The State of Western Australia v MJD [No 3] - [2017] WASC 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- MJD [No 3] [2017] WASC 21

CORAM: JENKINS J

HEARD: 20 JANUARY 2017

DELIVERED : 20 JANUARY 2017

PUBLISHED : 2 FEBRUARY 2017

FILE NO/S: DSO 3 of 2015

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MJD
Respondent

Catchwords:

Criminal law - Dangerous sexual offender - Contravention of a supervision order - Whether supervision order ought to be amended - Whether detention order ought to be made

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 22, s 23, s 40A

Result:

Order made amending the conditions of the supervision order imposed on 11 September 2015

Category: B

Representation:

Counsel:

Applicant: Mr C G Astill
Respondent: Ms M R Barone

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers

Case(s) referred to in judgment(s):

Director of Public Prosecutions (WA) v MJD [No 2] [2015] WASC 346
Director of Public Prosecutions (WA) v Narrier [No 2] [2014] WASC 20
Italiano v the State of Western Australia [2009] WASCA 116
JENKINS J:

Introduction

By an application dated 28 November 2016, the State of Western Australia applied for an order under the Dangerous Sexual Offenders Act 2006 (WA) (the Act), s 22 and s 23, that the respondent be made the subject of a continuing detention order (CDO) or an amended supervision order. Although the application is worded in the alternative, the applicant's position at the hearing of the application was that it did not seek a CDO and, instead, sought an amendment to the supervision order to permit more frequent urinalysis.
The respondent pleaded guilty to a charge that between 10 November 2016 and 14 November 2016 at Perth he, being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by consuming or using a prohibited drug or substance namely amphetamine and methylamphetamine, in contravention of condition 29 of the supervision order contrary to the Act s 40A(1) (the second breach offence). For the second breach offence, I fined the respondent $1,500.
On 20 January 2017, at the conclusion of the hearing of the application, I ordered that the respondent's supervision order be amended to require the respondent for 6 months to submit himself to random urinalysis on a minimum of five occasions every 14 days. Thereafter, urinalysis will take place at the discretion of the respondent's community corrections officer (CCO) or a police officer. These are my reasons for making those orders.

The Act -section 23

The Act s 23 states:
(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 offender 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.
It was not in dispute that the respondent was subject to a supervision order made under the Act and that he contravened the order by committing the second breach offence.
Therefore, the question for me was whether I should make orders under s 23(1)(a) or (b).
In Director of Public Prosecutions (WA) v Narrier [No 2] [2014] WASC 20 I said that before I could amend a supervision order or make an order under s 23(1)(a), I have to consider whether, instead, a CDO ought to be made under s 23(1)(b). When making a decision under s 23(1)(b) as to whether there is an unacceptable risk that, if a CDO were not made, the respondent would commit a serious sexual offence, I must consider whether on the day of the hearing, the respondent is an unacceptable risk of committing a serious sexual offence within an undefined reasonable time from the making of the order, even if he was on an amended supervision order.
The term 'unacceptable risk' is not defined in the Act. A finding that there is an unacceptable risk is an evaluative and predictive finding of fact following a balancing exercise in which I am required, on the one hand, to have regard to amongst other things, the nature of the risk and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender if an order is made: Italiano v the State of Western Australia [2009] WASCA 116 [46]. When carrying out the balancing exercise I am required to take into account that the paramount consideration is the need to ensure adequate protection of the community.

