The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5]
[2019] WASC 359
•7 OCTOBER 2019
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 5] [2019] WASC 359
CORAM: HALL J
HEARD: 21 MARCH 2019, 7 JUNE 2019 & 13 SEPTEMBER 2019
DELIVERED : 13 SEPTEMBER 2019
PUBLISHED : 7 OCTOBER 2019
FILE NO/S: DSO 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 should be released on a supervision order or whether the continuing detention should be affirmed
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Representation:
Counsel:
| Applicant | : | Mr B Meertens |
| Respondent | : | Mr D J McKenzie |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | David McKenzie Legal Pty Ltd |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Allen [No 2] [2009] WASC 393
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 Decke [2009] WASC 312
The State of Western Australia v Allen [No 4] [2017] WASC 100
The State of Western Australia v Latimer [2006] WASC 235
HALL J:
A continuing detention order was made in relation to the respondent by Allanson J on 14 March 2016. On 13 September 2019 I completed the second review of that detention order. At the conclusion of the hearing I made an order rescinding the continuing detention order and making a supervision order. I gave brief oral reasons and said that more detailed written reasons would be published in due course.
In summary, since the last review in 2017 there have been significant changes in circumstances. These have included improved engagement with counselling, a changed attitude to problematic behaviours, availability of suitable accommodation and acceptance of anti‑libidinal medication. The expert evidence supports a conclusion that, in combination, these changes mean that the respondent can now be effectively managed in the community. That is to say, the protection of community from the risk that the respondent would commit serious sexual offences in the future can be sufficiently assured by a supervision order.
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. A 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.
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.
A court cannot make a supervision order unless it is satisfied on the balance of probabilities that the person will substantially comply with the standard conditions of the order: s 33(4) DSO Act. The onus of proof as to substantial compliance with the standard conditions is on the person: s 33(5) DSO Act. The standard conditions in relation to a supervision order are those contained in s 18(1): see the definition of standard condition in s 3.
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, rather 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 better managed in the community, then the continuing need for detention must be considered.[1]
[1] Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357.
The risk of reoffending may change over time. It may be affected by age, health or 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 the prison authorities to facilitate change by offering programs 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, rather 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.[2]
[2] The State of Western Australia v Latimer [2006] WASC 235 [49], Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 [15].
Background
A summary of Mr Allen's criminal history and response to orders made under the DSO Act was included in my judgment on the last review.[3] For the sake of completeness I will repeat that review here.
[3] See The State of Western Australia v Allen [No 4] [2017] WASC 100 [10] ‑ [18].
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 [10] ‑ [25] of the judgment of Blaxell J in Director of Public Prosecutions (WA) 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, DVDs 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 the 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 an offence of 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 suggested that anti‑libidinal medication was an appropriate means of controlling the risk of reoffending. His Honour also noted that there was no suitable accommodation available.
At the conclusion of the last review I found that there had been only limited progress in counselling in the previous 12 months. In particular counselling had reached an impasse due to Mr Allen's continued conduct in collecting images of children and his false belief that this behaviour was protective rather than exacerbating the risk of future sexual reoffending. He had also maintained his refusal to resume anti‑libidinal medication and expressed the belief that antidepressant SSRI medication had been effective in reducing his libido, despite evidence to the contrary. There was also an absence of suitable accommodation in the community. For those reasons I was satisfied that the risk of reoffending could not, at that time, be adequately managed if Mr Allen was released on a supervision order.
The present application
On 12 November 2018 the State filed an application seeking that a review of the respondent's detention be conducted as soon as practicable after 14 March 2019. For the purposes of the review reports were ordered from Dr Peter Wynn Owen, a consultant forensic psychiatrist, and Ms Sarah Ballantyne, a senior counselling psychologist.
The review hearing commenced on 21 March 2019. At that hearing the State tendered a book of materials which included the following:
(1)Prison records;
(2)Department of Corrective Services individual management plan dated 12 September 2018;
(3)Medical records;
(4)A psychiatric report by Dr Peter Wynn Owen dated 3 March 2019;
(5)A treatment progress report by Ms Sarah Ballantyne dated 22 February 2019; and
(6)A community supervision assessment report by Mr Kyle Jarvie, a senior community corrections officer with the Department of Corrective Services dated 22 February 2019.
