The State of Western Australia v Misko [No 7]
[2021] WASC 103
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MISKO [No 7] [2021] WASC 103
CORAM: TOTTLE J
HEARD: 9 APRIL 2021
DELIVERED : 12 APRIL 2021
FILE NO/S: SO 2 of 2012
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JOHN TERRY MISKO
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Review of continuing detention order - Whether respondent remains a high risk serious offender - Whether to affirm continuing detention order or make a supervision order - Whether community would be adequately protected if respondent released on a supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA), s 64, s 68, s 125
Result:
Continuing detention order rescinded
Supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr T W McPhee |
| Respondent | : | Mr D J McKenzie |
Solicitors:
| Applicant | : | State Solicitor for Western Australia |
| Respondent | : | David McKenzie Legal Pty Ltd |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Misko [No 2] [2013] WASC 300
Director of Public Prosecutions (WA) v Misko [No 3] [2014] WASC 332
Director of Public Prosecutions (WA) v Misko [No 4] [2016] WASC 4
Director of Public Prosecutions (WA) v Misko [No 5] [2017] WASC 8
The State of Western Australia v Misko [No 6] [2018] WASC 389
The State of Western Australia v Narkle [2020] WASC 410
The State of Western Australia v Narrier [No 6] [2020] WASC 349
TOTTLE J:
Introduction
In these reasons I will explain why I have decided the respondent is a high risk serious offender within the meaning of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act). I will explain also why I will rescind the existing continuing detention order in respect of the respondent and make an order that the respondent be released into the community under the terms of a supervision order.
The supervision order will contain 53 conditions designed to closely monitor and control the respondent's activities and provide him with support when released into the community. That the respondent is supported is most important because he is intellectually impaired and, having spent 21 years in custody, he will need considerable support to adjust to life in the community. Such support mitigates the risk of the respondent reoffending.
Background
Some reference to the respondent's history and the legislation is required.
Between 1993 and 1998 the respondent committed a series of serious violent sexual offences for which he was sentenced to a total of 20 years in prison. Under the sentencing regime then in place the respondent became eligible for release in July 2012.
On 5 July 2012 McKechnie J found that the respondent was a serious danger to the community and made a continuing detention order pursuant to s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act).
The continuing detention order has been the subject of five annual reviews conducted under the DSO Act.[1] The last such review was undertaken in 2018. On that occasion Derrick J concluded that the respondent remained a serious danger to the community but the need to ensure the adequate protection of the community could properly and satisfactorily be met by releasing the respondent on a supervision order containing the conditions then proposed. There was, however, no suitable accommodation available for the respondent and it was not possible for the court to make a supervision order that provided for the level of supervision then considered necessary. Consequently, on 13 December 2018, Derrick J affirmed the continuing detention order and the respondent remained in custody.
[1] Director of Public Prosecutions (WA) v Misko[No 2] [2013] WASC 300; Director of Public Prosecutions (WA) v Misko[No 3] [2014] WASC 332; Director of Public Prosecutions (WA) v Misko [No 4] [2016] WASC 4; Director of Public Prosecutions (WA) v Misko [No 5] [2017] WASC 8; The State of Western Australia v Misko [No 6] [2018] WASC 389.
This sixth review of the continuing detention order has been undertaken under s 66 and s 68 of the HRSO Act. The HRSO Act repealed and replaced the DSO Act. The effect of the transitional provisions of the HRSO Act is that the continuing detention order is taken to be made under the HRSO Act and this review is conducted under that Act.[2]
[2] The State of Western Australia v Narrier [No 6] [2020] WASC 349 [4] see also The State of Western Australia v Narkle [2020] WASC 410 [4] (Quinlan CJ).
An offender is a high risk serious offender if the court dealing with an application under the Act 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 an offender to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.[3] In determining whether an offender is a high risk serious offender the court must have regard to the 10 considerations specified in s 7(3) of Act.
[3] HRSO Act, s 7(1) and s 48.
The reasons for finding the respondent is a high risk serious offender
The respondent, through his counsel, accepted that the respondent is a high risk serious offender. This is, however, a matter that must be determined by the court. In the light of the concession made by the respondent I can deal with the issue relatively briefly. I outline below, under headings that correspond with the circumstances specified in s 7(3) of the HRSO Act, the matters which, taken in combination, satisfy me to a high degree of probability that the respondent is a high risk serious offender.
