The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 4]
[2017] WASC 100
•10 APRIL 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PAUL DOUGLAS ALLEN also known as PAUL ALAN FRANCIS DEVERELL [No 4] [2017] WASC 100
CORAM: HALL J
HEARD: 15 MARCH 2017
DELIVERED : 15 MARCH 2017
PUBLISHED : 10 APRIL 2017
FILE NO/S: MCS 21 of 2006
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PAUL DOUGLAS ALLEN also known as PAUL ALAN FRANCIS DEVERELL
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders - Review - Whether respondent remains a serious danger to the community - Whether respondent should be released on a supervision order or whether the continuing detention order should be affirmed
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
Applicant: Mr M T Trowell QC
Respondent: Mr D J McKenzie
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: David McKenzie Legal Pty Ltd
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357
Director of Public Prosecutions for Western Australia v Allen [2006] WASC 160
Director of Public Prosecutions for Western Australia v Allen [No 2] [2009] WASC 393
The State of Western Australia v Latimer [2006] WASC 235
HALL J: The respondent is the subject of a continuing detention order made by Allanson J on 14 March 2016. On 15 March 2017 a hearing for the review of that detention order was held. At the conclusion of that hearing I made an order that the continuing detention order would be affirmed. I gave brief oral reasons and said that more detailed written reasons would be published in due course.
Object of this review
A person who has been detained in custody under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) must be the subject of a review. The first review is to occur after one year and subsequent reviews are to occur every two years thereafter: s 29 DSO Act.
The purpose of a review is to determine whether the person continues to be a serious danger to the community and, if so, whether the appropriate order is continued detention or release on supervision: s 33 DSO Act. If the person is no longer a serious danger to the community, the detention order must be rescinded. If the person continues to be a danger, consideration must be given to whether detention or release on supervision is appropriate. In respect of the latter decision, the paramount consideration is the need to ensure adequate protection of the community: s 33(3) DSO Act.
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending: it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community, then the continuing need for detention must be considered: Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357.
It is a significant matter to deprive a person of his liberty, not for something he has done but for something that he might do in the future. In order to justify detention on these grounds, the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability: s 7(2) DSO Act. Such a finding requires satisfaction that there is an unacceptable risk the person would commit a serious sexual offence if not placed under a supervision order or detained.
The risk of reoffending may change over time. It may be affected by age, health and the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
The justification for making a detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, merely a welfare check: they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235; Director of Public Prosecutions (WA) v Decke [2009] WASC 312.
Background
Between 1998 and 2001 Mr Allen committed 12 offences of a sexual nature against young children. The children concerned were between the ages of 4 and 10 years and the respondent at that time was aged between 18 and 21 years. The facts of the offences are set out in the judgment of Blaxell J in Director of Public Prosecutions for Western Australia v Allen [2006] WASC 160.
While Mr Allen was serving a term of imprisonment for the last of these offences an application was made for orders under s 14 and s 17 of the DSO Act. On 12 March 2007 Blaxell J placed Mr Allen on a supervision order. The order was made subject to conditions designed to minimise the risk of reoffending. One of the conditions related to the taking of anti‑libidinal medication.
In 2009 Mr Allen committed 14 breaches of the supervision order. A summary of the facts relating to those breaches can be found at par 10 ‑ 25 of the judgment of Blaxell J in Director of Public Prosecutions for Western Australia v Allen [No 2] [2009] WASC 393. The breaches included instances where police had made unannounced visits to Mr Allen's home and found him to be in possession of videos, DVD's and newspaper and magazine cuttings that contained images of children. Although the images were not indecent, Mr Allen admitted using them for the purposes of sexual arousal. Amongst the conditions of the supervision order was one that prohibited Mr Allen from collecting or obtaining images of children in any format, whether indecent or not, unless such possession was approved by a corrections officer or an officer of the WA Police. Such approval had not been given. Other breaches related to using the internet to access pornographic images, including paedophilic internet sites relating to young boys. Mr Allen also missed appointments for medical testing of his testosterone levels and when questioned admitted that he had not taken his anti‑libidinal medication. These breaches resulted in Mr Allen being charged with offences contrary to s 40A of the DSO Act. Contravention proceedings pursuant to Division 4 of the DSO Act seeking an amendment to the conditions of the supervision order were also brought by the DPP.