There were a number of outstanding issues on 21 March 2019 which necessitated the adjournment of the review hearing. In particular, the police had not yet completed a review of the proposed accommodation and a medical assessment of whether Mr Allen could resume anti‑libidinal medication had not yet occurred. Dr Wynn Owen had recommended that Mr Allen resume such medication and Mr Allen had resiled from his previous refusal and had agreed to take it. However, before a doctor could prescribe the medication a number of medical tests needed to be obtained, including kidney and liver function tests and a bone density test. Dr Wynn Owen considered that anti‑libidinal therapy was an effective and useful adjunct to counselling treatment and was relevant to any assessment of the risk of reoffending and whether that risk could be managed in the community.[4] For these reasons an adjournment of the hearing was sought by Mr Allen so that these options could be properly explored.
[4] ts 21, 35.
The hearing resumed on 7 June 2019. By that date the necessary tests had been completed and the anti‑libidinal medication had been prescribed by a doctor, however the first dose of the medication had only been administered two days earlier, that is on 5 June 2019. Dr Wynn Owen gave further evidence at the resumed hearing that a period of three to six months was required in order to monitor the effect of the medication.[5] During this period Mr Allen would undertake regular blood tests to determine whether his testosterone had fallen to the desired level and to also monitor any adverse side‑effects of the drug. For this reason a further adjournment was sought by Mr Allen.
[5] ts 83, 91.
The review hearing resumed on 13 September 2019. On that date I received further evidence from Dr Wynn Owen and from Mr Jarvie. This evidence was to the effect that Mr Allen's testosterone levels had been effectively suppressed.[6] There were some fluctuations in levels towards the end of each six week dose cycle but Dr Wynn Owen was satisfied that this could be prevented by increasing the frequency of dosage to every four weeks. He had made a recommendation in that regard and had received confirmation from Mr Allen's treating doctor that that change would be implemented.[7]
[6] ts 108.
[7] ts 109.
Mr Allen elected not to give or adduce any evidence on the review hearing.
Prison and medical records
The prison records for the period since the last review show that Mr Allen does not generally come to the negative attention of prison staff. He follows prison rules and staff directions and generally interacts well with fellow prisoners. He has been employed in the laundry receiving level 3 gratuities and works to a high standard with minimal supervision. He assists others when required.[8]
[8] Exhibit 1: Book of Materials (Exhibit 1), 119 – 120.
There has been one formal incident since the last review, being on 14 April 2017. This involved a verbal altercation with another prisoner. He received a loss of privileges of seven days in regard to this incident. The records also refer to a number of occasions when there were concerns regarding the possibility of self‑harm.[9]
[9] Exhibit 1, 120.
The only other matters of relevance in the prison records relate to cell searches. One of the features of Mr Allen's past behaviour has been collecting images of children from newspapers and magazines. Items of this nature have been found in his cell in the past when cell searches have been conducted. In the period since the last review cell searches were conducted on 17 September 2017, 31 January 2018, 3 May 2018, 16 September 2018 and 23 July 2019. On 17 September 2017 no relevant material was found. On 31 January 2018 multiple newspaper clippings with images of children were found. On 3 May 2018 some written material was found in which Mr Allen had recorded his thoughts about attraction to young boys. On 16 September 2018 some material in the form of a diary was found, however this was considered to be in accordance with a task that Mr Allen had been given by his treating psychologist. There was also a picture of a young child from a magazine or newspaper. On 23 July 2019 no pictures or images of children were located.[10] Some other items were taken and referred to Dr Wynn Owen and Ms Ballantyne, neither of whom considered that they were of great significance.[11] This other material consisted of some cartoon images, a list of book titles and handwritten notes of Mr Allen's thoughts and questions regarding his treatment and the need to identify and avoid high risk situations.
[10] Exhibit 1, 120, Exhibit 11: Supplementary Book of Materials (Exhibit 11), 66, 68.
[11] Exhibit 12: Email from Dr Wynn Owen regarding items found in Mr Allen's cell, ts 112.
The medical records do not indicate any serious health issues. As noted earlier following the last review Mr Allen had expressed a willingness to resume anti‑libidinal therapy. He commenced treatment with Depo‑Ralovera (medroxyprogesterone acetate) as an intermuscular injection on 5 June 2019. Since that time he has received six weekly injections of Depo‑Ralovera at 150 mg (the doses have been received on 5 June 2019, 22 July 2019 and 2 September 2019). During this period his testosterone levels have been monitored fortnightly. The results are as follows: 4 July 2019 ‑ 2.2 nmol/dL; 18 July 2019 ‑ 5.2 nmol/dL; 1 August 2019 ‑ 3.2 nmol/dL; 15 August 2019 ‑ 1.6 nmol/dL; and 29 August 2019 ‑ 6 nmol/dL.[12]
[12] Exhibit 11, 38 ‑ 53.