Reports prepared for the hearing - s 7(3)(a)
The starting point is the reports of Dr Gosia Wojnarowska, who assessed the respondent for the purposes of this review.[4] Dr Wojnarowska assessed and reported on the respondent for the purposes of the 2012 application and for each subsequent review.
[4] 3 December 2020 and 31 March 2021.
Dr Wojnarowska noted that the respondent has a mild intellectual disability and has been approved for funding by the National Disability Insurance Scheme (NDIS).[5] Dr Wojnarowska noted the respondent was diagnosed with antisocial personality disorder in 2012. This diagnosis was based on the respondent's failure, when in the community, to conform to social norms with respect to lawful behaviours, his persistent dishonesty, impulsiveness, aggressiveness, lack of remorse and a documented history of conduct disorder.
[5] In Dr Wojnarowska's report of 21 June 2012 she referred to the various psychological tests that had been performed on the respondent and which recorded from that from a young age the respondent's intellectual disability was recognised. In a 1995 report the respondent's intellectual ability was described as approximately equivalent to the lower 5% of the general population but that he was significantly more impaired on the range of intellectual abilities to do with verbal reasoning and logical thinking than on practical performance of tasks of daily living. In an earlier report reference was made to the respondent's poor literacy skills which impeded his ability to function independently, for example, to handling banking.
For the reasons set out in detail in her reports, Dr Wojnarowska is of the opinion that the respondent presents with a high risk of reoffending of a serious nature, including committing serious and violent sexual offences, though the risk has continued to decline. Dr Wojnarowska considers that the respondent's risk of reoffending could be managed in the community without the need for the level of supervision that she considered was necessary in 2018. Dr Wojnarowska considered that there were no identifiable gains that could be met in custody and in order for the respondent to progress further, his treatment should take place in the community.
Any other assessments relating to the respondent - s 7(3)(b)
Ms Joanne Collyer is a senior counselling psychologist. For the purposes of this review Ms Collyer prepared two reports on the respondent.[6] Ms Collyer's reports were directed to the provision of an overview of the psychological interventions provided to the respondent since 2018 rather being focussed directly on the risk of reoffending though the contents of her reports and her oral evidence provided important background to the assessment the court has to make. I refer to Ms Collyer's reports in more detail in the course of my explaining my reasons for making a supervision order.
[6] 25 November 2020 and 26 March 2021.
Ms Brooke Mandolene, a senior community corrections officer with the Community Offender Monitoring Unit, prepared a Community Supervision Assessment which focussed on issues relating to the management of the respondent in the community in the event a supervision order was made. I refer to the issues raised in this report later.
Information indicating whether or not the respondent has propensity to commit serious offences in the future - s 7(3)(c)
The respondent's offending history and the psychiatric evidence persuade me that the respondent has a latent propensity to commit violent sexual offences though the propensity has diminished as the respondent has aged and with the benefit of the counselling and other programmatic interventions he has received.
Whether or not there is a pattern of offending behaviour - s 7(3)(d)
There was a pattern to the respondent's behaviour in the community - he approached women who are vulnerable due to intoxication, emotional upset, or isolation.
Efforts to address the cause of the offending behaviour and participation in rehabilitation programmes - s 7(3)(e)
The respondent has engaged in treatment to address the causes of his offending. The respondent's intellectual impairment limits his ability to think in abstract terms and thus limits his level of insight into the causes of his offending. The respondent responds well, however, to behavioural therapy which engages his concrete thinking style.
In her oral evidence Ms Collyer spoke in positive terms about the progress the respondent had made since being moved into the pre‑release unit in the prison where he is presently housed. She said that in 2018 the respondent was 'highly institutionalised'. The pre‑release unit has given the respondent many opportunities to develop the skills required for living independently in the community.
It is to the respondent's credit, and to his advantage on this review, that while he has been in custody he has undertaken over 130 vocational training courses.
In the course of explaining why a supervision order should be made I refer in more detail to the respondent's positive response to programmatic interventions.
The respondent's antecedents and criminal record - s 7(3)(g)
The respondent is now 52 years of age. He has been in custody for over 21 years. The combination of the respondent's intellectual disability, antisocial personality disorder and the fact that the respondent has been living in an institution for many years mean that the respondent will need significant support in the community not only to address the risk of reoffending but to assist with his transition to returning to live in a society that has changed since he was imprisoned.
The respondent's physical health is not good. He has type 2 diabetes, ischemic heart disease, hypertension, hyperclosterolemia, fatty liver and asthma. The respondent reports erectile dysfunction that he attributes to his chronic health problems.
