She also regularly gives evidence in proceedings of this nature.
[31] Book of Materials, 851.
Ms Hasson interviewed Mr Mackay at Casuarina Prison on 21 and 22 October 2020. She also spoke to Ms Cashmore and Dr Poli and considered the materials which have now been put before the court.
Ms Hasson used the same tools as Dr Wojnarowska ‑ the Static‑99R and the RSVP.
Ms Hasson's use of the Static-99R is subject to the same comments as those I made in relation to its use by Dr Wojnarowska.
Ms Hasson's use of the RSVP demonstrated some variations from Dr Wojnarowska's with regard to individual factors. For example, they differed on the presence of four risk factors: diversity of sexual violence, violent ideation, psychopathic personality disorder, and whether Mr Mackay suffers from a major mental illness (depression).[32]
[32] Book of Materials, 865 ‑ 871.
Ms Hasson and Dr Wojnarowska agreed, however, on factors which, on the evidence, are critical to assessing Mr Mackay's risk of further sexual offending: the persistence and frequency of sexual violence, the underlying diagnosis of sexual deviance, the problems with substance use, and problems with stress or coping. Ms Hasson also saw the heightened risk of offending in circumstances where recognised risk factors, including inability to manage negative moods and substance abuse, could lead to Mr Mackay being more likely to act on underlying deviant sexual interests that he could usually control.[33]
Other medical, psychiatric, psychological, or other assessment
Program completion reports
[33] ts 78 ‑ 79, 96.
In 1995, Mr Mackay participated in a Pre-Release Sex Offender Unit Program at Greenough Regional Prison. He was reported to be a willing and active participant but would benefit from a structured support network and ongoing counselling on his release.[34] There is no evidence about whether either support was available when he was released, and it does not appear that either was provided.[35]
[34] Book of Materials, 589.
[35] Book of Materials, 613.
While in custody following his convictions in 2000, Mr Mackay participated in an Intensive Sex Offender Treatment Program between September 2001 and March 2002. A report on the program was included in the Book of Materials for the hearing of this application.[36]
[36] Book of Materials, 612 ‑ 618.
The report included a risk assessment based on 'actuarial factors', which I assume is reference to a Static-99R assessment, or something similar. There is no reference in the report to the limitations of that assessment tool for indigenous populations. The report prognosis was, in many ways, favourable to Mr Mackay, noting his improved level of commitment in the course of the program and more positive outlook.
The report noted, however, that Mr Mackay would be unable to attend a maintenance program due to his decision to live in Carnarvon.[37]
[37] Book of Materials, 617.
During the sentence of imprisonment imposed on 19 March 2003 (for a non-sexual offence), Mr Mackay participated in a program for Indigenous Men Managing Anger & Substance Use. A report dated 19 July 2004 was provided in the materials for the hearing.[38] It was of little relevance to the issues before the court.
2010 Pre-sentence report
[38] Book of Materials, 619 ‑ 620.
For the purposes of his sentencing on the charges in 2010, a pre‑sentence report was prepared.[39] The report included reference to Mr Mackay's previous response to supervision, noting that he had completed parole orders in 1996 and 2008, but two parole orders in 2003 and 2006 were cancelled, and two intensive supervision orders in 1999 and 2003 were also cancelled.[40] At least to some extent, Mr Mackay's failure to comply with previous orders seems to have resulted from his living in regional or remote locations.
[39] Book of Materials, 706 ‑ 713.
[40] Book of Materials, 709.
The pre-sentence report also includes factual information relevant to the evidence of Dr Wojnarowska and Ms Hasson, particularly with regard to substance use.
Mr Mackay disclosed to the report writer that he had started binge drinking when in his early teens. His alcohol consumption escalated when he went into town ‑ he would drink until he passed out and then begin again when he woke up. Mr Mackay said that he had used cannabis between the ages of 12 and 21, but stopped using it after he became paranoid. Mr Mackay had also used methamphetamine/amphetamine. There is a discrepancy between various accounts of his drug use.[41]
2010 Pre-sentence report
[41] Book of Materials, 711.
In 2011, for the purpose of his sentencing on the offences committed in 2010, Mr Mackay was assessed by Dr Sam Febbo, Consultant Psychiatrist.
