The State of Western Australia v Vanderplas
[2020] WASC 113
•6 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- VANDERPLAS [2020] WASC 113
CORAM: CORBOY J
HEARD: 17 MARCH 2020
DELIVERED : 31 MARCH 2020
PUBLISHED : 6 APRIL 2020
FILE NO/S: DSO 2 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PAUL ANTHONY VANDERPLAS
Respondent
Catchwords:
Dangerous Sexual Offenders Act - Preliminary hearing - Whether reasonable grounds for believing a Division 2 order might be made
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7(1), s 7(3), s 14(1)
Result:
Application granted
Orders made for expert reports
Order made that the respondent be detained in custody until further order
Category: B
Representation:
Counsel:
| Applicant | : | Ms H Watson |
| Respondent | : | Ms M Barone SC |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Free [2010] WASC 255
CORBOY J:
The Division 1 application
The respondent has a history of serious sexual offending. On 19 January 2010, he was sentenced to 11 years' imprisonment, backdated to 6 May 2009. The sentence was imposed following the respondent's conviction for three serious sexual offences.
The respondent's release date is 5 May 2020. The State applies for orders under s 14 and s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). For the reasons that follow, I am satisfied that there are reasonable grounds for believing the court might find the respondent is a serious danger to the community. Accordingly, I have granted the State's application for orders under s 14 and fixed a date for the hearing of the application for orders under s 17 (div 2 orders). I have made consequential orders under s 14(2)(b)(i) that the respondent be detained in custody until further order of the court and expert reports be provided under s 37 and s 38A of the DSO Act.
The relevant DSO Act provisions
Section 14 of the DSO Act relevantly provides:
(1)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.
…
(2)If the court is satisfied as described in subsection (1) ‑
(a)the court must order that the offender undergo examinations by 2 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 section 37 to be used on the hearing of the application; and
(ba)the court may, on the application of the DPP or of the offender, order that a person or body named by the court prepare a report in accordance with section 38A to be used on the hearing of the application on questions or topics set out in the order; and
(b)the court may ‑
(i)if the offender is in custody and might otherwise be released from custody before the application is finally decided, order that the offender be detained in custody for the period stated in the order;
Section 14(1) refers back to s 7(1) of the DSO Act. That section provides that before the court may find that a person is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that the person would commit a serious sexual offence if the person was not subject to a continuing detention order or a supervision order. In deciding whether a person is a serious danger to the community, the court must have regard to the matters specified in s 7(3). The matters referred to in that section include:
(a)any medical, psychiatric, psychological or other assessment relating to the person;
(b)information indicating whether or not the person has a propensity to commit serious sexual offences in the future;
(c)whether or not there is any pattern of offending behaviour on the part of the person;
(d)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;
(e)whether or not the person's participation in any rehabilitation program has had a positive effect on the person;
(f)the person's antecedents and criminal record;
(g)if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;
(h)the need to protect members of the community from that risk.
The compendious expression 'if 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' entails several propositions. First, the court's task under s 14 is to decide whether it is satisfied about a matter. Second, the matter about which the court is required to be satisfied is whether there are reasonable grounds for a belief. Third, the relevant belief is a belief that a court might find the respondent to be a serious danger to the community under s 7(1). Fourth, the belief is a belief held by the State, as applicant, that the court might make that finding. Fifth, to find that the respondent is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that the respondent would commit a serious sexual offence if he or she was not subject to a continuing detention order or a supervision order. Sixth, the court must have regard to the matters specified in s 7(3) in deciding whether the respondent is a serious danger to the community.
Consequently, the effect of s 14 is that the court must consider the grounds upon which the State, as applicant, has formed a belief that the court might find that there is an unacceptable risk that the respondent would commit a serious sexual offence if he or she was not subject to a continuing detention order or a supervision and decide whether it is satisfied that those grounds are reasonable. The grounds for the State's belief must be founded upon the matters specified in s 7(3). Further, as McKechnie J pointed out in Director of Public Prosecutions (WA) v Free,[1] an assessment of whether the grounds for the State's belief are reasonable must take into account the degree of satisfaction that the court must reach to find that a person is serious danger to the community – the court must be satisfied to a high degree of probability that the respondent is a serious danger to the community before it can make a div 2 order.
[1] Director of Public Prosecutions (WA) v Free [2010] WASC 255.
The respondent's history of sexual offending
The respondent was born on 19 July 1969 and accordingly, he is aged 51 years. He was first convicted of a serious sexual offence in June 1982: aggravated assault of a sexual nature on a female child under the age of 17 years. He was 14 years of age at the time. He was convicted of the offence in the Holland Park Children's Court, Queensland and placed in juvenile detention for two years.
The respondent committed numerous further offences in Queensland between 1986 and 1995 but those offences were not of a sexual nature. He was first sentenced to a term of imprisonment in 1986 and sentenced to further terms of imprisonment in 1988, 1990 and 1994.
