The State of Western Australia v Narkle
[2019] WASC 185
•28 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- NARKLE [2019] WASC 185
CORAM: DERRICK J
HEARD: 28 MAY 2019
DELIVERED : 28 MAY 2019
FILE NO/S: DSO 2 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
GARRY MICHAEL NARKLE
Respondent
Catchwords:
Dangerous Sexual Offenders Act 2006 (WA) - Preliminary hearing - Whether reasonable grounds for believing that court might find that the offender is a serious danger to the community
Legislation:
Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA)
Sentencing Act 1995 (WA)
Result:
Application for orders under s 14(1) of the Dangerous Sexual Offenders Act 2006 (WA) allowed
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Ms F A Cain |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Not applicable |
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 30 July 2010 the respondent was sentenced to a total of 10 years imprisonment for four offences of sexual penetration without consent contrary to s 325(1) of the Criminal Code (WA) (Code) and two offences of unlawful and indecent assault contrary to s 323 of the Code. He was not made eligible for parole. The commencement date of his sentence was backdated to 10 June 2009. His earliest date of release is therefore 9 June 2019.
The applicant now applies under s 8(1) of the Dangerous Sexual Offenders Act 2006 (WA) (Act) for an order under s 14(1) and for a further order under s 17(1), referred to in the Act as a Division 2 order. 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 (DPP), on 17 April 2019.
The annexures to Ms Watson's affidavit are comprised of materials relating to the numerous offences of which the respondent has over the years been convicted as well as various reports that have over the years been prepared in relation to the respondent. The reports include pre‑sentence reports, psychological reports and psychiatric reports.
At this point the applicant is only seeking an order under s 14(1) of the Act. Accordingly, the hearing before me is a preliminary hearing conducted pursuant to s 14(1).
The application for an order under s 14(1) is not opposed by the respondent. Nonetheless, it is still necessary for me to examine the evidence and to make the necessary findings.
Statutory provisions and applicable legal principles
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 11(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 v Dodd.[5]
[5] Director of Public Prosecutions (WA) v Dodd [2015] WASC 249 [34] ‑ [42].
Against this background of legal principle I turn now to refer to the material before me which bears upon my determination of the question posed by s 14(1).
The respondent's history of sexual offending
The respondent has been convicted of numerous sexual offences and sexually motivated offences as well as numerous other types of offences.
The details of the respondent's sexual and sexually motivated offences are set out in Ms Watson's affidavit. It is not necessary for me to recite the factual details of the offences in order to explain my reasons for coming to the conclusion that I have. Rather, it suffices for present purposes for me to describe the nature of the offences of which the respondent has been convicted.
On 17 March 1967 the respondent was convicted of one offence of aggravated unlawful assault on a male under the age of 17 contrary to s 313 and s 322 of the Code. The respondent committed the offence on 11 March 1967. The respondent was 12 years old at the time of committing the offence. The victim was 7 years old.
On 26 March 1969 the respondent was convicted of one offence of attempted sodomy contrary to s 181, s 552 and s 553 of the Code. The respondent committed the offence on 23 March 1969. The respondent was 14 years old at the time of committing the offence. The male victim was 10 years old. The offence committed on this occasion is a 'serious sexual offence' for the purposes of the Act.[6]
[6] Act, s 3, definition of 'serious sexual offence'.
On 19 January 1970 the respondent was convicted of two offences of aggravated unlawful assault contrary to s 313 and s 322 of the Code. The respondent committed the two offences on or about 15 January 1970 against two different female victims. The respondent was 14 years old when he committed the offences. The victim of one of the offences was 13 years old. The victim of the second offence was 17 years old.
On 1 May 1970 the respondent was convicted of an offence of aggravated unlawful assault contrary to s 313 and s 322 of the Code. The respondent committed the offence on 18 February 1970. The respondent was 15 years old at the time of committing the offence. The female victim was also 15 years old.
On 29 April 1980 the respondent was convicted of one offence of aggravated unlawful assault contrary to s 313 and s 322 of the Code and one offence of using threatening words contrary to s 59 of the Police Act 1892 (WA). The respondent committed the offences on 3 November 1979 against two different females. The respondent was 25 years old when he committed the offences. The ages of the two female victims are not known. The respondent was sentenced to 6 months imprisonment for the aggravated unlawful assault offence. He was fined for the offence of using threatening words.
