The State of Western Australia v MGD
[2018] WASC 345
•14 NOVEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MGD [2018] WASC 345
CORAM: DERRICK J
HEARD: 14 NOVEMBER 2018
DELIVERED : 14 NOVEMBER 2018
FILE NO/S: DSO 4 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MGD
Respondent
Catchwords:
Dangerous Sexual Offenders Act - Preliminary hearing - Whether reasonable grounds that an order might be made
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Application granted
Orders sought by applicant made
Category: B
Representation:
Counsel:
| Applicant | : | Ms H K Watson |
| Respondent | : | Dr N R Barber |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | N R Barber Legal |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Dodd [2015] WASC 249
Director of Public Prosecutions (WA) v Free [2010] WASC 255
DERRICK J:
Introduction
On 8 September 2009 the respondent was convicted on his pleas of guilty of 16 offences of indecently dealing with a child under the age of 13, one offence of procuring a child under the age of 13 to commit an indecent act and four offences of sexual penetration of a child under the age of 13. He was sentenced to a total of 10 years imprisonment. He was made eligible for release on parole.
On 13 April 2010 the respondent was convicted on his pleas of guilty of two offences of indecently dealing with a child under 13. He was sentenced to a total of 6 months imprisonment. The 6 month term was ordered to be served concurrently with the 10 year term imposed on 8 September 2009.
The respondent became eligible for release on parole on 3 March 2017. However, he was denied parole at his own request. The respondent's earliest date for release is 24 March 2019.
The applicant applies pursuant to s 8(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) for orders under s 14 and s 17(1) of the Act. The application is supported by an affidavit affirmed by Ms Heidi Watson, a lawyer employed by the Office of the Director of Public Prosecutions for Western Australia, on 13 September 2018.
All 23 of the offences for which the respondent is currently serving his term of imprisonment are 'serious sexual offences' as defined in s 3 of the Act. Accordingly, the threshold for the making of the application under s 8 is met.
At this stage of the proceedings, and in accordance with s 11 of the Act, the applicant is only seeking an order under s 14 of the Act. Accordingly, the hearing that has taken place before me is a preliminary hearing conducted pursuant to s 14(1).
The application for an order under s 14 is not opposed by the respondent.
The law
Section 14(1) of the Act provides as follows:
At a preliminary hearing, if the court is satisfied that there are reasonable grounds for believing that the court might, under section 7(1), find that the offender is a serious danger to the community, the proper officer of the court must, subject to subsection (2A), fix a day for the hearing of the application for a Division 2 order.
The main purpose of a preliminary hearing conducted pursuant to s 14(1) is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community.[1] In other words, the main purpose of the preliminary hearing is to determine whether the court is satisfied that there are reasonable grounds for believing that the court might find that there is an unacceptable risk that if the offender is not subject to a continuing detention order or a supervision order he would commit a serious sexual offence.[2] If the court is so satisfied it must order that the offender undergo examinations by two qualified experts named by the court, at least one of whom is to be a psychiatrist, for the purposes of preparing reports in accordance with s 37 of the Act to be used on the hearing of the application for the div 2 order.[3]
[1] Act, s 7(3).
[2] Act, s 7(1).
[3] Act, s 14(2)(a).
In Director of Public Prosecutions (WA) v Free[4] McKechnie J made the following statements in relation to the requirements of s 14(1):
A judge does not have to be satisfied that an order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made ...
It is not helpful to speak of the test at a preliminary hearing as a low threshold or any other description. The words mean what they say, and the belief of the judge must be grounded in fact and must acknowledge that a judge is exercising a judicial, not administrative power, and so is permitted to bring scrutiny to the possibility of a detention or supervision order being made. At a preliminary hearing a judge must have a belief in the possibility the later court will be satisfied to a high degree of probability that a person is a serious danger to the community. It is a threshold that must be crossed before a judge can appoint psychiatrists to undertake an evaluation.
The phrase 'Reasonable grounds of belief' has been the subject of judicial interpretation. In George v Rockett (1990) 170 CLR 104:
'When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.'
Further on:
'The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.'
The principle to be extracted is that there must be sufficient facts or circumstances to ground in reason an inclination towards the proposition under review.
[4] Director of Public Prosecutions (WA) v Free [2010] WASC 255 [10] ‑ [13].
Similar observations in relation to the requirements of s 14(1) were made by Simmonds J in Director of Public Prosecutions (WA) v Dodd.[5]
[5] Director of Public Prosecutions (WA) v Dodd [2015] WASC 249 [34] ‑ [42].