Background

The respondent's history up until September 2015 is set out in Mitchell J's reasons for decision in Director of Public Prosecutions (WA) v MJD [No 2] [2015] WASC 346.
Neither party has challenged his Honour's recitation of the respondent's background and so I will not repeat it in full. Those reasons ought to be read in conjunction with these reasons.
In summary, the respondent is a 55‑year‑old indigenous man who was born in Carnarvon. He had a disadvantaged childhood which included violence and sexual abuse.
As an adult he has had significant periods of homelessness and instability. He chronically abused substances including methylated spirits, alcohol, cannabis and amphetamine.
His mental health was unstable for a significant period of time. In the 1980s he made a number of suicide attempts. In 2010, he was admitted to the Swan Valley Centre suffering from suicidal ideation and low mood. He was discharged in April 2010 with a final diagnosis of 'major depressive order, moderate to severe bipolar mood disorder, depressive episode'. He was not compliant with the medication which he was prescribed at that time. He had further episodes of suicidal ideation and attempts at suicide.
The respondent has admitted to indecently assaulting three half‑sisters in the 1970s although he has never been charged over those incidents.
In 1983 or 1984 the respondent raped his half‑sister with whom he was then living. She was an adult.
In 1992 the respondent indecently assaulted his 11‑year‑old daughter.
In 1997 the respondent indecently assaulted his 12‑year‑old step‑daughter.
In 2009 and 2010 the respondent sexually assaulted his then 6‑year‑old granddaughter. The offences included digital and penile penetration of her vagina.
The respondent has a history of non‑sexual offending. He has multiple convictions for assault and aggravated assault. His last conviction was in January 2009.
On 29 April 2011, the respondent was sentenced to a total of 5 years and 3 months' imprisonment from 25 May 2010 for the offences against his granddaughter and the rape of his half‑sister in 1983 ‑ 1984. The victims of those offences had not complained to the police prior to the respondent voluntarily confessing the offences to the police in 2010. As Mitchell J noted, at this time the respondent was suffering from several serious psychiatric disorders including bipolar disorder, he was abusing alcohol and drugs, he was not taking his prescribed medication and he was living an itinerant lifestyle.
Whilst in custody prior to the Division 2 hearing, the respondent completed the pathways programme and the intensive sex offender treatment programme. He also engaged with the prison counselling service. Although the respondent had attempted self‑harm whilst in prison, his completion of these programmes and psychological counselling resulted in 'a considerable reduction in risk behaviour in relation to suicide'.
On 11 September 2015, Mitchell J found that the respondent was a serious danger to the community, and that a supervision order should be made as a means of ensuring adequate protection of the community. The supervision order made by Mitchell J was for a period of 5 years and was signed on 14 September 2015. The supervision order contains 48 conditions, including a residential condition, conditions designed to restrict and monitor the respondent's movements, conditions which require him to undergo psychological treatment and conditions which prevent him from participating in high risk activities. In the respondent's case these conditions require him to:
(1)Not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis (condition 29);
(2)Not possess, consume or use alcohol (condition 38);
(3)Have no contact with any child under the age of 16 years (condition 42).

Events since September 2015

Initially, on release on the supervision order the respondent went to live with his brother. In March 2016, his brother advised that he was no longer willing to have the respondent reside with him. This was consistent with his brother's advice at the time of the Division 2 hearing that the placement would be only for a limited time. The respondent was then relocated to an Outcare property. This was only a short‑term basis and the respondent was required to actively seek private accommodation. However, the respondent was then under consideration for a disability support pension and his search for accommodation did not commence in earnest until he was in receipt of a pension and had the financial resources to obtain his own accommodation. On 5 January 2017, the respondent signed a lease for a private rental property to which he was to move in late January 2017.
The respondent has told various people that since being released on the supervision order he has felt disconnected and isolated from others. Attempts have been made to reconnect him with the community but for various reasons, some of which are due to the respondent's, self‑defeating behaviour, these have not been successful. He had also admitted to being unmotivated to engage in activity consequent upon these contravention proceedings. However, he had said that he wished to engage in an exercise programme and further training to develop his art skills.
Discussions have been held with Outcare about obtaining a mentor for the respondent. However, one has not been identified.
Since being released on the supervision order the respondent has regularly attended, as directed, weekly appointments with his senior community corrections officer (SCCO). Despite a generally positive engagement with his SCCO, at times the respondent has been 'oppositional and argumentative during supervision, claiming that the order conditions to be onerous and restrictive'.
The other concern about his engagement with his SCCO is that it has been 'somewhat superficial'. The respondent has had a number of potentially stressful incidents, including the deaths of a maternal uncle and a grandson, a stroke suffered by his brother and the need to find alternative accommodation. Although the respondent told his SCCO that these and other such incidents were not heavily impacting him, subsequent events appear to have shown that this was not the case. For example, the respondent's use of methamphetamine can be seen as a means by which he has sought to relieve his stress, which he has not admitted to his SCCO.
The respondent sees a senior clinical psychologist on a regular basis. The sessions initially occurred weekly, however over the course of the year the contact reduced to fortnightly, and at times three weekly, due to the respondent's apparent stability. The psychologist has reported that the respondent presents as stable and that he did not identify the issues that he has admitted subsequently were troubling him.
Since the second breach offence, the respondent has been seeing the psychologist weekly and he has referred himself for substance abuse counselling through Next Step with a counsellor from Holyoake. He attended his first session on 28 November 2016. However, he cancelled a session on 5 January 2017. He had a scheduled further attendance for 12 January 2017. The respondent has said that he plans to continue with these sessions to assist in addressing his substance use issues.
The respondent also reports to the Western Australian Police sex offender management squad (SOMS). In the week prior to his admission to the Frankland Centre on 23 December 2016, (see below) the respondent spoke inappropriately to police officers from SOMS. He has since acknowledged that his comments were inappropriate and he has attributed his behaviour to his frustration with the requirements of his supervision order.
The respondent attends for urinalysis as directed. He has provided two samples which were positive for illicit substances. The first sample was provided on 30 May 2016. Following the provision of the sample, the respondent telephoned his SCCO and disclosed that he had used amphetamines on 28 May 2016. He stated that he had taken a 'shot'. The respondent was charged under the Act s 40A and was convicted in the Perth Magistrates Court on 30 June 2016. He was fined $750 (the first breach offence).
At the time of the provision of this sample, the respondent said that his order requirements had begun to weigh on him. He claimed that he had found a syringe near his rubbish bin and that had been the catalyst for him deciding to obtain methamphetamine from a neighbour. However, the respondent later admitted that his use of methamphetamine was not as opportunistic as he claimed. He said that he made the decision to use and that he obtained the syringe from his neighbour when purchasing the drug.
The second positive sample was provided on 14 November 2016. During supervision on 21 November 2016, the respondent disclosed obtaining the drug from a man who had attended his unit complex and knocked on his door. He said that he was unable to recall the day he used the substance. However, he acknowledged that it was during the weekend prior to his urinalysis sample being provided.
In accordance with the conditions of his supervision order, the respondent is also a client of the Community Forensic Mental Health Service (CFMH). He initially saw the service on a weekly basis however this contact was reduced to fortnightly in late October 2016 due to his apparently stable presentation. He also sees a CFMH psychiatrist every two months.
A significant deterioration in the respondent's mental health occurred during the week commencing 19 December 2016. At the request of his SCCO, CFMH staff visited the respondent at home. He requested his medication be reviewed. On 23 December 2016, he saw the CFMH psychiatrist and said that he had suicidal ideation. He was voluntarily admitted to the Frankland Centre. He was discharged on 28 December 2016. After he was discharged, the respondent said that he had been feeling overwhelmed and depressed with his situation for a period of time. He had not disclosed this in his discussions with members of his support team.
The respondent now sees the CFMH psychiatrist on a fortnightly basis. He has said that since his release from the Frankland Centre his mood has stabilised. His brother has confirmed that the respondent identified as being 'stressed' but that since his discharge from hospital he appeared to be coping well and that he appeared to be less stressed.
The respondent has been prescribed an anti‑depressant, an anti‑psychotic and a mood stabiliser. These medications are provided to him in webster pack form. There is no suggestion that he is not compliant with his medications.