On 8 February 1982 the respondent was convicted of two offences of aggravated unlawful assault contrary to s 313 and s 322 of the Code. He committed the first of the offences on 11 December 1981 and the second on 18 December 1981 against two different females. The respondent was 26 years old when he committed the offences. The age of the female victims of each of the offences is not known. The respondent was sentenced to a total of 9 months imprisonment for the two offences.
On 16 February 1982 the respondent was convicted of one offence of aggravated unlawful assault contrary to s 313 and s 322 of the Code. The respondent committed the offence on 12 October 1981 when he was 26 years old. The female victim was 13 years old. The respondent was fined $100 for the offence.
On 26 August 1982 the respondent was convicted of one offence of abducting a girl under the age of 16 contrary to s 330 of the Code and two offences of having carnal knowledge of a girl under the age of 16 contrary to s 187 of the Code. The respondent committed the offences on 16 to 18 January 1982. The respondent was just short of his 27th birthday at the time of committing the offences. The victim was 14 years old. The respondent was ultimately sentenced, after a successful appeal against the sentence imposed by the sentencing judge, to a total sentence of 2 years imprisonment. The two offences of having carnal knowledge of a girl under 16 are serious sexual offences for the purposes of the Act.
On 11 March 1985 the respondent was convicted of two offences of rape contrary to s 325 and s 326 of the Code, one offence of deprivation of liberty contrary to s 333 of the Code and one offence of breaking and entering with intent to commit an offence contrary to s 404 of the Code. He committed the offences on 17 July 1984. He was 29 years old at the time he committed the offences. The victim was 18 years old. The offences were committed 11 days after the respondent had been released from custody after being acquitted of other sexual assault charges. The respondent's rape offences are serious sexual offences for the purposes of the Act. On 19 April 1985 the respondent was sentenced to a total of 6 years and 10 months imprisonment for the offences.
On 17 August 1989 the respondent was convicted of one offence of unlawful assault occasioning bodily harm contrary to s 317 of the Code. He committed the offence on 19 April 1989 against his 20‑year‑old female partner. He was 34 years old when he committed the offence. At the time that he committed the offence he was on parole for the offences for which he had been sentenced to 6 years and 10 months imprisonment. He was sentenced to 2 months imprisonment for the assault.
On 27 July 1990 the respondent was convicted of two offences of aggravated sexual penetration without consent contrary to s 324E of the Code and one offence of deprivation of liberty contrary to s 333 of the Code. He committed the offences on 10 August 1989. He was 34 years old at the time. The female victim was 20 years old. At the time of committing the offences the respondent was on parole and also on bail. The respondent was sentenced to a total of 10 years imprisonment for the offences with eligibility for parole. The respondent's aggravated sexual penetration without consent offences are serious sexual offences for the purposes of the Act.
The respondent was released on parole on 5 May 1997.
On 13 January 2000 the respondent was convicted of one offence of unlawful assault occasioning bodily harm contrary to s 317 of the Code, one offence of assault with intent to commit a (non‑consensual sexual) crime contrary to s 317A of the Code and one offence of deprivation of liberty contrary to s 333 of the Code. The respondent committed the offences on 18 January 1998 while he was on parole. The respondent was just short of his 45th birthday at the time of committing the offence. The victim was a 15‑year‑old female. The respondent was sentenced to a total of 7 years imprisonment. He was not made eligible for parole.
On 21 September 2007 the respondent was convicted of one offence of unlawful and indecent assault contrary to s 323 of the Code. The respondent committed the offence on 18 February 2005 when he was 50 years old. The victim was a 46‑year‑old female. The respondent was ultimately, after a successful appeal against the sentence imposed by the magistrate's court, sentenced to 6 months and 2 weeks imprisonment suspended for 4 months for the offence.
On 28 May 2010 the respondent was convicted of the above referred to offences for which he is currently serving a term of 10 years imprisonment without eligibility for parole. The respondent committed the offences on 24 January 2009. The respondent had just turned 55 at the time of committing the offences. The victim was a 38‑year‑old male. Each of the respondent's four offences of sexual penetration without consent are serious sexual offences for the purposes of the Act.