Dr Febbo interviewed Mr Mackay in prison on 23 July 2011, and also reviewed documents provided to him. Those documents included a confidential psychiatric report, dated 27 September 2000, prepared by Dr Ananth S Pullela, Senior Consultant Forensic Psychiatrist, Ministry of Justice/Health Department of WA. The report of Dr Pullela was not included in the material before the court.
Dr Febbo prepared a report.[42] He said that Mr Mackay's history was consistent with his experiencing a significant depressive episode at the time of the offences.[43] He reported also episodic and severe alcohol abuse, present at the time of the offences. Dr Febbo noted significant antisocial personality traits, 'in keeping with an antisocial personality disorder'.[44]
[42] Book of Materials, 718.
[43] Book of Materials, 718.
[44] Book of Materials, 718.
Dr Febbo reported that the issue of a possible sexual deviance was raised. He stated that Mr Mackay needed to be assessed for participation in an Intensive Sex Offender Treatment Program, and said that his response to, and information from, a sex offender treatment program would be of considerable benefit in assessing risk of future offending.[45] Dr Febbo concluded that Mr Mackay had a number of risk factors in relation to future sexual violence and required the dynamic risk factors to be addressed.[46]
Propensity to commit serious offences in the future
[45] Book of Materials, 719.
[46] Book of Materials, 720.
The question of propensity is addressed in the expert reports.
Mr Mackay has been diagnosed as meeting the criteria for paedophilia, non-exclusive type attracted to female children.[47] On two occasions, he has committed sexual acts on very young female children. It is more difficult to assess the most recent offences committed in 2010. The victim on that occasion was 14‑years‑old and there is no information about her appearance, other than in the Statement of Material Facts where she is described as slim and 164 cm tall. The earlier victims were prepubescent; the later victim is adolescent.
[47] Book of Materials, Dr Wojnarowska's report, 839.
The circumstances surrounding each offence were different in many respects. There are, however, underlying similarities.
Dr Wojnarowska and Ms Hasson, as part of the RSVP assessment, each identified 'potential risk scenarios'. Those scenarios identify features of the earlier sexual offending which might be repeated in any future offences. Mr Mackay offended opportunistically when depressed and feeling alienated, and when his conduct was further disinhibited by the use of alcohol or drugs. He has a sexual interest in female children, and has demonstrated a propensity to act on that interest in offending against very young and vulnerable children. He has also exhibited a degree of sexual violence in two of the offences. I find that Mr Mackay, unless subject to some further supervision and treatment, currently has the propensity to commit serious offences in the future.
Each of the experts also addressed the risk of reoffending by a violent offence against a partner in an intimate relationship. Neither addressed, specifically, the risk of committing a serious offence as defined in the Act. Although Mr Mackay has a history of violent offences against domestic partners, he has no previous convictions for a serious offence of that kind. There is, of course, the possibility with any violent offence that it would result in harm that makes it a serious offence. But Mr Mackay has not in the past demonstrated a propensity to do serious harm to a domestic partner.
I make that finding, despite Dr Wojnarowska's reference to Mr Mackay reporting to her that he had committed an offence in which he broke his partner's jaw.[48] There is no offence of that kind recorded in his criminal record. The only evidence is Mr Mackay's self-report to Dr Wojnarowska, and he may not have been the most reliable reporter.
Is there any pattern of offending behaviour
[48] Book of Materials, 836 and ts 65.
All of Mr Mackay's offences are against female children. Two of the incidents involved abducting the child.
Mr Mackay's offences in 2000 and 2010 followed days of excessive use of alcohol. In both cases, the offending was also preceded by arguments with his partner or family, and a feeling that others were colluding against him.[49] Mr Mackay reported negative attitudes, feeling that he had no purpose in life, and did not care about himself or anyone else, in the period preceding his offending.[50]
[49] Book of Materials, 615.
[50] Book of Materials, 615 ‑ 616.
The expert evidence is consistent with that being the pattern of his offending, and the most likely circumstances in which a future offence would be committed.
Addressing the cause or causes of the offending behaviour, including participation in rehabilitation programs; whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender
In July 2011, Mr Mackay was assessed for treatment for sex offending as having highest risk, need and motivation, and recommended for an intensive sex offender program.[51] During the nine years he spent in custody from 2011, Mr Mackay did not participate in such a program.