Details of the respondent's offending have been set out in earlier reviews.[7] For present purposes it is sufficient to record that it was serious violent offending and, notwithstanding the respondent's intellectual deficits, he was able to gain the confidence of his victims.
The risk that if the respondent were not subject to a restriction order he would commit a serious offence - s 7(3)(h) - the need to protect members of the community from that risk - s 7(3)(i)
[7] The State of Western Australia v Misko [No 6] [2018] WASC 389 [13].
Although the risk of the respondent committing a serious offence has reduced slightly there is a risk that if not subject to a restriction order he would commit a serious offence. Dr Wojnarowska postulated a risk scenario involving a relapse by the respondent into alcohol use or, if he is subject to stress or social isolation, he may befriend an unknown woman, convince her to accompany him to an area where she is vulnerable and then commit violent offences or violent sexual offences against her. Such offending has the potential to cause significant harm to its victims and, self-evidently, there is a need to protect the community from that risk.
Any other relevant matter - s 7(3)(j)
All matters of relevance have been addressed in the preceding paragraphs.
The reasons for making a supervision order
By way of a preliminary observation I record that when considering whether to make a supervision order I have borne in mind that I should choose the order that is least invasive or destructive of the respondent's right to liberty, whilst ensuring an adequate degree of protection for the community. Additionally, I acknowledge that I must be satisfied, on the balance of probabilities, that the respondent would substantially comply with the standard conditions of a supervision order, and that the totality of the conditions would provide adequate protection of the community against the risk that the respondent would commit a serious offence.[8] The respondent bears the onus of establishing that he would substantially comply with the standard conditions.[9]
[8] HRSO Act, s 29(1), s 48(2).
[9] HRSO Act, s 29(2).
The reasons for making a supervision order are as follows.
First, the supervision order will provide for the close supervision and monitoring of the respondent. There will be continuous monitoring of his location by a global positioning tracking system (GPS). He will be subject to a 6.00 pm to 6.00 am curfew. He will be prohibited from consuming or possessing alcohol or from entering licensed premises save in certain very limited defined circumstances. He will be subject to random urinalysis and breath testing. Social interaction with women will be closely controlled. And, the respondent's activities will be monitored by the Sex Offender Management Squad and Community Offender Monitoring Unit.
In her report of 3 December 2020 Dr Wojnarowska identified the warning signs of reoffending by the respondent as including a relapse to alcohol use, frequenting nightclubs (or more realistically I would suggest, given the respondent's age and physical condition, other licensed premises), and disengagement from his therapists and supervising agencies. If the regime constituted by the supervision order is observed and enforced, these warning signs will be detected and the Community Offenders Management Unit and the Sex Offender Management Squad can take appropriate steps to protect the community.
Secondly, there have been improvements since 2012 in the respondent's psychiatric health and his insight into his offending. Additionally, he has developed pro-social attitudes. The evidence of Dr Wojnarowska and Ms Collyer provide the evidentiary foundation for this conclusion. In particular:
(a)Whilst not ignoring the factors that have led Dr Wojnarowska to conclude that the respondent presents a high risk of reoffending, she has noted that the respondent no longer denies his offences and accepts responsibility for his offending. Dr Wojnarowska described the respondent as having 'a very modest intellectual ability' and that while his insight into his offending is 'not perfect ... he has [made] a lot of progress in terms of how he views his past, the fact that he definitely accepts responsibility for what has occurred. And has been demonstrating pro social views for the last several years.' In her oral evidence Ms Collyer described the respondent as a motivated and engaged participant in his treatment. Her evidence was to the effect that probably the greatest treatment gain that had been achieved was the respondent's positive prosocial behaviour. The respondent had a good relationship with the psychologist who had provided him with counselling in custody. Counselling of that nature would be provided to the respondent in the community.
(b)Dr Wojnarowska notes also that while the respondent continues to experience difficulty articulating the nature, motivations and consequences of his sexual offending (beyond acknowledging the causal link between his alcohol use and offending) his self‑awareness has improved with psychological counselling.
(c)Dr Wojnarowska stated the respondent's mental state was quite unstable when she first assessed him, he experienced prominent anxiety and depressive symptoms and required considerable amounts of medication. Dr Wojnarowska stated also that when she assessed the respondent in 2012 he had regressed in his behaviour and had become very dependent on prison staff. Dr Wojnarowska stated that the respondent is no longer dependent on medication to assist him deal with stress and cope with life generally. His mental state has improved and he is now able to self-regulate without resort to psychotropic or other medications.