At the conclusion of those contravention proceedings Blaxell J noted that Mr Allen had spent three months in custody and that the proposed amendments provided a reasonable level of confidence that he would be compliant with an amended supervision order. His Honour noted that Mr Allen was at that time still a young man and that the best way of protecting the community in the long term was to allow his psychological treatment to take place in the community where it was likely to have maximum effect. Mr Allen was then released on an amended supervision order on 10 December 2009. The expiry date of that amended order was 9 December 2014.
On 4 June 2010 the supervision order was again amended as a result of material containing images of children being located in Mr Allen's home. On 2 June 2011 and 12 July 2012 he was again convicted of breaches of the requirements of the order.
In September 2013, Mr Allen was charged with failing to comply with a reporting obligation under the Community Protection (Offender Reporting) Act 2004, four offences under s 40A of the DSO Act for contravening conditions of a supervision order and possessing child exploitation material contrary to s 220 of the Criminal Code. He was remanded in custody on 25 September 2013. Later, on 3 October 2013, he was charged with another offence of contravening the supervision order. He pleaded guilty to all charges and on 8 August 2014 he was sentenced in the District Court to imprisonment for 21 months for the offence of possessing child exploitation material. This was material that he had collected over a period of about 18 months. On 12 August 2014, he was sentenced in the Magistrates Court for the other offences to a total effective sentence of 6 months cumulative on the term imposed in the District Court.
Mr Allen was due for release on 24 December 2015, however prior to that date, the DPP brought new contravention proceedings under Division 4 of the DSO Act. The application sought either an order for continued detention or for an amended supervision order. The application was based upon the breaches for which Mr Allen had been convicted in the Magistrates Court on 12 August 2014.
On 14 March 2016, Allanson J made an order that Mr Allen be detained pursuant to s 23(1)(b) of the DSO Act. His Honour found that Mr Allen continued to pose a risk of reoffending and that there was a demonstrated need to protect members of the community from that risk. Whilst Mr Allen did not offend directly against any child whilst on supervised release, he had demonstrated a continued sexual interest in young boys and a readiness to engage in serious criminal acts as a result of that interest.
In considering whether there were conditions which would enable the risk of reoffending to be adequately managed in the community, Allanson J referred to the possibility that Mr Allen would recommence anti‑libidinal medication. At that time Mr Allen had expressed a strong opposition to resuming such treatment. The evidence available at that time suggested that anti‑libidinal medication was an appropriate means for controlling the risk of reoffending. His Honour also noted that at that time there was no suitable accommodation available.
Evidence on this review
At the hearing of this review the State tendered a book of materials. The State also tendered a number of transcripts and books of materials tendered at earlier hearings. The book of materials prepared for this hearing included the following:
(1)prison records;
(2)a Department of Corrective Services individual management plan dated 16 September 2016;
(3)medical records;
(4)a treatment progress report by Dr Dylan Galloghly, senior clinical and forensic psychologist dated 15 February 2017;
(5)a community supervision assessment report by Ms Jane Henshall, a senior community corrections officer with the Department of Corrective Services dated 1 October 2015;
(6)a psychiatric report by Dr Peter Wynn Owen dated 12 March 2017; and
(7)two blood test results taken on 10 February 2016 and 30 June 2016.
The applicant called Dr Wynn Owen, Dr Galloghly and Ms Henshall to give oral evidence.
Mr Allen elected not to give or adduce any evidence on the application.
Prison and medical records
During the last 12 months Mr Allen has been the subject of a number of prison incidents. The most significant of these occurred on 4 July 2016 and 16 October 2016. On 4 July 2016 his cell was searched. Prior to the search he was asked whether he had anything to declare and only made reference to a small piece of metal that he used in his craft work. During the search a number of publications were found that had various pages marked that showed images of young children. Also found were a number of cut out images of young children from magazines. The images were not of a pornographic nature. Mr Allen admitted that all of the items belonged to him.
A second search on 16 October 2016 also resulted in the location of a number of items of unauthorised property. Amongst them were 'various pictures, drawings and notes regarding children that are inappropriate'. Again, it was not suggested that these images were pornographic in nature, rather they were inappropriate because Mr Allen was believed to be using them to maintain his continuing sexual preoccupation with children.