[51] Book of Materials, 756.
Mr Mackay completed a Pathways program for offenders with co‑occurring problems of alcohol or drug abuse and other criminal conduct.[52] The program was conducted over 47 sessions between October 2015 and February 2016. The completion report notes that the link between alcohol and violent offences was explored, but not specifically sexual offences.[53]
[52] Book of Materials, 780 ‑ 788.
[53] Book of Materials, 786.
Between July 2016 and September 2016, Mr Mackay participated in a Think First Cognitive Skills (Sex Offender) Program.[54] The program appears to have been directed to treatment needs relating to victim empathy, impulsivity, consequential thinking and goal setting.[55] He was recorded as making gains in managing his emotions and in goal setting, but with outstanding needs in other areas.[56]
[54] Book of Materials, 789 ‑ 794.
[55] Book of Materials, 790.
[56] Book of Materials, 792 ‑ 793.
Finally, between August and November 2018, Mr Mackay participated in a program addressing family violence offending for Aboriginal men, called Not Our Way.[57]
[57] Book of Materials, 802 - 808.
Although a Parole Assessment Report in July 2018 stated that Mr Mackay was wait-listed for inclusion in a Sex Offenders Treatment Program in early 2019,[58] it appears that he did not participate in it. There is no evidence about why he did not. Mr Mackay is recorded as having requested that he be denied parole as he wished to complete his remaining program.[59]
[58] Book of Materials, 797.
[59] Book of Materials, 801.
Other than the cognitive skills program, it does not appear that Mr Mackay participated, or was offered the chance to participate, in any other sex offender treatment program during the 10 years of his current sentence.
None of the authors of the reports which I have summarised was called to testify at the hearing. With the exception of Dr Febbo, a psychologist who signed the Sex Offender Program report in 2000, and a psychologist who was one of four signatories to the Think First Report in 2016, the authors do not generally disclose their qualifications or expertise to give evidence about the opinions they have expressed.
It is established law that the opinion of an expert is admissible evidence as to the truth of a fact. But the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study, or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded.[60]
[60] See Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 [35] - [37]; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 [85].
The High Risk Serious Offenders Act makes the reports referred to in s 7(3)(b) admissible. But the Act also requires the court to be satisfied to a high degree of probability on acceptable and cogent evidence. It is difficult to assess the weight that can be given to the opinions expressed in the various reports. I have relied on the experts who appeared in the application. In the present matter, their evidence was sufficient.
The high risk serious offender management plan
For the purposes of these proceedings, a report was prepared by Dr Lynley Poli, a Senior Forensic Psychologist at the Department of Justice.[61]
[61] Book of Materials, 813 - 824.
Dr Poli interviewed Mr Mackay at Casuarina Prison on 28 October 2020 and by telephone on 29 October and 3 November 2020. Dr Poli set out in detail the information provided to her by Mr Mackay in interview.
Dr Poli assessed Mr Mackay using a sexual violence risk assessment tool, the Violence Risk Scale-Sexual Offence Version. The aim of the assessment was to identify outstanding treatment targets that may warrant further intervention or the development of management strategies. Dr Poli identified the following as the most prominent risk factors in relation to Mr Mackay:
(1)an admitted deviant sexual preference for young girls which Mr Mackay was seeking to manage within the prison environment but for which he may benefit from engaging in psychological intervention;
(2)a high libido which contributed to sexual offending;
(3)cognitive distortions in apportioning blame to the victim;
(4)a history of engaging in aggressive behaviour in interpersonal interactions;
(5)negative emotional states (for example, anger, loneliness, suicidal ideation, fear and revenge) before each of his sexual offences, to which he had responded by self-medicating with substances which disinhibited his behaviour;
(6)inability to identify specific triggers for a range of high risk situations which may precipitate sexual offending;
(7)an extensive substance use history, including some offending while in prison;
(8)an extremely limited support network, with lack of suitable accommodation, limited access to psychological intervention, substance use counselling and other support services, proximity to alcohol and potential victims, and poorly planned employment;
(9)the lack of a comprehensive and detailed release plan to support his reintegration into the community;
(10)Mr Mackay did not yet have developed strategies to manage high-risk situations - on all occasions, Mr Mackay's offending had followed a cycle that included the presence of negative emotional states, significant substance use, negative attitudes, a negative life event, further substance use, and deviant sexual fantasies in the presence of a victim;
(11)a history of engaging in impulsive behaviour;
(12)a history of poor compliance with community supervision;
(13)variable responses to treatment over time, although more recent involvement in treatment programs had been positive; and
(14)a history of feeling lonely and not fitting in with others, and the lack of relationship skills to assist him in forming an intimate relationship.[62]
[62] Book of Materials, 820 ‑ 822.