The significance of these results is explained below in the summary of the evidence of Dr Wynn Owen. Monitoring of any adverse side effects has shown that Mr Allen is tolerating the medication well.
Dr Wynn Owen
Dr Wynn Owen interviewed Mr Allen on 13 February 2019 for the purposes of preparing a report. He has previously interviewed Mr Allen in 2014 and 2017.[13]
[13] ts 10.
Dr Wynn Owen noted that Mr Allen had continued individual counselling with Mr David Summerton, a clinical psychologist, and that a number of changes had been reported over the past two years. These included that Mr Allen had sustained good engagement with therapy and was less sexually preoccupied with fewer sexual themes in discussions during counselling. Mr Allen no longer maintains the position that collection of images of children is helpful in managing his deviant sexual thinking and has reported collecting fewer images.[14]
[14] ts 10 ‑ 11, 14, 111, Exhibit 1, 95.
Mr Allen reported to Dr Wynn Owen that he was now keen to get out of prison and realised that he had to change his attitude and behaviour to achieve that. He stated that his biggest problem was collecting images and that his previous thinking on this had been 'mixed up, distorted and wrong'. Mr Allen said that over the last 12 months he had had a change of thinking and realised that 'collecting does more damage than good'. He also said that he had previously watched television programs with young children but had made a conscious effort to change his viewing habits. He attributed his change of thinking to having an improved sense of self‑worth. He had previously thought of himself in self‑deprecating terms but realised that this may have prevented him from aspiring to be different or better.[15]
[15] Exhibit 1, 96.
Mr Allen spoke in positive terms about his therapeutic relationship with Mr Summerton. He said that much of his change of thinking had been the product of this relationship. He also reported making an effort to replace deviant sexual interests with thoughts about age appropriate sexual contact. Whilst he did report having used images as a sexual stimulant, he said that this was happening less frequently.[16]
[16] Exhibit 1, 96 ‑ 97, ts 15.
Mr Allen told Dr Wynn Owen that he had requested a recommencement of treatment with hormonal anti‑libidinal medication. He had discussed both anti‑androgens (medroxyprogesterone acetate) and gonadotrophin‑releasing hormone agonists (leuprorelin) with a visiting prison psychiatrist. He said that he had consented to treatment as an intramuscular injection and was awaiting commencement.[17] Such treatment had been recommended by Dr Wynn Owen at the last review.
[17] Exhibit 1, 97.
Dr Wynn Owen conducted a risk assessment which included utilising the Static‑99R checklist of risk factors and the Risk for Sexual Violence Protocol (RSVP). The Static‑99R results rely upon unchanging historical factors (other than age) and accordingly the results are unlikely to change even where there has been effective treatment or improved management.[18] In these circumstances, as to be expected, Mr Allen's results remained largely the same as in previous assessments, that is he was in the well above average risk category.[19] However, in his summary, Dr Wynn Owen stated that in the last two years Mr Allen had reported a significant shift in his thinking. He had also reported that after work in counselling and personal effort he had managed to reduce his collecting and use of images and had self‑reported a relatively low libido. Dr Wynn Owen also thought it was significant that Mr Allen had expressed willingness to trial an anti‑libidinal drug. Although such a drug had been used on a previous occasion his testosterone levels at that time were variably suppressed and were often close to the range of normal. A different regime could be implemented that was likely to produce better results.[20]
[18] ts 10.
[19] Exhibit 1, 99.
[20] Exhibit 1, 102.
In his report Dr Wynn Owen recommended continuing counselling and a baseline assessment for treatment with anti‑libidinal drug while in prison. The aim was to achieve a steady state testosterone level of about 2 nmol/dL.[21] This was equivalent to a castrated or pre‑pubescent male.[22]
[21] Exhibit 1, 103.
[22] ts 108.
In oral evidence on 21 March 2019 Dr Wynn Owen described Mr Allen's change of attitude to counselling and to his collecting behaviour as a 'significant shift'[23] and as a 'watershed'. He said that he formed the impression that Mr Allen was acknowledging his ongoing paedophilic interests and desires whilst recognising that he needed to try and do something to seek alternatives. He said that Mr Allen had developed a good understanding of some of the ways to manage his needs, to manage boredom and to avoid the use of imagery. Self‑awareness has improved over time and the shift of thinking from collecting being protective was also important. Mr Allen had been treatment resistant for quite a long period of time and this had made progress very difficult. Whilst self‑awareness and change of behaviour was not perfect, the recent shift was an important change that could be built on.[24]
[23] ts 14.