The State made an application pursuant to s 98 of the Sentencing Act 1995 (WA) for an indefinite sentence to be imposed on the respondent for the offences of which he was convicted on 28 May 2010. After making the application the State received advice that the respondent had filed an appeal against his convictions in the High Court. The State therefore chose not to pursue the application for indefinite imprisonment until the appeal to the High Court had been dealt with. Ultimately, the appeal did not proceed. Thereafter, in 2011, the State decided not to proceed with the application for indefinite imprisonment on the basis that the making of any decision in relation to whether the State should seek that the respondent be kept in custody following the expiration of his 10 year sentence could, in light of the provisions of the Act, be made when the respondent's term of imprisonment was coming to an end.
The facts of the above referred to aggravated unlawful assault offences reveal that the offences were sexually motivated.
Reports
Over the years a number of reports have been prepared in relation to the respondent. I have had regard to these reports all of which are annexed to Ms Watson's affidavit. For present purposes, however, it suffices for me to refer specifically to the following:
1.Reports prepared for use by the judge who sentenced the respondent for the offences for which he is currently imprisoned (the index offences); and
2.Reports prepared in relation to the respondent's participation in programs while he has been serving his term of imprisonment for the index offences.
Reports prepared for use by the judge who sentenced the respondent for the index offences
Psychiatric report
The respondent was, prior to his sentencing for the index offences, assessed by Dr Mark Hall, consultant psychiatrist. Dr Hall prepared a report setting out the results of his assessment of the respondent dated 15 July 2010. Dr Hall's report reveals the following.
Dr Hall interviewed the respondent on 26 June 2010 for a total of four hours.
The respondent refused to accept responsibility for his offences. He claimed that the victim was a homeless male prostitute and had offered him sex.
The respondent was suffering from coronary artery disease, valvular heart disease, peripheral vascular disease, chronic obstructive airways disease and hyperlipidaemia.
The respondent exhibited ambivalence about his alcohol use. He stated to Dr Hall that a lot of his crimes, but not every one of them, had been due to alcohol.
In Dr Hall's view the respondent, having spent the better part of his adult life in prison, was institutionalised. He demonstrated a victim mentality and somewhat manipulative behaviour. He had a tendency to seek help with 'dramatic somatic presentations which had previously been thought to represent frank malingering'. He appeared to be poorly psychologically minded. He had a tendency to blame the victims of his crimes as well as the media, in addition to the prevailing societal attitudes during the 1960s.
The respondent told Dr Hall that in the initial periods of time following each of his previous releases from prison he experienced difficulties on account of reporting requirements and social stigma. He said that he tended to cope by consuming large amounts of alcohol.
In Dr Hall's view, the respondent's offending history and frequent casual liaisons suggested a degree of hyper sexuality and sexual preoccupation which the respondent minimised.
In Dr Hall's assessment, the respondent had a strongly positive regard for himself despite the crimes that he had committed. He demonstrated a relatively grandiose sense of self‑worth. He was unable to describe internal emotional states referring only to 'stress' and exhibited a shallow affect. He was unable to empathise with his victims.
Dr Hall asked the respondent about his sexual development, fantasy and behaviour. However, the respondent declined to discuss this subject.
The respondent claimed to Dr Hall that his early crimes had been an act of rebellion against the system that prevented Aboriginals from having equal rights to white people. He denied much of his offending history. He described a defiant attitude to the justice system and said that he no longer cared what happened to him because he was resigned to dying during his term of imprisonment on account of his heart disease.
In light of the respondent's documented long‑standing anxiety disorder, Dr Hall considered that the respondent minimised his level of anxiety during his interview with the respondent.
Dr Hall formed the view that the respondent believed that the 'world was against him', and that he exhibited a grandiose sense of self‑worth and somatic preoccupation. Dr Hall did not elicit from the respondent any psychotic features.
