The State of Western Australia v MBW [No 6]
[2018] WASC 72
•9 MARCH 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MBW [No 6] [2018] WASC 72
CORAM: CORBOY J
HEARD: 1 MARCH 2018
DELIVERED : 9 MARCH 2018
FILE NO/S: MCS 20 of 2007
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MBW
Respondent
Catchwords:
Dangerous Sexual Offenders Act 2006 (WA) - Whether a continuing detention order should be made after respondent contravened a supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 23
Result:
Continuing detention order made
Category: B
Representation:
Counsel:
Applicant: Mr B Meertens
Respondent: Mr R P Williamson
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Beau Hanbury, Barrister & Solicitor
Case(s) referred to in judgment(s):
[suppressed]
Briginshaw v Briginshaw (1938) 60 CLR 336
CORBOY J:
The application and the result
The respondent has a history of violent sexual offending. He was last convicted of a serious sexual offence on 1 September 2017. The offence was committed on 25 June 2016. It was committed while the respondent was subject to a supervision order (the Supervision Order) made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). The Supervision Order was made by Commissioner Sleight on 27 March 2012: [suppressed].
The respondent contravened a requirement of the Supervision Order by committing the sexual offence on 25 June 2016. He further contravened requirements of the order on that date by consuming alcohol, leaving his approved residence without his hand‑held electronic tracking device and exchanging text messages with sex workers. On 17 November 2017, he pleaded guilty to four charges made under s 40A of the DSO Act with respect to those contraventions.
The State has applied for a continuing detention order under s 23 of the DSO Act (the Contravention Application). The respondent does not oppose the Contravention Application.
I have concluded that a continuing detention order should be made for the reasons that follow.
The respondent's history of sexual offending
In March 2008, Jenkins J held that the respondent was a serious danger to the community within the meaning and for the purpose of the DSO Act. Her honour made a continuing detention order: [suppressed].
A detailed account of the respondent's sexual offending to 2008 appears in her Honour's reasons. In summary:
(a)In October 1981, the respondent pleaded guilty to one count of attempted rape of a 9‑year‑old girl. He was armed with a knife which he used to threaten the victim. He was aged 14 at the time of his conviction.
(b)In October 1985, the respondent pleaded guilty to two counts of rape and one count of attempted sodomy. The offences occurred in March 1985. The total effective sentence imposed was 9 years 4 months' imprisonment, with the respondent required to serve a minimum of 5 years before being eligible for parole.
(c)In March 1994, the respondent pleaded guilty to one count of deprivation of liberty and five counts of sexual penetration without consent while armed with a dangerous weapon. The offences occurred in June 1993 and involved multiple sexual assaults on a prostitute. The total effective sentence imposed was 7 years 10 months' imprisonment, with the respondent being made eligible for parole.
(d)In March 1994, the respondent also pleaded guilty to one count of deprivation of liberty. The offence was committed in May 1992. The circumstances in which the offence was committed strongly suggested that it was a precursor to a sexual assault. The respondent was sentenced to 12 months' imprisonment cumulative on the sentences imposed for the offences committed in June 1993.
(e)In February 1999, the respondent pleaded guilty to one count of deprivation of liberty and one count of assault. The offences occurred in August 1998. Again, the circumstances in which the offences were committed strongly suggest that they were the precursor to a sexual assault. The respondent was sentenced to a term of imprisonment of 23 months, with a parole eligibility order.
(f)In March 2001, the respondent pleaded guilty to one count of sexual penetration without consent, aggravated by the victim suffering bodily harm in addition to the sexual assault. The offences were committed on 16 May 2000 and involved a sexual and other bodily assault on a prostitute. The total effective sentence imposed was 4 years 8 months' imprisonment, with a parole eligibility order.
(g)In September 2003, the respondent was found guilty of one count of sexual penetration without consent and one count of threatening to kill. The offences occurred on 13 May 2000 and involved a sexual assault and further threatened violence against a prostitute. The respondent was sentenced to 4 years' imprisonment to be served concurrently with the sentences imposed in respect of the other offences committed in May 2000.