[24] ts 17.
Dr Wynn Owen said that there are limitations as to what treatment can achieve in a custodial environment. This is because such an environment cannot duplicate the sorts of things that a person may be exposed to in the community. A custodial environment is much more controlled. Dr Wynn Owen said that there comes a point where it was necessary to test some of the gains that are made in treatment, assuming it is safe to do so, in a community environment. There was a risk that if Mr Allen continued to be detained some of the treatment gains that had been made would be lost.[25]
[25] ts 18.
Dr Wynn Owen said that, given Mr Allen's longstanding attitude to collecting images and the role that it had played in his life, it would not be expected that he would immediately cease that behaviour, rather there would be a period of change during which there would be a reduction in collecting images. He said that the established change to the actual volume of collecting and Mr Allen's thinking about it was very important. If collecting continued to reduce this would be viewed as further progress, whereas an increase would be an indicator of other issues including potentially entering into an offence cycle.[26]
[26] ts 19.
Dr Wynn Owen was of the opinion that Mr Allen's risk could now be managed in the community on a supervision order. In this regard he took into account that although Mr Allen had breached a previous supervision order he did not commit a contact offence, that it was now many years since any such contact offences had been committed and that there had been significant changes in the last two years. He was of the view that any such order should be of a 10 year duration. This took into account the range of Mr Allen's treatment needs and the likelihood that he would require ongoing supervision and support. He recommended that counselling should continue and that anti‑libidinal drugs be used for a three to four month period prior to release to establish effectiveness and then continue in the community.[27]
[27] ts 20 ‑ 21.
In regard to the use of anti‑libidinal drugs Dr Wynn Owen said that serious side effects with such drugs are inevitable, though the time that it takes for them to appear varies between individuals. He recommended the use of gonadotrophin over Androcur because the side effects are less. Gonadotrophin releasing hormone agonists are also more effective because they reliably reduce testosterone levels to significantly lower levels.[28] The value in using such drugs was not only in reducing physical libido but also intrusive sexual thinking. Sexual preoccupation can lead to disengagement or poor engagement with treatment. A reduction in sexual thinking is likely to improve engagement by enabling and increasing focus and that was described by Dr Wynn Owen as 'a huge bonus'[29]. Whilst use of the medication was not viable in the longer term due to the side effects, its use in the short to medium term as an adjunct to counselling therapy will enable treatment benefits to become entrenched. Dr Wynn Owen said that the use of anti‑libidinal medication was time limited and should never be seen as a mainstay of long term risk management. However, if an individual has previously had difficulties in treatment response it is an effective and useful adjunct to treatment.[30] Dr Wynn Owen summarised his position as follows:[31]
I don't see the anti‑libidinal as critical to his risk management. I believe it may be helpful in his therapeutic engagement and managing his ‑ his collecting and other behaviours and fantasy. Had there been no shift in thinking and that ‑ or that shift had just occurred in the last couple of months, I may be of a different ‑ I would be of a different opinion, but as there is an established 12 month period of what looks like a dynamic change, I do not see this as a critical component of his risk management.
[28] ts 21.
[29] ts 22.
[30] ts 24.
[31] ts 25 ‑ 26.
As noted above Mr Allen did not commence on an anti‑libidinal drug until 5 June 2019. This meant that when the hearing was resumed on 7 June 2019 there were no results to indicate whether the treatment was effective and, accordingly, the hearing was further adjourned. However before that occurred Dr Wynn Owen gave further evidence. In that evidence he confirmed that the bone density testing had shown that Mr Allen's bone density was within normal limits.[32] Had this not been the case it may have been unsafe to commence hormonal anti‑androgen treatment. The gonadotrophin which had been recommended by Dr Wynn Owen was not ultimately the drug that was prescribed. The reason for this was that gonadotrophin is not on the Pharmaceutical Benefits Scheme and the cost of it was beyond Mr Allen's ability to pay. The evidence was that a policy decision had been made by the Department of Corrective Services not to meet any such expense. Given that gonadotrophin is not only a safer but more effective alternative and the cost of the drug is significantly less than the cost of keeping a person in prison, this policy seems somewhat short‑sighted. Nonetheless an alternative drug, Depo‑Ralovera was available and had been prescribed.[33]
[32] ts 80.
[33] ts 64 ‑ 65, 107.