In Dr Hall's assessment the respondent was unable to empathise with his victims. He had poor insight into his psychological and behavioural functioning and minimised the frequency and intensity of his anxiety symptoms. He minimised his use of alcohol but appeared to have slight insight into his alcohol problem. His cognitive functioning was grossly intact. He impressed as intelligent despite his low level of education.
Dr Hall concluded that there did not appear to be any contribution to the respondent's offending from any treatable or serious mental illness.
Dr Hall diagnosed the respondent as having alcohol dependence, an anxiety disorder and an anti‑social personality disorder.
Dr Hall used some well recognised risk assessment tools in order to assess the respondent's risk of committing further offences. Making use of these tools Dr Hall concluded that the respondent was at a very high risk of committing further sexual offences. Dr Hall identified the factors contributing to the respondent's high level of risk to be as follows:
1.History of sexual violence;
2.Denial of offending and extreme minimisation;
3.Alcohol dependence;
4.Anti‑social personality structure with impaired social and emotional functioning and an extensive history of criminality;
5.Sexual preoccupation;
6.Poor self‑awareness;
7.Poor coping skills;
8.Negative attitude;
9.The likelihood of poor response to treatment; and
10.Prior supervision failure.
Dr Hall expressed the opinion that if the respondent was to reoffend the kind of sexual violence that he would most likely commit would be penetration or attempted sexual penetration. He stated that the respondent's likely victims would be acquaintances or strangers rather than close family members. He stated that the respondent's likely motivation for offending would be that of sexual gratification which the respondent was unable to delay. He stated that the respondent's victims would most likely experience terror. He considered that it was certainly possible that the respondent's sexual violence could escalate to serious or life‑threatening violence particularly due to fear of discovery, or due to alcohol abuse and the propensity of alcohol to produce disinhibition and impaired consequential thinking.
Dr Hall was of the opinion that based on the respondent's past history if he was to reoffend he would most likely do so within one to two years. Dr Hall also opined that the risk that the respondent posed would be chronic into the future, and that it was unlikely that there would be a rhythmicity or periodicity to the respondent's offending which was most likely to occur sporadically and opportunistically.
Dr Hall was of the view that the respondent's denial of his offending would preclude the respondent from participating in available treatment programs and from making significant progress with respect to understanding his offending cycle.
In Dr Hall's view the respondent's offending was strongly linked to his alcohol use as was the risk of him reoffending in the future. He pointed out that alcohol use is a highly dynamic risk factor for sexual offending and that consequently there is always hope that some shift will occur in relation to an offender's denial of an alcohol problem.
Dr Hall stated that although the respondent was at a high risk of offending at the time of the assessment, it was a very difficult task, and possibly an inappropriate one, to attempt to extrapolate that risk to a time when the respondent would otherwise be released from custody in respect of his sentence which may be of some significant duration. In Hall's view it was not beyond the realms of possibility that a significant shift in the respondent's attitude for his alcohol use could occur within the relevant time frame. Dr Hall considered that if that were to occur and to occur genuinely and robustly, the respondent's risk of reoffending in the future would reduce significantly. Dr Hall also noted that the respondent's physical health might deteriorate significantly during the course of his prison term which would impact upon his risk level at the time of release. Dr Hall therefore advised that it would be necessary to reassess the respondent's attitudes in relation to substance abuse in the future, as well as his health status, in order to make any meaningful or reliable assessment of his risk at that time.
Dr Hall foreshadowed that the respondent would be made the subject of an application by the DPP under the Act prior to the completion of his sentence and that psychiatric reports obtained as part of that process would provide an excellent opportunity to reassess the respondent's risk and any shift in dynamic risk factors.
Extended pre‑sentence report
Mr Ken Richards, from the Prison Based Unit Community and Youth Justice section of the Department of Corrective Services, prepared an extended pre‑sentence report dated 21 June 2010. Mr Richards' report reveals the following.
Mr Richards interviewed the respondent on 6 July 2010.
The respondent did not deny that sexual activity had taken place between himself and the victim. Rather, he maintained that the sexual activity was consensual.
The respondent had never been sentenced to a community‑based supervision order. In Mr Richards' view this was possibly attributable to the respondent's generally antagonistic attitude towards any form of authority.