Against this background of legal principle, I turn to refer to the material before me which bears upon my determination of the question posed by s 14(1).
The facts of the respondent's serious sexual offences
It is not necessary to set out in detail the facts of each of the respondent's above referred to serious sexual offences. It suffices to say the following.
The 21 offences of which the respondent was convicted on 8 September 2009 were committed against six different female victims aged from 3 to 11 years old. The offences were committed during the period 3 January 2001 to 1 December 2008. The victims included the respondent's step nieces, his step granddaughter and friends of his daughter. The sexual penetration offences included penile vaginal penetration, digital vaginal penetration and cunnilingus. A large number of the indecent dealing offences involved the respondent masturbating, on occasions to ejaculation, in the presence of the child. One of the offences of penile vaginal penetration committed by the respondent against a friend of his daughter was accepted by the respondent to be representative of a course of similar conduct engaged in by him towards her. The respondent admitted that he had sexually penetrated this 4‑year‑old girl on three to five other occasions over a period of about two years. Similarly, the respondent accepted that sexual penetration offences involving penile vaginal penetration and cunnilingus committed by him against his step granddaughter were representative of a course of conduct engaged in by him towards her.
The two indecent dealing offences of which the respondent was convicted on 13 April 2010 were committed during the period July 2008 to December 2008 against a 7‑year‑old female victim. The offences involved the respondent masturbating in the victim's presence.
The respondent's background and personal circumstances
The respondent was born in Tasmania on 11 June 1953. He is therefore now 65 years old.
The respondent is the fourth of five children born to his parents. His parents are deceased.
The respondent's parents' marriage was strained. They separated when he was 19.
The respondent was not subjected to any physical or sexual abuse as a child. However, it would appear that neither of his parents demonstrated any significant love or affection for him. In this respect he experienced an emotionally deprived childhood.
The respondent has no contact with his siblings.
The respondent left school at the age of 16. On leaving school he completed a motor mechanic apprenticeship. He had a consistent employment history prior to being imprisoned.
Prior to being imprisoned the respondent had been involved in several long term relationships. He was in a relationship at the time of being imprisoned. The relationship had commenced in 1993. The relationship had produced one child, a daughter, who was about 10 years old at the time of the respondent's convictions for his serious sexual offences.
The respondent had, at the time of his convictions, been living in this State for approximately 20 years.
The respondent's offending history
On 7 July 1989 the respondent was convicted in Tasmania of an offence of indecent assault. He committed the offence on 27 February 1989 against a 41‑year‑old female with an intellectual disability. He had come into contact with the victim in the course of his work as a volunteer at a community centre for disabled persons. It is not entirely clear on the available evidence precisely what sexual act formed the basis of the conviction. The respondent was sentenced to a term of imprisonment of 6 months wholly suspended for 18 months with a 'supervised probation order' and a requirement that he be of good behaviour during the term of the period of suspension.
On 22 April 1996 the respondent was convicted of three cannabis related offences for which he was fined.
On 15 April 2005 the respondent was convicted of one offence of aggravated common assault. The assault was comprised of the respondent, during an argument with his partner, striking his partner to the face. The respondent was sentenced to a 12 month community based order with program and supervision requirements, and a requirement that he undertake 100 hours of community work.
Reports prepared by psychiatrists under s 37 of the Act
No psychiatric reports have been prepared pursuant to s 37 of the Act for the purposes of the application for the order under s 14(1).
Psychological and other assessments relating to the respondent
Psychological report
Ms Cinzia Zuin, psychologist, prepared a report in relation to the respondent dated 29 May 2009. The report was before the judge who sentenced the respondent for the offences of which he was convicted on 8 September 2009.
It appears from Ms Zuin's report that the referral was only made to her in relation to three of the offences committed by the respondent against his step granddaughter. It is not clear from the material before me why this was the case, although the likely explanation is that at the time the report was requested the accused had not been charged with the other offences of which he was ultimately convicted, or at least had not been committed to the District Court to be dealt with for the other charges. In any event, the net result is that Ms Zuin in her report refers only to two of the indecent dealing offences and one of the sexual penetration offences of which the respondent was convicted on 8 September 2009.
Ms Zuin's report reveals the following.
The respondent was initially 'very evasive' when discussing his offending and prior history in Tasmania. However, a short time into the interview he 'did a major turn' and disclosed information that 'he knew would potentially place him in a far worse light'. From this point on the respondent became more open to answering questions.