Dr Wynn Owen said that a test should be conducted within two weeks of the first dose to see an initial response. He said that at around 8 to 12 weeks after the first dose the testosterone levels should stabilise. He said that suppression was considered effective if a lower than 5 nmol/dL was achieved. Some titration of the drug may be necessary to achieve this. Mr Allen's normal levels had previously been between 10 and 20 nmol/dL.[34]
[34] ts 81 ‑ 83.
At the resumed hearing on 13 September 2019 the results referred to above were available. Dr Wynn Owen gave further evidence and produced a further report.[35] He said that although testosterone suppression had been achieved, the levels were fluctuating quite significantly. He said this was in part due to the initial metabolic hormonal response to the introduction of an anti‑androgen.[36] However he also noted that each of the higher levels was in the last one to two weeks prior to the next injection and this suggested that a four weekly dose frequency rather than six weekly would be more effective. He had recommended a change in the dose frequency and this had been accepted by Mr Allen's treating doctor. Dr Wynn Owen said in evidence that he would expect that this would produce effective suppression immediately.[37] He also noted that the results were better as compared with the previous occasion that Mr Allen had been trialled on an anti‑libidinal drug.[38] Although Dr Wynn Owen had not re‑interviewed Mr Allen, he had received information about his engagement with his counsellor. He said that Mr Allen's self‑reports of reduced libido and sexual thinking were consistent with the test results, though self‑reporting must always be approached with a degree of caution. Dr Wynn Owen adhered to his view that Mr Allen's risk of offending was capable of being managed on a supervision order.[39]
[35] Exhibit 11, 54.
[36] Exhibit 11, 55.
[37] ts 108 ‑ 110.
[38] ts 108.
[39] See ts 20, 113.
Sarah Ballantyne
Ms Ballantyne is a senior counselling psychologist with the Forensic Psychological Service of the Department of Justice. She prepared a report for the initial hearing that was based principally on consultations with Mr Allen's counselling psychologist, Mr Summerton.
Ms Ballantyne reported that Mr Allen had engaged with Mr Summerton on 28 occasions since the last review. On average, counselling sessions have occurred at three to four week intervals and have lasted approximately 60 minutes per session.[40]
[40] Exhibit 1, 106, ts 37.
Immediately after the last review and the decision to affirm the continuing detention order, Mr Allen acknowledged and accepted that behavioural change was essential if he was to improve the likelihood of his future release. This was considered an opportunity to set tangible and realistic treatment targets. The change in Mr Allen's motivation was described in the report as being a 'positive and proactive shift'. This was a significant change to Mr Allen's previously questionable motivations and a past tendency to engage in avoidance.[41]
[41] Exhibit 1, 106.
The curtailing of Mr Allen's collecting behaviour had remained the dominant focus of counselling throughout the current period. A significant decrease in evidence of problematic collecting had occurred and been maintained through the period. Mr Allen had also abandoned his previous stance that he should be allowed to collate and view non‑sexual images of children. He was also more willing to undertake meaningful discussion about this behaviour; though he was reluctant to prepare a written personal history of the conduct.[42]
[42] Exhibit 1, 107.
The report refers to increased self‑awareness of the significance of the behaviour and the importance of alternative positive activities, such as further education or recreational activities. Mr Summerton had reported that there was an improvement in Mr Allen's active seeking of alternative interests. Mr Allen had also self‑reported a reduction in his libido and sexual thinking.[43]
[43] Exhibit 1, 107.
Ms Ballantyne noted that Mr Allen's portrayal of his continuing therapeutic relationship with Mr Summerton was noticeably less ambivalent or fractious than it had been previously. It was her impression that Mr Allen appeared to have engaged more actively and meaningfully with counselling. There had been progress towards longstanding goals of behavioural change.[44]
[44] Exhibit 1, 114.
Ms Ballantyne's conclusions were that Mr Allen's attitude, motivation and meaningful engagement with both psychological intervention and other activities appear considerably improved since his previous review. There is evidence of a reduction in his past problematic collecting behaviour, a preparedness to consider compliance with anti‑libidinal medication and he has been more active in attempting to utilise available assistance to seek community based supports in preparation for possible future release.[45]
[45] Exhibit 1, 116.
Ms Ballantyne said that Mr Allen has a longstanding personality and interpersonal relationship style which reflects his underlying dependence, including a tendency to present himself to unfamiliar individuals in ways indicative of lower functioning than may be represent his true capacity. This is relevant in Mr Allen's future engagement with intervention and supervision. His management will require ongoing attention in a multidisciplinary taskforce framework if he is released into the community.[46]
[46] Exhibit 1, 116.