The respondent had a well‑documented record of failing to acknowledge his culpability and attempting to accuse his victims of lying and of making false claims regarding his offences. The respondent's refusal to take responsibility for his offending, both presently and in the past, has rendered him unable or unwilling to identify the core issues and triggers behind his offending.
The respondent had breached all previous parole orders by reoffending and receiving further imprisonment which resulted in the automatic cancellation of his orders. Three of the respondent's five parole orders were breached by him committing sexual offences.
The only program that the respondent had completed in relation to his sexual offending was a 12‑month Sex Offenders Program at Fremantle Prison in 1988. The respondent completed this program just prior to his release on a Work Release Order. Although there was no program completion report available, a pre‑sentence report that was completed on 24 August 1990 quoted the program coordinator as stating that the respondent had made some progress in terms of trying to make some changes in himself.
The respondent was assessed as suitable for a pre‑release Sex Offender Program in 1996. However, the respondent refused to participate in the program or to acknowledge that he needed to address his offending behaviour.
The respondent had a well recorded history of alcohol abuse and had acknowledged that he had drunk to excess to alleviate feelings of anxiety. His use of alcohol was closely linked to his sexual offences.
The respondent saw himself as a victim of the criminal justice system and appeared not to display remorse or empathy for his victims. He refused to accept that he was anything other than the wronged party in the offences and portrayed himself as the victim of persecution by authorities. He demonstrated little insight into his offending behaviour or the issues underlying his offending behaviour.
In Mr Richards' view, the respondent's poor response to previous supervision suggested that he was not interested in engaging with the Department of Corrective Services. Mr Richards considered that given the respondent's history of breaching past parole orders there did not appear to be any benefit to the respondent in further community supervision by way of parole in the short term.
Reports prepared in relation to the respondent's participation in programs while he has been serving his term of imprisonment for the index offences
Pathways Program - program completion report
On 26 July 2016 the respondent completed the Pathways Program at Casuarina Prison. The program completion report prepared by the program facilitators dated 4 October 2016 reveals the following.
The Pathways Program is a high intensity 100‑hour structured program which provides treatment to individuals who have a history of offending behaviour and substance use problems. It is an intensive, cognitive‑behavioural, skills‑based program and attends to both personal circumstances (events that led to criminal conduct and substance use) and intrapersonal processes (thoughts, emotions, beliefs and attitudes) that lead to criminal conduct and substance abuse. During the program participants also receive individual sessions.
The program facilitators considered that there appeared to be very limited factors that may prevent the respondent from returning to excessive alcohol and drug abuse and criminal conduct.
During the program the respondent remained cautious and guarded in his willingness to disclose in any depth his personal information. This resulted in him contributing minimally to group exercises and providing minimal information in his workbook/worksheet exercises.
The respondent's treatment needs based on the assessment of him were identified to be as follows:
1.Increasing the respondent's awareness of the link between his prior excessive substance use and his offending;
2.Increasing the respondent's awareness of the impact of anti‑social associates; and
3.Increasing the respondent's skills in managing and regulating diverse emotional states namely anger, aggression, stress, and impulsivity without using maladaptive coping strategies including substance use.
During the program the respondent presented as a quiet, polite and very guarded participant. The respondent struggled at times with some of the session content. He displayed frustration and would comment 'this does not really apply to me'. The respondent 'could appear to' demonstrate ambivalence in relation his alcohol and drug use and in relation to meeting his treatment needs.
The respondent was observed to have made limited gains in increasing his awareness of the link between his prior excessive substance abuse and his criminal offending. The respondent at times minimised, justified or shifted the blame towards others for his offences.
The respondent was able to identify some of his high risk situations, namely anti‑social peers, some family members, some music events and being offered illicit substances by some family members and anti‑social peers. He was able to identify some of the skills to deal with his triggers and cravings to prevent relapse, namely painting, playing the guitar, avoidant skills, relaxation skills (deep breathing) and finding a pro‑social family member for support.
The respondent demonstrated a greater, albeit still limited, awareness of the negative impacts of his anti‑social peers, anti‑social behaviour and consequential thinking.
The respondent's level of participation within the group activities, discussions and role playing was minimal even upon prompting.