The respondent accepted responsibility for his sexual offending with his step granddaughter. He acknowledged that the charges were representative of substantially more conduct with her over a period of approximately eight years starting when she was aged 4. The respondent admitted to using his step granddaughter as a sexual object. He stated that the reason for his offending was that his step granddaughter was a female child and an easy target due to her age. He denied any particular attraction to her.
The respondent stated to Ms Zuin that he could not control his behaviour in having sexual contact with children. He confessed to sexually offending against children for 'his entire adult life' since he was a young child. He suggested that this behaviour commenced when he was 8 years old. He stated that his interest had never waned.
Ms Zuin's view was that these statements made by the respondent were alarming and suggested that he had 'well entrenched paedophilic interests that have been well concealed until this point in time'.
The respondent admitted to Ms Zuin that he 'created situations to stimulate [children's] curiosity such as exposing himself, masturbating in their presence and touching'. He stated that he had performed oral sex on children and that some had performed oral sex on him. He denied instructing children to do anything and said that they usually engaged in the sexual activity 'because they wanted to'. The respondent denied using any inducements to entice children to engage in sexual contact.
The respondent stated that his sexual interest was only in female children and that he preferred them to be aged around 7 or 8 years old. He said that while he derived sexual gratification from children 'his preferred form of sexual contact was with adult women'.
The respondent acknowledged that sexual contact with children was wrong. However, he said that he had never been able to control his urge to offend against children. He stated that the 'high' that came with offending against a child was followed by a low where he would want to commit suicide because he knew that what he was doing was wrong.
The respondent expressed a strong desire to address his offending behaviour. He admitted that he had little understanding about why behaviour he had enjoyed as a child had continued into his adult life.
Ms Zuin considered that the respondent had intensive treatment needs with respect to his paedophilic tendencies. She also considered (based, it would appear, on the respondent's statements as to the extent of his past offending) that the respondent posed a 'very high risk of further offending'.
The respondent emphatically denied to Ms Zuin having a sexual interest in his daughter. Ms Zuin did not find it particularly surprising that the respondent did not have a sexual interest in his daughter given that he objectified children with whom he had no emotional attachment.
Ms Zuin considered that the picture that emerged from the respondent's childhood is that it was 'somewhat emotionally deprived'. She considered that it was possible that the respondent's experience of sexual play with other children was a 'means of getting close to someone and feeling good', and that the degree of comfort and pleasure that was experienced by him had over the years distorted and turned into a deviant sexual practice.
Ms Zuin's impression was that the respondent could be selfish about obtaining his sexual gratification and that this approach contributed to his offending against children.
The respondent indicated to Ms Zuin that nothing would stop him from wanting to have sexual contact with children and that prison was probably the safest place for him and any potential victim.
Ms Zuin used the Static 99 risk assessment tool to assess the respondent's risk of sexual reoffending. Using this tool she assessed the respondent as being in the Medium‑High risk category, that is, there was 30% chance of him committing further sexual offences within a five year period.
Pre‑sentence reports dated 9 June 2009 and 9 July 2009
Two pre‑sentence reports dated 9 June 2009 and 9 July 2009 were prepared by Ms Leanne Hegney, community corrections officer, in relation to the respondent. The reports were before the judge who sentenced the respondent for the offences of which he was convicted on 8 September 2009. The reports reveal the following.
The respondent informed Ms Hegney that his sexually deviant behaviour had spanned '40 years or more' and had involved numerous victims. He referred to his behaviour as something that he was not able to control despite being aware that he was committing criminal offences. He suggested that he could not 'stop the emotional dependency' and that it was 'similar to an addiction'.
The respondent, throughout his interview with Ms Hegney, expressed no victim empathy. However, he acknowledged that his step granddaughter was probably at an age where the abuse that he had perpetrated on her was having an 'emotional effect'.
The respondent stated that he had manipulated his 'normal life to accommodate the dangerous side', and that he had defused or denied past attempts by others to raise their suspicions regarding his conduct.
The respondent stated that he was relieved at being charged and that he did not 'want to be outside … [and didn't] want a short jail sentence'.
Pre‑sentence report dated 12 March 2010
A further pre‑sentence report dated 12 March 2010 was prepared by Ms Linda Workman, community corrections officer, in relation to the respondent for the purpose of the respondent's sentencing for the offences of which he was convicted on 13 April 2010. The report was before the judge who sentenced the respondent. The report reveals the following.
The respondent appeared to minimise his offences and not realise the impact that his behaviour would have had on the victim. He stated that he believed he had an 'addiction' which he could not control despite being aware that his actions were inappropriate.
The respondent stated that his partner had become suspicious of his sexual behaviours on more than one occasion. He said that he had committed the assault against his partner the subject of his aggravated common assault offence when she was 'getting too close' to discovering his 'secret'.