As mentioned, the respondent pleaded guilty in September 2017 to one count of aggravated indecent assault. He was sentenced to a term of imprisonment of 3 years 4 months to be immediately served. The sentencing judge declined to make a parole eligibility order. With backdating, the respondent will complete his sentence in October 2019.
[suppressed].
The respondent went to the victim's house early in the evening of 25 June 2016, [suppressed]. The respondent then grabbed and overpowered the victim. He pulled down her pants and underwear and touched her on the inner thighs.
The victim managed to struggle free and rushed out of the house wearing only a singlet. She got help from a neighbour and contacted the police. The respondent was found by the police hiding near the victim's house.
The respondent denied at his sentencing hearing that he had intended to have sex with the victim. However, his denial was not accepted by the sentencing judge. His Honour stated:
In all the circumstances, given also your drinking that day and your history of serious sexual offending, there is, in my view, no reasonable inference at all that could possibly support your view that you had no intention to have sex with her. The only reasonable inference on all of the evidence that's before me is that you did intend to have sex with her, whether she consented to it or not.
Fortunately she had the strength and the fortitude to stop you and to get away. But your intention, I find, beyond reasonable doubt was to have sex with the complainant (Exhibit 1, 134).
Proceedings under the DSO Act
As noted, Jenkins J found in March 2008 that the respondent was a serious danger to the community. Her Honour made a continuing detention order. The order was reviewed by Hasluck J in June 2009. His Honour declined to rescind the order: [suppressed].
The order was further reviewed by Blaxell J in July 2010. His Honour rescinded the continuing detention order and made a supervision order for five years: [suppressed].
In March 2011, the respondent was convicted of four offences under s 63 of the Community Protection (Offender Reporting) Act 2004 (WA). At around the same time, McKechnie J found that the respondent had contravened a number of the requirements of the supervision order made by Blaxell J in July 2010. The order was revoked and a continuing detention order was made: [suppressed].
The Supervision Order was made by Commissioner Sleight in March 2012. In November 2012, the respondent was convicted of two offences under s 40A of the DSO Act. That section makes it an offence to contravene a requirement of a supervision order.
In February 2013, April 2013 and March 2014 the respondent was convicted of further offences under s 40A of the DSO Act. In March 2014, he was also convicted of breaches of a suspended sentence order and an intensive supervision order.
As previously noted, in November 2017 the respondent was convicted on his plea of four charges that he had contravened a requirement of the Supervision Order.
The DSO Act
Part 2, div 4 of the DSO Act concerns contraventions of a supervision order. In particular, s 23 provides that:
(1)If the court is satisfied, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order, the court may -
(a)make an order amending the conditions of the supervision order, or extending the period for which the order is to be subject to the conditions of the supervision order, or both; or
(b)if the court is also satisfied that there is an unacceptable risk that, if an order under this paragraph were not made, the person would commit a serious sexual offence, make a continuing detention order in relation to the person; or
(c)make no order.
(2A)In considering whether it is satisfied as required in subsection (1)(b), the court must disregard the possibility that the person might temporarily be prevented from committing a serious sexual offence by imprisonment, by remand in custody or by the imposition of bail conditions.
(2)In deciding whether to make an order under subsection (1), the paramount consideration is to be the need to ensure adequate protection of the community.
The State relied on the respondent's convictions to establish that the requirements of the Supervision Order had been contravened. Section 40A(1) of the DSO Act provides that a person subject to a supervision order who, without reasonable excuse, contravenes a requirement of the order commits an offence. Section 40B(4)(d) provides that any findings of fact made by the Supreme Court in proceedings on a charge made under s 40A may be used in proceedings under pt 2 div 4 of the DSO Act. The Contravention Application was a proceeding under that part and division. However, the DSO Act does not contain a provision corresponding to s 40B(4)(d) where an offence against s 40A(1) has been tried in a court of summary jurisdiction. Accordingly, the effect of the DSO Act is that the State was required to prove in the Contravention Application the fact of the respondent's conviction and the circumstances in which his contraventions had occurred.