The medical records do not indicate any serious health issues, though Mr Allen continues to have intermittent thoughts of self‑harm. He has been able to control such thoughts by finding distractions in leisure activities and work. He has also reported being more motivated to improve himself as a result of the positive influence of a peer support worker. In the past he has taken anti‑libidinal drugs, however he has not done so in the last 12 months. Rather, he has been prescribed an antidepressant, being the serotonin specific reuptake inhibitor (SSRI) Fluvoxamine. The possible impact of this drug on reducing libido was referred to by Dr Wynn Owen and will be canvassed below. The blood tests show that Mr Allen's testosterone was within normal range at the time those tests were done.
The individual management plan for Mr Allen notes that staff have reported that he is always polite and respectful towards them. He follows the rules and instructions as required and is not considered to be a management concern. He appears to interact well with the other prisoners and he maintains his cell and personal hygiene to a good standard. He is employed as a leather shop worker and receives a level 2 gratuity. His workmanship has been described as excellent and he is said to be always ready to help and teach other co‑workers.
Dr Wynn Owen
Dr Wynn Owen interviewed Mr Allen in March 2017 for the purposes of preparing a report. He has previously interviewed Mr Allen in 2014.
Dr Wynn Owen noted that Mr Allen had previously taken the anti‑libidinal hormonal agent Androcur. During this period Mr Allen self‑reported a reduction in libido, reduced erections and reduced frequency of masturbation. There was no record of adverse side effects. Hormone assay results for the period 2006 to 2013 showed that the level of testosterone suppression was highly variable. This suggested poor medication compliance or the possible use of agents such as alcohol, which alter the rate of metabolisation of the hormone. A normal or near normal testosterone level was recorded on a number of occasions.
In the past 12 months Mr Allen has not been treated with Androcur though he has been receiving Fluvoxamine, an antidepressant medication which is also believed to have anti‑libidinal properties. Mr Allen reported that his Fluvoxamine dose had been increased during the year and that he had noticed a reduction in sexual preoccupation, better management of image collecting and reduced frequency of masturbation. He reported that he no longer wished to consider hormonal anti‑libidinal treatment as he was concerned about the side effects.
Dr Wynn Owen noted that at the last hearing before Allanson J there had been some focus on the possible benefits of recommencing anti‑libidinal therapy. For the purposes of this review he had given further consideration to that question. He said that on the basis of self‑reporting there would appear to be some benefits in Mr Allen taking Androcur. However, he noted that the evidence around the efficacy of anti‑libidinal drugs is relatively limited. Where those drugs had been successful it had been in people with sexual deviance (and specifically paedophilic sexual deviance) and those who had a high libido. Mr Allen fits both of those characteristics. However, Dr Wynn Owen said that a study undertaken by the Cochrane Library in the United Kingdom in 2015 had reviewed the evidence for the efficacy of both hormonal agents and antidepressants in reducing libido. Although there were some studies in hormonal anti‑libidinals that showed good results, they were very poorly controlled studies which had not been replicated. Furthermore, the majority of those studies had occurred between the 1970's and the early 2000's. The Cochrane Library study casts doubt on whether the degree of research rigor in this area has been sufficient.
Dr Wynn Owen noted that there was even less empirical evidence to support the use of SSRI antidepressants as anti‑libidinals. Furthermore, he noted that the effectiveness of these drugs could only be measured by self‑reporting and that sex offenders were a cohort of people who were very unreliable self‑reporters. In any event, there is no way of quantifying the effect and even the self‑reports suggested that the effect could be variable.
Dr Wynn Owen continued to be of the view that Androcur was an appropriate treatment option and was preferable to SSRI antidepressant medication. However, in light of the Cochrane Library study he expressed this view with some reservations. He considered that Androcur was more likely to be effective than Fluvoxamine.
A significant issue for Dr Wynn Owen was Mr Allen's continued image collecting behaviour. Dr Wynn Owen said that it was surprising that in such a constrained environment as a prison and with full knowledge of his status as a dangerous sexual offender Mr Allen had continued to keep images of children in his cell. He said that this was an indicator of ongoing paedophilic interest and that the images also maintain and sustain that interest. This increases the likelihood of offending in the future. Mr Allen attributes some of his success in not committing contact offences during periods of time he has been in the community to the fact that he has been able to use images of children as an outlet for his sexual fantasy. Dr Wynn Owen said that it was highly unlikely that this was a protective factor, and he told Mr Allen this, but Mr Allen simply did not accept it. Dr Wynn Owen said that this mindset was problematic and would act to counter therapeutic intervention and risk reduction.