The facilitators of the program observed that the respondent when challenged about his anti‑social behaviours at times minimised or justified his behaviours, or took on the victim stance (that is, blamed others for situations created by himself). The respondent did identify that his alcohol and drug abuse perpetuated his criminal offending on more than one occasion. He identified some of his high risk factors and stated that his plan would include avoiding engaging with former criminal peers, avoiding engaging with drug dealers, avoiding attending places associated with these anti‑social peers and anti‑social family members. The respondent stated that he felt confident implementing pro‑social activities such as his painting and playing the guitar to avoid recidivism. The facilitators considered that the respondent could benefit from additional support in developing further constructive and pro‑social strategies in regards to his cognitive skills of problem solving and decision‑making.
The respondent appeared to the facilitators to have made limited gains in increasing his skills in managing and regulating diverse emotional states such as anger, anxiety, stress and impulsivity. The facilitators also considered that the respondent appeared to have made limited gains in increasing his personal ability to manage these emotions without using maladaptive coping strategies including substance use. The respondent stated that in order not to relapse or go back into recidivism he felt that talking to someone, such as a trusted family member, could be helpful to support his needs. He stated that he would consider support from a professional counsellor. He also identified playing his guitar and painting as being things that could help regulate his emotions.
The respondent demonstrated some embarrassment and shame about his crimes. However, he also exhibited a lack of empathy, lack of remorse and a lack of guilt for his victims.
The facilitators considered that the respondent could benefit from additional support in developing further constructive and pro‑social strategies in managing his emotional state.
The respondent completed a comprehensive relapse prevention plan to assist him after his release from prison.
The respondent presented as motivated to avoid mixing alcohol and pills and reoffending. With assistance he was able to develop a self‑management plan which outlined the skills and strategies he would use to assist him to achieve his treatment goals in order to prevent future relapse and recidivism. The respondent stated that he felt confident in seeking support from pro‑social family members and support from professional services to assist him with his unresolved anger, anxiety and grief and loss issues. He also expressed confidence in seeking support for his alcohol and drug abuse by counselling through an external agency such as the Aboriginal Alcohol and Drug Service.
The facilitators observed the respondent to have gained very limited coping strategies. They considered that any further interventions that continue to challenge the respondent's outstanding treatment needs is likely to be beneficial for his behavioural change.
Based on the respondent's self‑reporting and the facilitators' observations during the program, it was recommended that the following be implemented to address and manage the respondent's risk of reoffending:
1.Regular urinalysis as required;
2.Follow‑up alcohol and drug abuse counselling to assist with relapse prevention and high risk situations;
3.Engagement in other counselling to assist with conflict resolution, assertiveness skills, emotional regulation and mental health issues;
4.Cultural counselling to address past trauma and grief and loss issues; and
5.Involvement in educational or leisure activities to reduce the potential for boredom.
Intensive Sex Offender Treatment Program - program completion report
On 6 November 2017 the respondent completed the Intensive Sex Offender Treatment Program (ISOTP) at Bunbury Regional Prison. The program completion report prepared by the program facilitators dated 18 January 2018 reveals the following about the program and the respondent's participation in the program.
The ISOTP targets high risk and high need male offenders. Participants focus intensively on their sex offending behaviour (criminogenic needs) and victim issues. They identify offence pathways and develop detailed self‑management plans to assist them to reduce their risk of offending.
The respondent was assessed as requiring the ISOTP on 22 September 2015 following the assessment of the risk of him committing further offences using the Static‑99R actuarial risk assessment tool. The respondent received a score which placed him in the high risk category for being charged with, or convicted of, another sexual offence.
The respondent was also assessed using the Stable 2007 risk assessment tool. The assessment of the respondent using the Stable 2007 tool revealed the existence of a number of stable dynamic risk factors that required treatment, namely his lack of capacity for stable relationships, hostility towards women, lack of concern for others, impulsivity, poor problem‑solving skills, negative emotionality, high sexual preoccupation, deviant sexual preference and poor cooperation with supervision.