The State served a book of materials for the purpose of the Contravention Application that included a document containing particulars of the contraventions of the Supervision Order (pages 29 ‑ 33 of the book). The respondent did not oppose the tender of the book as an exhibit (it was marked as exhibit 1). He accepted the truth and accuracy of the matters stated in the contravention particulars. The book of materials contained other documents that were, self‑evidently, the source of the matters stated in the particulars.
The evidence
The State relied in support of the Contravention Application on the documents contained in the book of materials and a DVD containing the downloaded contents of a mobile phone used by the respondent (exhibit 2). The book of materials contained, among other things, the remarks of the sentencing judge in sentencing the respondent for the aggravated indecent assault committed on 25 June 2016; a psychological report provided by Ms Wager for the purpose of the respondent's sentencing for that offence; a performance report prepared by Ms Rathmann, Senior Community Corrections Officer, Community Offender Monitoring Unit, Department of Corrective Services; a psychological report prepared by Ms Hasson, Forensic Psychologist; and a psychiatric report prepared by Dr Wojnarowska, a forensic consultant psychiatrist. The reports of Ms Rathmann, Ms Hasson and Dr Wojnarowska were prepared for the purpose of the Contravention Application.
Dr Wojnarowska concluded that the respondent did not suffer from a major mental illness but he presented with an anti‑social personality disorder and pronounced psychopathic traits. She considered he experienced deviant arousal to violent and illicit sex. He also had a history of alcohol dependence, expressed by binge drinking.
Dr Wojnarowska considered the respondent continued to be at a high risk of sexual reoffending if not subject to a continuing detention order or a supervision order. His risk of reoffending was associated with his psychopathic traits, sexual deviance and alcohol abuse. He had made only minimal progress in past treatment. That was consistent with his psychopathic personality which meant that it was difficult for him to engage in a transparent, truthful and reliable way with a psychological counsellor. I infer from her report that, in Dr Wojnarowska's opinion, the prescription of anti‑libidinal medication would be the most effective treatment for the respondent in the community.
Dr Wojnarowska regarded the respondent's consumption of alcohol in breach of the Supervision Order to be particularly significant. There was a demonstrated association between alcohol and the respondent's sexual offending in the past. She also considered that opposition from a victim resulting in the respondent becoming angry was a trigger to sexual arousal and subsequent offending.
Dr Wojnarowska made a number of other observations about the risk of the respondent sexually reoffending. In particular, she considered the respondent lacked awareness of the risk he posed. That reflected his psychopathic personality, grandiose sense of self and self‑serving attitudes. He had placed himself in several high risk situations on 25 July 2016 – consuming alcohol; exchanging text messages with sex workers; [suppressed]; and failing to recognise that he was becoming angry and affected by alcohol before going to the victim's house early on the evening of 25 June 2016.
Dr Wojnarowska also considered the respondent had difficulty coping with stress and tended to use intimidation, manipulation and violence to control his environment. He had a history of engaging in volatile relationships, characterised by infidelity and domestic violence. However, she noted that the respondent had developed a stable relationship [suppressed]. The relationship was a significant protective factor, particularly as the respondent's partner did not condone the respondent's use of alcohol.