The respondent denied ever offending against his daughter, saying that he did not view her sexually, and that they had a 'father and daughter' bond.
The respondent admitted to enjoying sexual gratification from young children. However, he stated that he preferred sexual contact with adult women. He stated that he becomes bored when in a relationship and seeks higher levels of sexual gratification and excitement. He stated that it was 'easier and less cluttered' to be sexual with children, rather than endure the complications of having an affair with an adult female.
The respondent relayed a history of inappropriate sexual behaviour commencing at the age of 8 years.
The respondent admitted that throughout his offending against children he had engaged in an extensive range of sexual offending against them, including different forms of sexual penetration, exposure, touching and masturbation in their presence. He stated his preference to be for 8‑year‑old children and that his preference is restricted to females.
The respondent displayed limited insight and appeared to view some of the victims as having been somewhat willing to engage in sexual activity with him. He related these ideas back to his sexual curiosity as a child and his 'desire for older persons to engage in sexual play with him'.
The respondent reported experiencing suicidal ideations as a result of feelings of guilt or remorse after his offending conduct. However he stated that those feelings would stabilise and that he would then again seek to sexually engage with children.
Based on the respondent's disclosures about his sexual interests and his long history of sexual offending against children, Ms Workman was of the view that he appeared to pose a very high risk of reoffending without intensive treatment intervention.
Treatment programs completed while in custody
On 7 June 2011 the respondent commenced the Intensive Sex Offender Treatment Program. He completed the program on 14 December 2011.
A Program Completion Report dated 4 April 2012 was prepared by two senior programs officers and a clinical supervisor. The report reveals the following.
The respondent's level of participation in the program was variable. He appeared ambivalent in relation to seeking treatment. He was reluctant to discuss his future plans for managing risks.
During the program the respondent took responsibility for his offences. He acknowledged his role in selecting victims and creating opportunities to offend. He did not make any attempt to blame the victims for what he had done. However, he did not impress as appreciating the seriousness of his actions. During his pre‑group interview he referred to his offending occurring due to 'sexual urges and addiction'. However, he did not repeat these views during the remainder of the program.
The authors of the report had difficulty gauging whether the respondent was remorseful for his actions given that his emotional demeanour rarely changed. The respondent was able to identify the potential impacts of his offending on his victims. However, he reported that he had difficulties adopting 'perspective taking'.
The respondent relayed a familial and sexual development history which largely mirrored what he had conveyed to Ms Zuin and the writers of the pre‑sentence reports.
The authors of the report identified the following background factors that were in existence in the six months leading up to the commencement of the respondent's offending:
1.Relationship and intimacy issues: The respondent's partner developed a gambling habit which resulted in decreased intimacy. The respondent had trouble expressing his needs to his partner. He developed a preference for his partner to be away from home so that he could experience his fantasies and have private contact with the children;
2.Sexual fantasies: The respondent was experiencing sexual fantasies involving female children that he had access to and was taking care of. Just prior to committing the offences he was preoccupied with sexual thoughts about female children. He specifically fantasised about ways that he could masturbate around female children; and
3.Avoidant coping: The respondent was preoccupied with work and his inappropriate fantasies involving female children. He therefore did not take any steps to repair his relationship with his partner.
During the program the respondent identified the following 'immediate factors as salient in his decision' to commit his offences:
1.Emotional needs: He felt that he had an emotional connection with the victims that he did not share with his partner. He found being with children to be less emotionally complicated and demanding than being with adults;
2.Sexual preference: He admitted to being sexually attracted to female children and to fantasising about them when masturbating. He would fantasise about his victims during his sexual encounters with his partner. He experienced gratification and 'a thrill' when the children saw him masturbating, and played out fantasies about female children in his mind just prior to committing his offences;
3.Creating opportunities: He created an environment where children could come and go and he created loose boundaries within the household. He played hide and seek in order to get the victims where he wanted them in the house;
4.Overcoming thought processes: He groomed his victims by gradually exposing them to sexualised behaviour. He had thoughts around believing that the victims enjoyed masturbating him and believing that he had fallen in love with them. He also had thoughts that sex and nudity were a normal part of growing up and therefore engaged in sexual acts in front of the children.
The respondent indicated that he did not see himself entering into a relationship in the future. He did not put forward any suggestions as to how he would meet his sexual and intimacy needs. He stated that he 'did not need to consider this in the future'.