(d)Dr Wojnarowska noted that while the respondent does not have friends within the community, his friendly demeanour and propensity to seek approval from authority to elicit positive responses from his environment could assist in his ability to self-regulate.
(e)Although the respondent has experienced problems with planning in the past, Dr Wojnarowska says that he has been assisted in this respect by psychological counselling and noted the respondent had been able to conform to prison regulations and develop some realistic release plans.
(f)Dr Wojnarowska's view is that although the respondent breached community orders in the past, judging by his compliance with prison regulations he is likely to obey conditions imposed on him in the community if he has appropriate support.
(g)In her report dated 25 November 2020 Ms Collyer expressed a number of opinions that speak generally to the progress made by the respondent as follows:
The status of the Mr Misko's intervention needs in regard to his sexual and violent offending remains unchanged since the last hearing. It is considered unlikely that further insight will occur. Mr Misko has however, continued to develop life skills and demonstrate positive engagement in pro-social activities. As noted previously, this suggests that Mr Misko's stability is best achieved when he is supported to engage proactively in activities that increase his self-esteem and assist his emotional regulation. Similarly, ongoing rehearsal of potential risk scenarios and creating an environment when he can discuss emotional issues that emerge for him would support Mr Misko's capacities.
The opinion regarding Mr Misko remains consistent, that his offending occurred under a cloud of substance use, instability and lack of practical support when he was a man in his twenties. He is now a 51 year old man with compromised health whom, during his considerable incarceration, has demonstrated a persistent willingness and motivation to participate in employment, abstain from substances and engage in studies and treatment.
Treatment in custody is likely to be a continuation of focussing on his current functioning and discussion of coping and possible risk scenarios. Treatment should primarily be aimed at reviewing material and facilitating a therapeutic relationship that can offer support for Mr Misko on release.
Treatment during a supervision order is likely to focus on his adjustment to the community, monitoring stressors that may occur for Mr Misko, assistance with realistic goal setting and establishing relationships with professional supports and family.
…
Mr Misko has a concrete thinking style and borderline cognitive capacity. His insight into offending behaviours remains limited despite persistent, motivated and positive treatment engagement. Primarily the intervention focuses on risk scenarios discussions, debriefing around emotional concerns and promoting a positive outlook. Of concern, is that for longer Mr Misko remains in the prison setting, the less relevant discussions about risk scenarios and the idea of residing in the community becomes. On this note, Mr Misko will require support given the institutionalisation, and his tendency toward overstatement of skills that may result in unrealistic goal setting or undertaking tasks and activities beyond his scope. Mr Misko benefits and is responsive to professional support and boundary setting in this regard.
Reflecting on Mr Misko's positive training, employment and self-management opportunities it would appear that the best way forward in terms of addressing his outstanding treatment targets is a focus on behavioural and environmental supports. This would be enhanced with key, collaborative support professionals with whom he can discuss issues that present and assist him as required with problem-solving and goal setting. Initially this could be achieved with his treating psychologist, eventually transferring to a support worker (e.g. Uniting WA and/or more NDIS support agency).
Additional key components to support Mr Misko toward reintegration will be the development of a plan that incorporates the following:
a.Stable accommodation;
b.Vocational, educational and recreational programs - adequately sourced and supported;
c.Repetition of core management strategies specific to substance use, violence and sexual offending. This would initially occur with a treating psychologist but could ultimately be managed by alternative personnel such as a [senior Community Corrections Officer].
d.Collaboration between involved services to assure Mr Misko he is adequately supported with daily living needs, healthcare and planning toward long-term care services and supports.
The respondent is entrusted with providing peer support to other prisoners. This provides additional evidence of his development of pro‑social attitudes.
Thirdly, there has been a demonstrable improvement since 2018 in the respondent's ability to care for himself. Both Dr Wojnarowska and Ms Collyer gave evidence to the effect that the respondent's experience in the release unit had enabled him to develop the skills required to function independently thereby reducing the respondent's reliance on the institutional structure provided by the prison system. The relevance of this is that the respondent will be able to cope better with the stresses of living in the community and is less likely to compromise himself by seeking to relieve his stress by consuming alcohol or other substances.
Fourthly, suitable accommodation has been found for the respondent by agencies operating under the NDIS. The accommodation and support available to the respondent is the subject of Ms Mandolene's Community Supervision Assessmment. The police have undertaken a 'Desktop Spatial Analysis' in respect of the proposed accommodation. There are some concerns with the location of the accommodation but I am satisfied that in the light of the conditions contained in the supervision order and the ability of the respondent's designated Community Corrections Officer to restrict the respondent's movements by the creation of exclusion zones, those concerns can be adequately addressed without compromising the safety of any member of the community.