Kyle Jarvie
Mr Jarvie is a senior community corrections officer with the community offender monitoring unit of the Department of Justice. For the purposes of this review he prepared a community supervision assessment report.[47]
[47] Exhibit 1, 118.
In his report Mr Jarvie summarised the background, prison behaviour and counselling that Mr Allen had undertaken in the previous two years. These matters have been referred to earlier and it is unnecessary to repeat them. He also noted that Mr Allen has completed two short programs in that period, an Alternatives to Violence Training for Facilitators program from 31 March to 2 April 2017 and an Engagement with Alternatives to Violence training day on 2 September 2017.
In August 2018 Mr Allen's case management team made a request for him to be considered for a security classification override to minimum security to allow him to transfer to Karnet Prison Farm. This was because it was considered that placement in a minimum security environment may give him the opportunity to increase his autonomy and self‑management skills. Permission for the security level override was not granted, however it was indicated that a further request could be made at a later date.[48] No reason for the refusal is referred to in the report and there is no suggestion that this was a reflection of any attitudinal or behavioural problems on the part of Mr Allen.
[48] Exhibit 1, 119.
At the time the report was prepared Mr Allen was proposing to reside at the unit of a mature couple with whom he has had a longstanding friendship. It is unnecessary to refer to this accommodation further as it was later found that there was an age restriction on those who were permitted to be resident at the complex in which the unit was located. This prevented Mr Allen being a permanent resident at that complex, though he is permitted to visit and stay for short periods. Alternative accommodation was identified as being available through Uniting Care West as part of the DSO Supported Accommodation Program. This accommodation was subsequently assessed as being suitable. The Supported Accommodation Program also provides reintegration support for approximately six months. This includes assisting the person to locate more permanent accommodation and with reintegration into the community, such as transport, training assistance, finding appropriate social activities and attendance at appointments. Assistance can also be provided to facilitate engagement with employment programs.[49]
[49] Exhibit 1, 123, ts 119, 122.
Mr Jarvie's report included proposed supervision order conditions in the event that the court was of the view that a supervision order was appropriate. These conditions were formulated after discussions with Dr Wynn Owen, Mr Summerton and the police Sex Offender Management Squad. The standard conditions include being subject to global positioning system monitoring. This would enable exclusion zones to be implemented that would restrict Mr Allen from attending child focused areas, including (but not limited to) schools, childcare centres and parks.
Findings
The State submitted that whilst Mr Allen had made significant progress there was still some evidence of collecting behaviour in the last 12 months and his testosterone levels had not stabilised to the desired level. The defence submitted, to the contrary, that collecting behaviour had significantly reduced and that there were no images of children collected in recent months and, in particular, since anti‑libidinal medication had commenced. As to the testosterone levels, the defence pointed to the fact that the levels had been significantly reduced and that Dr Wynn Owen's evidence was that the higher readings could be immediately effectively prevented by increasing the frequency of the dosage.
In my view there has been very significant change since the last review. First, Mr Allen's engagement with counselling has been consistent and constructive. There has been a marked change in his attitude to collecting behaviour and he has accepted that this behaviour is not protective and needs to be addressed. He has made positive efforts in this regard, with apparent success.
Secondly, Mr Allen accepted that anti‑libidinal medication was necessary and treatment commenced on 5 June 2019. The evidence of Dr Wynn Owen was that the use of such medication to suppress libido and sexual thinking would provide an adjunct to other treatment, in particular counselling. In effect it will provide Mr Allen with clear mental space in which to establish a prosocial life that will avoid high‑risk situations. Since commencing the medication Mr Allen's testosterone levels have fallen, though they have fluctuated between 1.6 nmol/dL and 6 nmol/dL. Nevertheless, this is more effective suppression than was previously achieved when Mr Allen was last receiving such treatment several years ago. Effective suppression is considered to be between 2 and 5 nmol. Dr Wynn Owen believes that the aim should be 2 nmol, which in effect is equivalent to that of a castrated male or a prepubescent male. He is satisfied that such a level can be achieved by increasing the frequency of doses to four weekly rather than six weekly. He noted that the two highest readings were at the end of the six week cycles. It would therefore be expected that such readings would not be repeated if there was a reduction in the cycles to four weekly. The evidence is that the reduction in testosterone would be immediately achieved.