The respondent acknowledged access to children to be a risk factor for him. He stated that he would not form any relationships, including friendships with females, who have children or grandchildren who are of a similar age to the victims of his offences. He commented that he had placed 'moral boundaries' on himself as a deterrent from offending in the future. However, many of the deterrents identified by the respondent centred on remaining vigilant and self‑protection rather than not wanting to cause harm to others.
The view of the authors of the report was that the respondent did not have realistic and adequate plans in place to manage the risk of future contact with children.
The respondent reported no current unhealthy sexual fantasies. He maintained that he had last experienced deviant fantasies 'years ago'. He stated that he believed that his self‑control would combat any temptation that may arise in the future. When the respondent was questioned about how these fantasies had become dormant he could not articulate precisely how this had occurred. However, he stated that he had applied certain Buddhist philosophical methods including mindfulness and awareness.
The respondent maintained that his attraction to 8‑year‑old females had subsided since he had been imprisoned. He did not provide any explanation for how or why this had occurred. He acknowledged that at the time of his offending he had objectified children and seen them as sexual objects. He stated that he would deal with this in the future 'by not becoming aware of the child's body parts that he found attractive'.
The respondent identified several risk factors including feeling trapped, pressured, worthless and that he was a failure. He indicated that he would cope with these feelings by being open in relationships, being aware of these feelings, communicating his needs and wants, compromising, being mindful of not blaming others, taking ownership and ending dysfunctional relationships. He stated that he was open to receiving professional assistance if these strategies did not alleviate his feelings of being trapped, pressured, worthless and that he was a failure.
The authors of the report considered that the respondent's abilities to implement the above stated strategies was 'dubious' given that he experienced difficulties communicating his needs and wants in the group context and was reluctant to explore and discuss other uncomfortable feelings.
Using the Static 99 risk assessment tool, the authors found the respondent to represent a Medium‑High risk of sexual reoffending.
In the view of the authors, the respondent made some treatment gains during the program including gaining some understanding of the factors underlying his offending and demonstrating a greater acceptance of responsibility for his offending. However, they considered that the respondent's self‑management plan could be further strengthened by additional support in the area of identifying practical measures to deal with high risk situations, 'exploring and management' around unhealthy sexual fantasies, more consideration of potential risk factors including contact with children and deviant thoughts and fantasies, and practical and specific plans around coping and emotional management. Overall, the opinion of the authors was that the respondent's self‑management plan lacked practical and realistic strategies to apply in the future.
The recommendations of the authors were that the respondent abide by any Victim Mediation Unit agreements currently in place, have no unsupervised contact with children under the age of 16 years, undergo programs to address his outstanding needs, and show his self‑management plan to a community corrections officer in order to gain assistance with its development, implementation and monitoring.
Risk of committing further offences
As I have pointed out, at the time of being dealt with for his serious sexual offences the respondent was assessed by the psychologist Ms Zuin as being at a Medium‑High risk of reoffending, and by the community corrections officer Ms Workman as being at a very high risk of reoffending. Further, and as I have also just pointed out, during the respondent's participation in the Intensive Sex Offender Treatment Program he was assessed as being at a Medium‑High risk of reoffending. Given the results of these assessments, the nature and extent of the respondent's history of offending, his past statements as to his lack of ability to control his urges to sexually offend against young female children, and what would appear to be relatively limited gains made by the respondent during his participation in the Intensive Sex Offender Treatment Program, I am satisfied that there is currently a risk that the respondent, if released, will commit further sexual offences against female children.
Conclusion
The respondent has a significant history of committing serious sexual offences against young female children. His history of such offending, on his own admission, extends well beyond that which is reflected in his record. At the time that he was dealt with for his 23 serious sexual offences he repeatedly asserted that he was addicted to engaging in sexual activity with young girls and that he could not control his urges to do so. Although he has participated in and completed the Intensive Sex Offender Treatment Program and made some limited treatment gains as a result of doing so, the self‑management plan that he had formulated by the end of the program was inadequate consisting in the main of his expressed intentions to avoid forming any sort of relationships with females who had young female children and grandchildren, complying with his 'moral boundaries', exercising self‑control, and practising mindfulness and awareness in accordance with Buddhist philosophies. He is, as I have found, at risk of committing further sexual offences against young female children. In all these circumstances I am satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the respondent is a serious danger to the community. To put it another way, I have a belief in the possibility that the court will be satisfied to a high degree of probability that the respondent is a serious danger to the community. I therefore allow the application under s 14(1) and will make the orders sought by the applicant.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
ASSOCIATE TO THE HONOURABLE JUSTICE DERRICK15 NOVEMBER 2018
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