Dr Wynn Owen said that paedophilic thinking and behaviour is very much a part of Mr Allen's personality. This is something that was set prior to adolescence and has been present throughout his life. That makes it highly unlikely that change will be achieved in the future. This is further exacerbated by a lack of complexity in his understanding of how he can manage risk.
Dr Wynn Owen also had concerns about Mr Allen's post release plans. Mr Allen has said that he wishes to stay with friends with whom he has previously lived when in the community on a supervision order. He acknowledges that he was, for some years, in a sexual relationship with the male partner, but does not believe this would present any problems or result in stress. He has not looked into other accommodation options. Mr Allen has also previously engaged in mutual viewing of child pornography with the male partner. When living with these friends previously he was permitted by them to have unsupervised access to the internet.
Dr Wynn Owen utilised the Static 99 checklist of historical unchanging risk factors to determine the risk of reoffending. Mr Allen's score on this checklist placed him into a high risk category with an approximately 4 in 10 (or 39%) likelihood of sexual reoffending within five years of release.
Dr Wynn Owen also utilised the Risk for Sexual Violence Protocol (RSVP). This protocol requires the clinician to consider a number of factors related to the increased risk of sexual reoffending. These include the number and chronicity of offences, the early age at which the offender commenced their offending behaviour, whether psychological coercion was involved in the offending, attitudes that support or condone sexual violence, problems with self‑awareness, problems with stress or coping, sexual deviance, problems with intimate relationships, problems with employment, problems with treatment and problems with supervision. Mr Allen presents as having difficulties in a large number of these factors which increase the risk of sexual violence.
Dr Wynn Owen's conclusions were that notwithstanding extensive treatment intervention and very specific supervision conditions Mr Allen has been unable to modify his behaviour. While in detention he has continued to secrete images of children in his cell, notwithstanding full knowledge that not only is this not allowed but also will be treated seriously bearing in mind his status as a dangerous sex offender. At this juncture, it is considered to be unlikely that counselling will offer any risk mitigation. However, a structured behaviour management approach could be trialled. Mr Allen continues to present a high risk of serious sexual offending and his continued collecting of child images is a dynamical risk factor that elevates the risk of serious reoffending.
Dr Dylan Galloghly
Dr Galloghly reported that Mr Allen has attended approximately eight sessions of counselling with a psychologist, Mr Summerton. Dr Galloghly has spoken to Mr Summerton and was able to summarise any progress made in counselling. Mr Allen's collecting behaviour and general risk management plan have been the predominant focus of therapy. He has fluctuated between denial and acceptance of his collecting behaviour.
Mr Summerton has encouraged Mr Allen to diarise the antecedents of his collecting behaviour in order to gain insight into his own psychological processes. However, it is considered that Mr Allen has not participated sufficiently in this process and defaults to a state of denial. He also frequently expresses the view that he should be allowed to view images of children as long as he has no physical contact with them. He can articulate an understanding of consent but defaults to paedophilic intellectualised reasoning when he is stressed or emotionally aroused.
Mr Summerton has reported that Mr Allen has historically exhibited dependent behaviour. Accordingly, he has been encouraged to have greater independence and autonomy. Mr Summerton considers that this approach may have caused Mr Allen to make intermittent requests for a new therapist.
Dr Galloghly concluded that Mr Allen's status as a self‑acknowledged paedophile with a preference for young boys is unlikely to change in the near future. From a treatment perspective it would be preferable if Mr Allen showed insight into his tendencies and that he can manage his impulses. However, there appears to have been little change in his awareness of the issues underpinning his sexual offending and past failures to comply with orders.
Dr Galloghly did say that Mr Allen has demonstrated insight into risk factors associated with sexual reoffending and has improved his stress management techniques. He appears to be aware of the need to be occupied in pursuits that keep him busy and increase his sense of self‑worth. However, he continues to collect images of children and this appears to be an enduring characteristic. He is aware that he is compulsive in collecting and viewing images of children that are obviously sexually arousing to him. Efforts to address this issue in therapy have generally been rebuffed. Mr Allen is wary of reporting and working through his collecting behaviour. His reluctance to be vigilant in reporting and documenting this behaviour is said to be understandable in a prison context. However, this is the barrier to treating the behaviour and likely results in him being deceptive in general and in his therapeutic relationship with his counsellor.