Dr Poli also assessed Mr Mackay's violent offending behaviour and intimate partner violence using a Violence Risk Scale. The Violence Risk Scale is a tool which has considerable overlap with the Violence Risk Scale-Sexual Offence Version. Relevant additional factors reported by Dr Poli were:
(1)a history of engaging in behaviour that indicated a lack of respect for the law, adherence to rules, and the rights of others;
(2)a poor work history; cognitive distortions, in minimising the level of violence he committed in his relationships and an inability to describe effective strategies to manage conflict or prevent violence; and
(3)a history of depression, with negative mood states linked to his use of substances, which was strongly linked to his violent offending.[63]
[63] Book of Materials, 822 ‑ 823.
In summary, despite his completion of several treatment programs and apparent gains from these programs, Dr Poli reported that several treatment needs remained.[64] She reported:
In the event that Mr Mackay has made subject to a Continuing Detention Restriction Order or a Community Supervision Restriction Order, he will be allocated a psychologist from the Department of Justice (DOJ) who will oversee his intervention needs and work with the Community Offender Monitoring Unit (COMU) regarding the management of his risk.
Further involvement in group treatment programs is not recommended. Instead, it is recommended that Mr Mackay engage in individual psychological counselling as an individualised approach will allow a more targeted intervention to be implemented that is specific to his needs. This intervention should address the outstanding treatment needs identified in this report as well as be flexible to other needs as they arise.
…
If Mr Mackay remains in the metropolitan area it is expected that he would participate in individual psychological intervention in person and a prisoner in the community. In the event Mr Mackay is placed in a regional area, individual intervention would likely take place via electronic means (video link or Skype services) at an appropriate facility. The frequency of intervention sessions will be determined by the treating psychologist.[65]
[64] Book of Materials, 823.
[65] Book of Materials, 823 ‑ 824.
Dr Poli's opinion was consistent with those expressed by Dr Wojnarowska and Ms Hasson.
The Community Supervision Assessment
A report on community supervision was prepared by Ms Emma Cashmore.[66] Ms Cashmore appeared as a witness at trial.
[66] Book of Materials, 876 ‑ 897.
Ms Cashmore's report, and much of her oral evidence, addressed the suitability of proposed accommodation with Mr Mackay's brother in Marble Bar. It is not necessary to discuss that proposed accommodation in any detail, as Mr Mackay does not now wish to follow through with it. It is sufficient to say that the proposed address was unsuitable due to the remoteness of the location and the absence of necessary facilities, including the ability to undertake forensic urinalysis testing for alcohol or other drugs.
An alternative proposal for Mr Mackay to go to his mother's house in Carnarvon is not now pursued. It was, in any event, an unsuitable location.
Accommodation in the metropolitan area is not currently available. Uniting WA, which provides a supported accommodation program, has commenced engagement with Mr Mackay but requires a minimum period of engagement of six months with participants in custody before offering accommodation and support in the community. The engagement did not begin until October 2020 and the minimum period will not be completed until 8 April 2021.[67]
[67] ts 155.
Accommodation under the Uniting WA program is also subject to availability and, Ms Cashmore reports, there is currently no accommodation free.[68]
[68] ts 138.
None of the other options investigated identified any suitable address.
Consideration
On the evidence presented, I am satisfied that it is necessary to make a restriction order in relation to Mr Mackay to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.
I accept the evidence of Dr Wojnarowska that Mr Mackay has a continuing sexual interest in female children. His propensity to act on that interest is proven by his past conduct, and a risk that he will in the future act in that way when disinhibited by depression or alienation, coupled with intoxication, has been proved.