Fifthly, I am satisfied that the respondent will receive the support he requires to adjust to the stresses of life in the community without resorting to alcohol abuse to help him cope. In her report and in her oral evidence Ms Mandolene gave detailed evidence about her Unit's engagement with the National Disability Insurance Agency (NDIA).
At the hearing of this application there was evidence given about the amount of support that the respondent would require on a daily basis during the hours he was not the subject of the curfew. The provision of adequate support to the respondent is of critical importance. My overall impression from the evidence is that while the respondent requires a high level of support, he does not require constant support. Rather, he requires social interaction and targeted support to assist him engage with the community and develop work and leisure activities and assist him with life skills. As Dr Wojnarowska observed in her evidence, providing the respondent with more support than he needs may be counterproductive - it may impede the development of independent skills.
I need to address a serious problem that has emerged as a result of the extensive and generally positive interaction between the NDIA and the Community Offender Monitoring Unit.
Before identifying the problem it is important that I make two points. First, the NDIA's focus is assisting those who are beneficiaries of the NDIS with their disabilities. The Community Offender Monitoring Unit's focus is on the management of the risk of serious offenders living in the community. In appropriate cases, ensuring that offenders receive support with a range of services is an aspect of the management of risk but it is not primarily concerned with addressing the disability. The second thing I must acknowledge is that I have not had the benefit of hearing from anyone on behalf of the NDIA to provide its perspective on the problem that has arisen.
Having made those two points, the problems is this: the NDIA will not commit, that is will not make a final decision, on whether to provide support for the respondent until a supervision order is made by this court. I understand that this reflects a policy developed by the NDIA in response to difficulties in other cases.
The problem this policy creates for this court, and for the State in dealing with high risk serious offenders who suffer from a disability, is obvious. Unless the court has confidence that adequate support under the NDIS will be forthcoming for an offender, it will be unwilling to make a supervision order if such support is critical to the assessment of whether the offender will comply with the conditions of the supervision order.
Withholding a final commitment in respect of support under the NDIS until if and when a supervision order is made has the capacity to deprive disabled high risk serious offenders of the benefits of the NDIS because, in the absence of such a commitment, the offenders may well remain in custody under continuing detention orders. High risk serious offenders who suffer from a disability are a marginalised cohort with very limited support other than from the NDIS. It is of great concern if the policy were to have the effect of depriving these offenders of the assistance of the NDIS to which they would otherwise be entitled.
In this case, however, on the basis of the evidence of the engagement that has taken place between the Community Offender Management Unit and the NDIA (described by Ms Mandolene as 'intensive') in respect of the respondent I have a high degree of confidence that adequate support under the NDIS will be provided to the respondent.
Ms Mandolene gave evidence to the effect that significant progress had been made with the planning the assistance that the NDIA and its agencies would provide (subject to the final decision to which I have referred). A support plan has been developed and costed (though not finally approved), a comprehensive Behaviour Management Report on the respondent has been prepared by St Jude's Disability Services, support staff have been recruited to assist the respondent and there is a proposal that the staff meet the respondent in custody in anticipation of his release.
Sixthly, the final decision as to whether a supervision order will ensure the adequate protection of the community is for the court to make, however, in making the decision that the supervision order proposed in this case will adequately protect the community I am reassured that Dr Wojnarowska is of the opinion that the respondent could be adequately managed in the community and that nothing in Ms Collyer's evidence or in Ms Mandolene's evidence undermined the reasssurance I derived from Dr Wojnarowska's evidence.
Seventhly, the respondent is older. He has been detained under a continuing detention order since July 2012 and in custody for 21 years. I consider this lengthy period of detention and the prospect of further time in custody should the respondent breach the supervision order will have a deterrent effect on him.
For the reasons stated I will rescind the continuing detention order in respect of the respondent and make a supervision order with the conditions proposed by Ms Mandolene. Conformably with Dr Wojnarowska's opinion, the supervision order will be for a period of 10 years.
The applicant sought a non-publication order in respect of the address of the property where the respondent will be released to under the supervision order. The application was supported by the respondent. There is a well-founded concern that if the address at which a person the subject of a supervision order is living becomes known this may lead to action by members of the public which compromises the efficacy of the court's order. Accordingly, I order that there be no publication of the address, including the suburb of the property, at which the respondent will be residing when he is released subject to the supervision order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle
13 APRIL 2021
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