In her psychological report, Ms Hasson observed that the respondent had a history of engaging in deceptive and manipulative behaviour in past psychological interventions. She noted that for a period of approximately two years after the Supervision Order was made, the respondent had apparently complied with his reporting obligations and engaged well with those involved in his supervision, treatment and management. She commented:
He appeared happy and stable with balance in his life. Had he not reoffended he would have been considered to have made good progress. His offending behaviour in this instance however suggests that the longstanding issue of guardedness in disclosing risk relevant information as well as his history of concealing or purposely omitting information to avoid consequences meant that his risk to the community could not be managed. Non‑disclosure is likely a significant factor in his offending and the fact that this issue has not been able to be addressed despite an intensive individual intervention and development of a good repour with his treating therapist is cause for concern as it is knowledge of the presence of risk factors that helps protect the community. His persistent lack of candour and deceptiveness undermines the progress he had made in treatment. Ideally, one would want [MBW] to freely rapport his thoughts, feelings and behaviour connected to his offending or regarding higher risk situations, so they can be worked through, however, [MBW's] focus remains egocentric, thinking only of the consequence to himself if he discloses certain information (such as breach and possible return to prison) and not of the harm he might cause to others should he reoffend. This self‑focus is not surprising given his personality. (Exhibit 1, 270 – 271).
Determination of the application
Section 23(1) of the DSO Act requires the court to determine three questions:
(a)whether the court is satisfied on the balance of probabilities that the offender is likely to contravene, is contravening or has contravened a condition of a supervision order;
(b)if so, whether the court is also satisfied that there is an unacceptable risk that the person would commit a serious sexual offence if a continuing detention order was not made;
(c)if the court is not so satisfied, whether the court should amend or extend the existing supervision order.
The first of those questions must be determined against the respondent.
He has been convicted on his plea of four contraventions of the requirements of the Supervision Order.
The paramount consideration in determining whether to make an order under s 23(1) is the need to ensure adequate protection of the community. The onus rests on the State to establish that there is an unacceptable risk that the respondent would commit a serious sexual offence if a continuing detention order was not made. The civil standard of proof on the balance of probabilities applies but the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 must be applied given the nature of the State's application.
By not opposing the State's application, the respondent has, in effect, accepted that there is an unacceptable risk he would commit a serious sexual offence if a continuing detention order was not made (although, it is possible his consent was an acknowledgement that the outcome of the State's application is inevitable given the seriousness of his contravention of the Supervision Order). Section 23 of the DSO Act requires the court to be satisfied that a continuing detention order should be made but it would be an extraordinary result for an order not to be made where a respondent accepts that the grounds for the order have been established.
I am satisfied, applying the Briginshaw standard, that there is an unacceptable risk that the respondent would commit a serious sexual offence if a continuing detention order was not made having regard to all of the evidence presented by the State. In particular, I accept Dr Wojnarowska's opinions that:
(a)the risk of the respondent committing a serious sexual offence in the future is high;
(b)the respondent has derived little benefit from past psychological interventions due to his psychopathic personality traits and associated willingness to engage in deceptive and manipulative strategies in counselling.
I also accept Dr Wojnarowska's opinions on the causes of the respondent's risk of sexual reoffending. Understandably, her opinions reflect the circumstances of the respondent's offending, including the most recent sexual offence, as well as her expertise as a forensic psychiatrist.
Dr Wojnarowka's opinion concerning the failure of past psychological counselling to significantly ameliorate the risk of the respondent sexually reoffending is supported by Ms Hasson's report and opinions. Moreover, the respondent was involved in on‑going counselling at the time that he committed the aggravated indecent assault in June 2016. However, neither counselling nor the requirements of the Supervision Order operated as sufficient protective mechanisms to prevent the respondent from committing a serious sexual offence (nor in engaging in risky behaviour in the period immediately prior to the offence).
Dr Wojnarowska's opinions, and the most recent sexual offence committed by the respondent, strongly suggest that the factors contributing his risk of sexual offending are entrenched. They are likely to remain difficult to treat unless he is able to moderate the personality traits that condition his egocentric approach to counselling. However, he has demonstrated some capacity for control and it may be that, in the future, a combination of anti-libidinal medication, close supervision and intensive counselling could provide sufficient protection for the community. At present, the risk of the respondent committing a serious sexual offence if a continuing detention order was not made is, in my view, unacceptable.
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