Though Mr Allen initially had some unpleasant side effects he appears to be tolerating the medication well. He accepts the necessity of maintaining a medication regime, though conscious of the potential side effects. He has reported a marked reduction in libido and sexual thinking and this is consistent with his lower testosterone levels. It should be noted that compliance issues that arose when Mr Allen was on anti‑libidinal drugs in 2009 are less likely because of the change in attitude and the method of delivery; depot injections rather than self‑administered oral medication.
Whilst Mr Allen has not always been a reliable historian, his most recent engagement with his counsellor has been characterised by frankness and apparent honesty. In these circumstances I accept that the anti‑libidinal treatment has been effective to date in suppressing libido and sexual thinking. This has enabled Mr Allen to focus more clearly on his treatment objectives.
Mr Allen has continued to meet with his counsellor and has proactively sought to identify high risk scenarios and how he might avoid them. The desire to collect images has not entirely gone, but it has markedly reduced. The results of cell searches is consistent in this regard. Mr Allen has recently been found in possession of some cartoons and colouring‑in images as well as a list of devotional books which, by their titles, appear to be written for juveniles. However none of this material is overtly sexual and it is not considered by either Dr Wynn Owen or Ms Ballantyne to be greatly significant. This activity needs to be seen in the light of the fact that Mr Allen's self‑image is that of a child or immature person. Accordingly, these items are not necessarily indicative of inappropriate thinking about children. Mr Allen's self‑image is a feature of his personality that he is aware of and he recognises the need to mature and accept more personal responsibility.
There is suitable accommodation available and Mr Allen has adequate supports available to him in the community. He appears to be more positively focussed on living a prosocial life and avoiding situations that involve a risk of sexual offending than he has ever been.
Given Mr Allen's history of offending and his risk profile he remains a serious danger within the meaning of the DSO Act. The real issue is whether that danger can be sufficiently managed as to make release a viable option. It is clear on the evidence that he is now more amenable to close management in the community than previously. If he continues with the medication at the dosage recommended by Dr Wynn Owen, continues to engage positively with counselling and accepts the necessity of the detailed and onerous conditions that must be imposed, a supervision is in my view now a viable option. Suitable conditions will also serve as an early warning protection if there is any change of behaviour that increases the risk of offending.
Conclusion
I am satisfied on the balance of probabilities that Mr Allen will substantially comply with the standard conditions of a supervision order. I have taken into account that the paramount consideration in determining whether the detention order should be affirmed or a supervision order made is the protection of the community. I am satisfied that the community can be adequately protected by release on a supervision order with conditions in the terms referred to in the annexure to these reasons. I am satisfied that Mr Allen understands the conditions and is willing to comply with them. I am satisfied that the duration of the order should be 10 years. As required by the DSO Act, in order to ensure that all necessary arrangements are in place, the supervision order will not come into effect until at least 21 days after the making of this order.
For the reasons above, at the final hearing on 13 September 2019 I rescinded the detention order and made a supervision order in terms of the annexed schedule.
Annexure
IN THE SUPREME COURT OF WESTERN AUSTRALIA
DSO 21 of 2006
IN THE MATTER of the Dangerous Sexual Offenders Act 2006
THE STATE OF WESTERN AUSTRALIA Applicant
-and-
PAUL DOUGLAS ALLEN Respondent
(also known as PAUL ALAN FRANCIS DEVERELL)
_______________________________________________________________________
SUPERVISION ORDER MADE BY THE HON JUSTICE HALL
ON 13 SEPTEMBER 2019
_______________________________________________________________________
The Court, having found pursuant to section 33(1)(b) of the Dangerous Sexual Offenders Act 2006 that the Respondent remains a serious danger to the community, orders that the Applicant be the subject of a supervision order pursuant to section 33(1)(b)(ii) of the Dangerous Sexual Offenders Act 2006 for a period of 10 years, these orders to take effect from 7 October 2019, being a date not earlier than 21 days from the date on which this review concluded, on the following conditions:
You, PAUL DOUGLAS ALLEN (also known as PAUL ALAN FRANCIS DEVERELL), must:
STANDARD CONDITIONS REQUIRED BY THE ACT
Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of your current name and address.
Report to, and receive visits from, a Community Corrections Officer as directed by the court.
Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
Be under the supervision of a Community Corrections Officer, which includes complying with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B).
Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer.
Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order.
Be subject to electronic monitoring under section 19A.
ADDITIONAL CONDITIONS
Residence
Take up residence at [redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.
Reporting to a CCO and supervision by a CCO
Report to a CCO at your approved address within normal business hours on the day of release from custody under this order, and thereupon advise the CCO of your current name.