During the program the respondent explained that the majority of his offending occurred when he was inebriated as a result of him using a cocktail of alcohol and medication, and that he would then find himself in 'bad situations'. The respondent indicated that he struggled to understand how or why he offended. He stated that he thought that his offending behaviour was a means of escapism, or a form of retribution against others or the result of a miscommunication between the parties. The respondent also identified his early childhood experiences as being influential in his sexual and violent offending behaviour. He minimised his actions stating that some of his early offences were just him acting out behaviours that he had witnessed elsewhere.
Based on the information that the respondent provided the following targets for treatment were identified:
1.The respondent's anti‑social personality disorder;
2.The respondent's distorted views of women, his adversarial sexual beliefs, his anti‑social attitudes and his view that he was at a low risk of reoffending;
3.The respondent's poor emotional regulation, poor coping and problem‑solving skills and emotional dysregulation;
4.The respondent's intimacy deficits, lack of relationship skills, maladaptive attachment style and emotional loneliness;
5.The respondent's feelings of sexual entitlement; and
6.The respondent's low self‑esteem.
The respondent was able to grasp the concept of attitudes and beliefs in an appropriate and understanding manner. The respondent identified as having distorted views on authority, violence, sex, women, alcohol and drugs, and racism. He was, however, able to challenge his distorted thinking on multiple occasions during the program. This was especially due to the respondent's 'self‑reported actualisation in perspective taking and self‑awareness' which the respondent attributed to something that he had gained from the program.
The respondent attributed a large portion of his attitudes to his early experiences, especially his childhood and experiences in institutions when he was a teenager. He recognised that through the sexual abuse that he experienced he developed beliefs that it was normal and okay to act out sexually even when this was not consensual.
In the facilitators' view the respondent's rigid anti‑social, anti‑authoritarian beliefs and hostility towards women were demonstrated throughout his participation in the program by behaviour that the respondent reportedly engaged in within the prison environment but outside of the program.
A persistent theme portrayed by the respondent throughout his involvement in the program was poor self‑regulation which resulted in him often resorting to the use of alcohol and abusing medication. The respondent was able to link being under the influence of alcohol to his offending behaviour and recognised that alcohol impacted on his general lifestyle negatively. The respondent was able to identify that he would use alcohol and substances as a form of coping due to feeling overwhelmed and powerless.
The respondent was able to establish the links between the use of alcohol and substances, associating with negative peers, being inebriated, being involved in arguments and fights, being placed in high risk situations and committing offences.
The respondent was able to identify several positive strategies to 'manage his coping in the future'. The respondent spoke about being more open and willing to engage with his support networks in the future. He also highlighted that he manages his emotions through his creativity in painting, by playing his guitar and by walking. The facilitators considered that the respondent would need continued support to further develop and rehearse the gains that he had made while on the program.
The respondent's contribution to the 'feelings check' which encouraged participants to understand and explore feelings that they were experiencing, was 'limited' for the duration of the program.
The respondent was unwilling to disclose his sexual issues. It was evident to the program facilitators that the respondent's early exposure to sexuality including sexual abuse had led to the respondent having distorted perceptions of healthy sexuality and being confused about what consensual sexual practice involves.
The respondent was able to identify several sexual distortions, including that he believed the victims to be of legal age due to how they presented themselves and being at pubs and drinking alcohol. He spoke about how he used sexual encounters as a method of experiencing pleasure in the 'here and now' as a means of escapism.
The respondent indicated that he viewed himself as being at a minimal risk of reoffending due to his age, low libido, and absence of thoughts about sex due to his long periods of incarceration. He expressed the belief that he could live without sex in the future.
The facilitators recommended that the respondent's sexual issues remained an outstanding treatment need and that the respondent would need to engage in further clinical interventions to address ongoing sexual issues as he was unable or unwilling to address them during the program.
The respondent developed a self‑management plan by which he indicated that he planned to manage his high risk situations by using Aboriginal medical and support services, talking to counsellors, being open and honest in communications, spending time with his sister and family members, joining a community art group, painting, playing guitar, exercising regularly, engaging in breathing exercises and making positive self‑statements to challenge negative thoughts. He identified his goals as living an offence‑free life, working on his relationship with his wife, rebuilding family relationships, maintaining a healthy lifestyle, establishing himself in the art industry, completing all orders and eventually moving out of Perth to a property located near the bush. His plan was to reside with his wife upon release who lived nearby to his other significant support, namely his sister.