Psychiatric evidence

For the purpose of this application on 6 December 2016, the respondent was examined by Dr Gosia Wojnarowska, forensic consultant psychiatrist. Dr Wojnarowska had the advantages of having examined the respondent for the purpose of the Division 2 hearing, discussed the respondent's history with a CCO, discussed his mental health with his treating doctors and examined his discharge summary from the Frankland Centre.
Dr Wojnarowska said that when she interviewed the respondent he talked freely about his difficulties of living by himself and being isolated from family and community supports. When questioned about the reasons for the second breach offence, the respondent said that not long after his first breach offence one of his uncles had died in his sleep. He told Dr Wojnarowska that his uncle was like a father to him and the death was unexpected. Despite his strong wish to attend his uncle's funeral, he decided against it as he was concerned about the availability of alcohol and drugs, as well as the presence of children at the funeral. He described struggling emotionally for a long time. Specifically, he told Dr Wojnarowska:
I stopped enjoying life, stopped walking or painting; I was suicidal.
He said that on one occasion he accepted an offer to buy $150 of amphetamines. Dr Wojnarowska noted that despite the respondent's self‑report of depression at that time, his functioning was assessed regularly by his CFMH nurse and his SCCO as being adequate and his mental state as stable.
Dr Wojnarowska said that the respondent appeared to have a good understanding of the effect of drugs on his mental health and his risk of reoffending. He accepted that he required help and supervision and acknowledged that in order to stay substance free he would be required to engage in an open manner with his psychologist, his SCCO and the CFMH.
The respondent expressed positive views about the level of support that he has been receiving in the community. He thought that he had a good relationship with the people who supervise him and that his counselling sessions were going well. He understood that his medications kept him well and helped him to sleep. He identified his SCCO as a person who he could trust. When he was reminded that he had not disclosed his drug use to any of his support team he responded:
I knew that I was putting myself at risk but I had no joy in life.
The respondent told Dr Wojnarowska that he accepted that the supervision order was necessary, although, being labelled as a sex offender had been difficult for him. He had been struggling with his self‑image ever since. He told Dr Wojnarowska that the things he missed were social interactions with his relatives and participating in the family events such as birthdays and funerals. He said that he would like to extend his social network and suggested that having a partner would be a protective factor for him.
Dr Wojnarowska said that the respondent presented in an appropriate manner and that there was no evidence of him managing his presentation. The content of his speech did not reveal any depressive cognitions or suicidal thoughts. There was no evidence of cognitive distortions in relation to his risk of reoffending or substance use.
Dr Wojnarowska said that her diagnoses had not changed since her assessment of the respondent in 2015. However, in light of what had become evident about his limited ability to regulate negative emotions and his need to counteract them by using illicit substances, she added another descriptor of his personality, namely borderline traits.
Dr Wojnarowska has not changed her assessment of the respondent's risk of sexual reoffending. She acknowledged that the risk increases at the time of him being intoxicated, be it with alcohol or illicit drugs. She noted that the trigger for him using illicit substances were negative emotional states, associated with either inevitable life situations such as loneliness or boredom or facing life events such as the death of a relative. She noted that adequate supervision has prevented the respondent from entering the pathway of continuing and/or heavy drug use which, in her opinion, would lead to sexual reoffending.