Mr Allen has completed a significant body of treatment over the years and has insight into the issues associated with his history of sexual offending. The major ongoing issue is his compulsive proclivity to collect images of children. This is an enduring behaviour that has been resistant to change. Psychological treatment has reached something of a standstill.
Ms Jane Henshall
Ms Henshall is a senior community corrections officer with the community offender monitoring unit of the Department of Corrective Services. She prepared a report which considers, amongst other things, the availability of accommodation and community supports for Mr Allen.
Mr Allen has been assigned to the service provider Outcare. Accommodation under the supported accommodation programme operated by Outcare is subject to availability. There are a limited number of properties available and none were available at the time of the hearing. In these circumstances Mr Allen proposed to reside with his long term friends, referred to earlier.
Ms Henshall conducted a visit to the home of the friends on 31 January 2017. Mr Allen's friends, and the female partner's mother who also resides at the property, presented as knowledgeable in respect of Mr Allen's offending and expressed a desire to ensure that he complies with the conditions of any release order. Mr Allen's collecting behaviours, use of computers and the intent and his access to children were discussed in depth. When discussing Mr Allen's prior breaches the male partner stated that these were non‑contact and that no harm occurred, a view which was challenged by Ms Henshall. Subsequently, during a telephone conversation the male partner again stated he did not view the breach of the order conditions as an offence.
Ms Henshall notes that on a previous occasion when Mr Allen was released on a supervision order he resided with these friends, who undertook to supervise his internet use. However, the male friend left Mr Allen unsupervised on the internet which enabled Mr Allen to access websites that displayed images of children. Although the friends have said that they will be more strict with Mr Allen on any future release, concerns remain in regard to how protective any accommodation arrangement would be given the past history and the male partner's view of past breaches of the supervision order.
The proposed accommodation is a three bedroom villa located in a complex of 12 villas. A desktop analysis conducted by the West Australia Police sex offender management squad revealed that there were numerous areas of concern within a 2 km radius of the proposed residence. Within easy walking distance there are public facilities including a youth activity area, a cinema complex, a library, shopping precincts, parks, sporting complexes and an aquatic centre and a sporting arena that has a crèche and runs programmes and activities for children. There are also two skate parks used for competitions and skate clinics. Further, there are 11 schools in the immediate vicinity which cater for students ranging from early childhood to young adults. Information also revealed that there are families with children living in the immediate environs, in particular in the same unit complex as the proposed residence.
Findings
It is clear on the evidence that Mr Allen remains a serious danger to the community. This was not disputed at the hearing. It is equally clear that the risk of reoffending cannot be adequately managed in the community on a supervision order at this stage.
There has been some limited progress in counselling in the last 12 months, but this has reached an impasse due to Mr Allen's entrenched image collecting behaviour. Whilst he appears to have some insight into sorts of behaviour that will increase his risk of reoffending, he continues to express ambivalent views about collecting images of children. He continues to maintain a belief that this behaviour can be protective, even when challenged. The expert evidence is the contrary; that rather than being protective this behaviour exacerbates the risk of sexual reoffending.
Mr Allen has staunchly refused to resume the hormonal anti‑libidinal drug Androcur. He maintains that the antidepressant SSRI medication has been effective in reducing his libido. However, his claims in this regard must be treated with great caution. This is both because of the scant evidence of efficacy of this medication in reducing libido and also because his self‑reporting is likely to be unreliable. The fact that he has continued to collect images of children for sexual gratification tends to support the view that the SSRI medication has not been adequate in reducing libido.
There is no suitable accommodation in the community. As I have noted on previous occasions, accommodation is more than simply somewhere to live. The place where the person resides is an important factor in assessing the risk of reoffending. In this case, not only is there no suitable accommodation, the accommodation proposed by Mr Allen has a number of characteristics that are likely to raise rather than lower the risk of reoffending. The friends with whom he proposes to reside have at least permitted, if not condoned, past breaches of a supervision order (including accessing child pornography). The fact that Mr Allen would propose living again in this environment displays a lack of insight.
Conclusion
I am satisfied that Mr Allen remains a serious danger to the community. I am also satisfied that his risk of reoffending cannot, at present, be adequately managed if he is released on a supervision order. He has made minimal progress in the past year and has not yet reached a stage where release is a practical option. I am satisfied that there are no conditions that could be imposed at present that would reduce to an acceptable level the risk that he could reoffend by committing further serious sexual offences.
For those reasons, at a hearing of this matter on 15 March 2017 I affirmed the continuing detention order.
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