The facilitators considered that the respondent's recognition of his maladaptive styles of attachment, his poor emotional coping and self‑regulation, his behavioural management issues and his poor communication and relationship skills could be considered as treatment gains, but that these gains would require ongoing rehearsal and practice. They identified the respondent's outstanding treatment targets to include addressing his sexual issues and working through feelings associated with past issues such as neglect, low self‑esteem and feelings of rejection.
Although the respondent presented as contemplative about his offending behaviour, his continued inappropriate behaviour outside of the program suggested to the facilitators that he would need ongoing support to change.
The respondent acknowledged that there would be adjustment issues upon his release in the community. He vocalised that he intended to utilise all professional supports available to him to live an offence‑free lifestyle.
According to the facilitators, the respondent met all program objectives, made some treatment gains, and was observed to gain a greater understanding of the factors underlying his offending. They considered that he would need ongoing support in rehearsing the skills he had learnt. They considered that the respondent had not made gains in the area of sexual issues and that this therefore remained an outstanding treatment need.
The respondent's performance in the program was noted to be consistent. The respondent presented as a motivated and engaged man who wished to make positive changes in his life.
The facilitators considered that in order to live an offence‑free life the respondent would require ongoing professional support in the community.
Decision
The respondent has a very significant criminal record. From the age of 12 through to the age of 55 he has committed many sexual or sexually motivated offences against females and males of varying ages. While all of his offences have been serious a good number have been extremely serious. Further, in committing many of his offences the respondent has engaged in threatening, intimidatory and/or violent behaviour. He has demonstrated no regard for his victims.
Prior to being sentenced for the index offences the respondent was assessed by Dr Hall to be at a very high risk of committing further sexual offences. Further, when the respondent's risk of reoffending was again assessed in September 2015 as part of determining whether he required the ISOTP, he was found to be at high risk of being charged with, or convicted of, another sexual offence. The assessment at this time also revealed that he had a number of stable dynamic risk factors that needed to be addressed.
The respondent appears to have made some gains through his participation in the Pathways Program and the ISOTP. In particular, it appears that he has gained an appreciation of a number of the factors that have contributed to him committing offences, specifically his alcohol abuse, his association with negative peers and his difficulties managing emotions and stress. Further, he has at least articulated a management plan to help him address some of these factors and hence reduce the risk of him reoffending on his release. His articulated plan includes avoiding negative peers, spending time with pro‑social family members, engaging in available counselling and engaging in pro‑social activities such as playing his guitar and painting.
Despite the gains (albeit limited) that the respondent has made by participating in the Pathways Program and the ISOTP, it is clear that his participation in these programs has been somewhat guarded and restrained, and has not resulted in him addressing, or gaining any insight into, his sexual issues and how such issues may have contributed to his offending. In addition there would appear, it seems, to be considerable doubt as to whether the respondent's participation in the programs has, despite his articulation of a management plan, actually resulted in him increasing to any significant degree his ability to either abstain from alcohol use or to manage his emotions without resorting to maladaptive coping strategies (such as alcohol use). Further, it is clear that the respondent has, from the time that he was assessed by Dr Hall, demonstrated a lack of insight into the seriousness of his offences, a willingness to minimise the seriousness of his offences, a willingness to engage in cognitive distortions in relation to his offending conduct, a refusal to accept responsibility for his offences, a willingness to blame his offending on his victims, and a lack of empathy for his victims. Finally, the respondent appears to have an unduly optimistic view of his ability to self-manage his risk of reoffending in the community.
In light of the respondent's significant history of violent sexual offending, the assessments of the risk of him committing further sexual offences at the time that he was dealt with for the index offences and at around the time that he commenced his participation in the ISOTP, and the matters to which I have referred in the preceding paragraph, I am satisfied that there are reasonable grounds for believing that the court might, under s 7(1) of the Act, find that the respondent is a serious danger to the community; that is, might find that there is an unacceptable risk that if the respondent is not subject to a continuing detention order or a supervision order he would commit a serious sexual offence. 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 will therefore, pursuant to s 14 of the Act, 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 Derrick28 MAY 2019
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