She noted that the respondent's compliance with supervision appeared to be satisfactory and that his mental illness was well controlled. However, the level of his engagement, especially during the psychological counselling sessions, required further development.
Dr Wojnarowska made the following recommendations to assist in managing the respondent in the community. First, she recommended that the respondent be required to learn how to recognise, tolerate and deal with his negative emotions in a mature manner without having to resort to immediate gratification such as achieving mood elevation due to intoxication with illicit substances or alcohol. She recommended that a better level of engagement in psychological treatment was necessary to achieve this.
Secondly, Dr Wojnarowska said that close supervision with low tolerance for breaches, especially for those breaches related to illicit substances and alcohol consumption, should continue. In her opinion the frequency of random urinalysis should increase. She suggested that three times per week should be considered.
Thirdly, in light of the respondent's consistent complaint of loneliness and boredom, further social activities in which he could participate without being exposed to drugs and alcohol should be explored. This should be done with the respondent taking the initiative and responsibility for the quality of his life.
The SCCO who completed a DSO performance report for these proceedings concluded that it was of concern that the respondent had used amphetamine as a result of stressors in his life which he had not acknowledged to his supervising team. Further, he had been admitted to hospital due to a decline in his mental health and again without him discussing this with his support team. These matters reflected a superficial engagement in some respects with his supervising team.
The author recommended that to combat this, regular urinalysis attendance would be required in order to assist in identifying any future use of illicit substances. Further, continued engagement with his psychologist may assist in addressing the underlying causes of the respondent's relapse to illicit substance use. Clearly, the success of this engagement is dependent upon the respondent actively and truthfully engaging in the process. In order for the respondent to be rehabilitated, rather than simply controlled, the respondent needs to meaningfully and actively engage with members of his support team.

Conclusion

The respondent has contravened his supervision order on two occasions. The second breach offence enlivens my discretion to make an order amending the conditions of the supervision order or, if I am satisfied that there is an unacceptable risk that if the respondent is not detained on a CDO he would commit a serious sexual offence, to order that he be so detained.
The evidence satisfies me that the respondent's risk of serious sexual offending has not increased since he was released on the supervision order. It remains at the same level, albeit there is a much reduced chance that the risk will result in the respondent committing a sexual offence because he is so well supervised. The issue for me is whether that risk is reduced to an acceptable level, having regard to the paramount consideration of the need to ensure adequate protection of the community.
The respondent's significant likely mode of serious sexual reoffending is interfamilial abuse of young females. That risk is adequately and well managed under the current terms of the supervision order. The respondent has not had any contact with female family members since he was released on the supervision order and there is no suggestion that he has tried to have such contact or that he is likely to have it in the future.
There remains a risk that under the influence of alcohol or drugs, the respondent will commit a serious sexual offence against a non‑familial victim. This risk in my opinion could be adequately managed on the current supervision order by amending the present conditions designed to monitor any breach of the non‑illicit substance and alcohol conditions.
In addition, I recommend that the members of the respondent's support team encourage the respondent to identify and discuss with them the stressors in his life and how he can manage them legally. As a means of avoiding the loneliness and isolation he feels, he should be encouraged to participate in community activities, which do not involve children, alcohol or drugs. During times of anticipated stress, such as Christmas, changes in his accommodation and family bereavements, those supervising him should take particular care to increase supervision and urinalysis.