Report to and receive visits from a CCO at times and places as directed by the CCO, and comply with the lawful orders and directions of a CCO.
Not commence or change employment, education, training or volunteer work without the prior approval of the CCO.
Attendance at programs or treatment
Consult and engage with any medical practitioner, psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re-offending, as directed by a CCO.
Reporting to WA Police
Report to the Officer-in-Charge of the Sex Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate or authorised person.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.
If requested, permit Police Officers to enter and search your residence, vehicle and/or person for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the order.
Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under condition 16.
To advise a CCO or Police of every device owned or used by you capable of accessing the internet and the location of that device upon request.
When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you, and all internet user names or identities used by you.
Permit a CCO or WA Police to access upon request any computer, telephone or other device capable of storing digital data (electronic storage device), at any location nominated by the CCO or WA Police, for the purpose of ascertaining your computer related activities.
Provide to the CCO or WA Police upon request any passwords, or any other means used to unlock or access any computer, telephone or electronic storage device, as may be required for the access described in condition 20.
Not provide passwords or any other means used to access any device referred to in condition 18, or any online accounts, to any person other than a CCO or Police Officer and not allow any person other than a CCO or Police Officer to access any device referred to in condition 20.
With respect to any computer, telephone or device in your possession that is connected, or capable of connecting, to the internet or has been used by you to access the internet, not to delete or otherwise remove or disguise any search histories or logs capable of identifying your activities on that computer, without the approval in advance of a CCO or Police Officer.
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.
Restrictions on contact with Victims
Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.
Unless contact with victims is permitted pursuant to condition 26, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.
Criminal conduct
Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218,
s 219, s 220 or s 557K Criminal Code1913 (WA).
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorized under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber.
Curfew
Be subject to a curfew, pursuant to section 19B of the Dangerous Sexual Offenders Act 2006, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Medications/Mental Health
Undergo medical testing or treatment, including with anti-depressant medication or hormonal anti-libidinal treatment, as directed by the CCO in consultation with a medical practitioner or medical practitioners.
Comply fully with any treatment prescribed pursuant to condition 36.
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment to the Department of Justice.
Permit any medical practitioner, psychologist, psychiatrist or counsellor to advise the CCO immediately if they become aware, or suspect, that you have, or intend to, cease undergoing pharmaceutical medication contrary to the advice of a medical practitioner, or if you appear to have ceased to consult with that medical practitioner on such treatment.
Undertake any medication regime in accordance with a medical practitioner’s direction, and comply with all testing to monitor your compliance with medical treatment including hormonal anti-libidinal treatment as directed by a CCO.
Prevention of high-risk situations
Not access the internet on any computer, mobile phone or other device capable of internet access unless such access is supervised at all times by a person approved in advance by a CCO.
Not access, collect or possess any pornographic material which displays bestiality.
Not access, collect or possess any material in which adults are depicted role playing children or adolescents.
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
Not possess, purchase, consume or use alcohol.
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer, including accompanying such persons to an appropriate location for such testing to take place.
To provide a valid sample for the testing described in condition 46.
Not remain in any place where prohibited drugs and/or alcohol are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place.
Not remain in the presence of any person who you know, or reasonably ought to know, to be affected by illicit substances, unless the identity of such person is approved in advance by a CCO.
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
(a) the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
(b) the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.(`Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication).
Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.
Provide details of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency.
Not form any domestic relationship with a person who has children under the age of 18 years in their care either full time or part time, without prior approval of the CCO.
Report at your next contact with your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person.
As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Not conduct computer searches for, nor collect or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not.
Not conduct computer searches for, nor collect or be in possession of any document, paper, or any other medium used for displaying words, either in the written or printed form, that describes sexual activity with a child and/or children.
Whilst in any public place, not be in present possession of any children's toy, game, or confectionery capable of constituting an enticement to children, unless you have a reasonable excuse.
Have no contact with, membership of, or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
Maintain a daily diary of your movements, activities and associations, if and as directed by the CCO, and present this diary to the CCO and Police upon request.
Not be within 50 meters of any school between 7:30am to 9:30am and 2:30pm to 4:30pm on school days, unless you have a reasonable excuse.
________________________________
THE HON JUSTICE HALL
I have received a copy of this order. I have had explained to me and understand the effect of this Order and what may happen if I contravene it.
Signed by the Respondent _____________________________
Paul Douglas Allen
In the presence of: _____________________________
Name and address: _____________________________
Date: _____________________________
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honourable Justice Hall7 OCTOBER 2019
15
6
1