I find that Mr Mackay has unmet treatment needs, and needs further support or intervention if he is not to present a high risk of further sexual offending. The potential harm that would result from further offending is very serious having regard to his previous offences; the violence used in the offences of 1994 and 2010; and the underlying sexual interest in female children which was causative of the offences. The risk of further offending is currently unacceptable.
The measures which Dr Poli recommends were not implemented during Mr Mackay's long term of imprisonment which he has now completed. Despite being recommended for an Intensive Sex Offender program soon after he was sentenced in 2011,[69] and his willingness to complete one, he has not participated in any such program during his sentence.
[69] Book of Materials, 756.
The particular intervention that Dr Poli recommends appears to still be only available after an offender has completed his sentence and been found to be a high risk serious offender. The policy which dictates this result has previously been commented on in this court. In The State of Western Australia v Rao, Quinlan CJ said:
According to the evidence, until a person is made the subject of a Division 2 order,[70] they are not eligible for the services of the Department's Forensic Psychology Service. At the same time, as was the evidence in this case, the lack of such service may be a central consideration in relation to whether the person is detained in custody or released under supervision. … this Catch-22 is neither in the interests of Mr Rao nor, as is the paramount consideration under the Act, the interests of the community.[71]
[70] Now termed a restriction order.
[71] The State of Western Australia v Rao [2019] WASC 93 [14].
In paragraph [137] of his reasons, his Honour said:
It is, in my view, in the interests of the community, and its protection from offending, that an offender with known treatment needs have those treatment needs addressed before consideration is given to their release under supervision not, as is the case, afterwards. Logically, it might also be thought that the benefits of such treatment might be manifest the sooner the treatment commences. It is not in the interests of the community that the risks of a person such as Mr Rao should stagnate, and potentially worsen, as a consequence of a lack of treatment.[72]
[72] The State of Western Australia v Rao [137].
Part of [137] is quoted in the written submissions of the State in support of the argument that Mr Mackay should not be released under supervision until his treatment needs have been met. The submission reflects a misunderstanding of the clear intent of his Honour's judgment ‑ that it is not in the interests of the community that services are not made available to offenders who have known treatment needs, and are known to be likely to be subject to a restriction order, until after a restriction order is made.
Mr Mackay is an Aboriginal man from the Pilbara. He has been incarcerated for 10 years. He will need support in the community if he is not to find himself in the same circumstances which led to his earlier offending.
The release of Mr Mackay is not possible where there is no suitable accommodation into which he can go. I refer to the observations of Hall J in State of Western Australia v Corbett [No 5], where his Honour said:
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 a supervision order is presently a viable option.[73]
[73] State of Western Australia v Corbett [No 5] [2017] WASC 115 [80].
I have, this month, heard another application under the Act where the same issue has emerged. If the volume of applications filed under the High Risk Serious Offenders Act since its proclamation is an indication of the likely demand, the scarcity of accommodation in the metropolitan area will be a critical factor.
If the court finds a person is a high risk serious offender, it must make a restriction order.[74] If it cannot make a supervision order, the court must order continuing detention. Once a detention order has been made it can only be reviewed, other than in exceptional circumstances, on the first review after one year, and then every two years.[75] Persons who have served their sentence and are otherwise suitable for supervised release, but who cannot obtain suitable accommodation, will be detained indefinitely.
[74] Section 48(1).
[75] Section 64(2), s 65.
Conclusion
I accept the opinion of each of the experts that there is a high risk that Mr Mackay will re-offend while the factors underlying his propensity to commit such offences are untreated. The nature and potential consequences of the offending are so serious that the risk is unacceptable.
Necessary protections are not in place ‑ Mr Mackay has unmet treatment needs, no realistic plans for where he would live or what he would do on release, and no support network through family or otherwise.
There is currently no feasible option for supervised release. No accommodation is currently available in the metropolitan area, and there is no reasonable prospect of it becoming available in the near future.
It is not necessary to make any findings on whether Mr Mackay has shown that, despite his previous failures while under orders requiring supervision and reporting, he would substantially comply with the standard conditions of a supervision order. Mr Mackay's situation may be different, in particular he may have had a period of engagement with a counsellor, when the question of his release is again considered on review.
The court is required by s 48 to make a continuing detention order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson23 DECEMBER 2020
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