In May 1997, the respondent was convicted of the following offences after a trial in the District Court:
(a)on or about 12 May 1995, at Cottesloe, he committed the offence of stealing while being in the place of Ms A without her consent;
(b)on or about 18 May 1995, at Cottesloe, he entered, or was in the place of Ms A, without her consent and with the intention of committing an offence;
(c)on the same date and at the same place, he unlawfully detained Ms A by binding and gagging her;
(d)on the same date and at the same place, he sexually penetrated Ms A, a person over 60 years of age, without her consent by penetrating her vagina with his penis and then did bodily harm to Ms A;
(e)on the same date and at the same place, he sexually penetrated Ms A without her consent by penetrating her anus with his penis and then did bodily harm to Ms A;
(f)on the same date and at the same place, he unlawfully and indecently assaulted Ms A and then did bodily harm to Ms A;
(g)on the same date and at the same place, he sexually penetrated Ms A without her consent by penetrating her vagina with a wooden object and then did bodily harm to Ms A;
(h)on the same date and at the same place, he sexually penetrated Ms A without her consent by penetrating her anus with a wooden object and then did bodily harm to Ms A;
(i)on the same date and at the same place, he sexually penetrated Ms A without her consent by penetrating her vagina with his penis and then did bodily harm to Ms A;
(j)on the same date and at the same place, he stole a quantity of money and jewellery the property of Ms A;
(k)on the same date and at the same place, he stole a motor vehicle the property of Ms A.
The sentencing judge summarised the facts of the respondent's offending as follows:
(a)Ms A was 83 years of age and lived alone in a house in Cottesloe. On 12 May 1995, the respondent broke into her house through a back window and stole money and wine.
(b)On the evening of 17 May 1995, the respondent consumed a substantial quantity of alcohol at several hotels in the Cottesloe area. He decided to again break into Ms A's house with the apparent intention of stealing more money and alcohol.
(c)The respondent went to Ms A's house sometime between 1.00 am and 2.00 am, forced open a rear window with a screw driver and gained entry. He searched the house for items to steal and, in the course of doing so, he entered Ms A's bedroom and found her in bed. He placed a hand over her mouth and then wrapped insulation tape around her head so as to cover her eyes and mouth. He then ripped open her nightie and subjected her to repeated sexual assaults for a period of approximately two hours. During that time he penetrated Ms A's vagina and anus with his penis and with a large wooden object. He repeatedly hit her chest causing significant bruising and forced Ms A to masturbate him. The acts of penetration were violent and caused Ms A extreme pain and heavy bleeding.
(d)The respondent left the house on hearing a noise but bound Ms A's hands before doing so. He did not remove the tape that covered her face. Ms A was only able to work her hands free after about four hours. She managed to make small holes in the tape near her mouth and eyes and was able to then call her daughter. She had lost a significant amount of blood by the time her daughter got to her house.
Ms A suffered bruising to her arms and wrists and severe bruising to her breasts. She suffered anal bruising and some anal tears, a peritoneal tear and extensive injuries to her vagina and vaginal vault. She required emergency surgery and her genital injuries were medically assessed as potentially life‑threatening.
The respondent did not dispute that he had committed the assaults on Ms A but pleaded not guilty by reason of unsoundness of mind. The jury rejected that plea. The respondent was sentenced to 18 years' imprisonment, with terms of imprisonment of 16 years imposed for each offence involving a sexual penetration. The respondent was released from custody in 2007 (under the now abolished two‑thirds/one‑third rule).
In January 2010, the respondent pleaded guilty to four charges:
(a)on 5 May 2009, at Donnybrook he sexually penetrated AB, a child under 13 years, by inserting his finger into her vagina;
(b)on the same date and at the same place, he sexually penetrated AB by performing cunnilingus on her;
(c)on the same date and at the same place, he indecently recorded AB by photographing her genitals;
(d)on the same date, at Donnybrook, he had in his possession child pornography in the form of data on a mobile telephone.
The facts on which the respondent was sentenced for those offences were in summary:
(a)AB was aged five years at the time the offences were committed.
(b)In April 2009, AB's parents agreed that the respondent could use a caravan located on their property at Donnybrook.
(c)The offences were committed shortly after 4.45 am on 5 May 2009. The respondent had consumed alcohol and smoked cannabis in the hours prior to committing the offences.
(d)At about 4.45 am, the respondent entered the house in which AB resided with her parents. He went to AB's bedroom and took photographs of her while she slept. He then pulled down AB's pyjamas and felt her vagina area with his hand and penetrated her vagina with his finger. He photographed himself committing the offence and the photograph was subsequently located on his mobile phone. The respondent then licked AB's vagina and took several photographs of her vagina and her buttocks.
(f)AB became extremely distressed and the respondent left the bedroom and returned to the caravan. AB immediately ran to her parents' bedroom and told them what had happened, the police were called and the respondent was arrested.
(g)The police reviewed data stored on the respondent's telephone and found a large quantity of child pornography images. The images predominantly featured pre‑pubescent children. The sentencing judge described the images as 'extremely serious' and 'very distressing'.
The respondent was sentenced to 11 years' imprisonment backdated to 6 May 2009. The sentencing judge declined to make a parole eligibility order. As previously noted, the respondent is due to be released from custody on completing the sentence on 5 May 2020.
The respondent's personal circumstances and forensic history
Ms Watson's affidavit attached various psychiatric reports that were obtained in connection with the respondent's court proceedings in 1997 and 2010: report dated 4 February 1996 by Dr G Allen German; report dated 29 August 1996 by Dr Aaron Groves; further report dated 21 April 1997 by Dr German; report dated 23 May 1997 by Dr Steven Patchett; report dated 22 June 2005 by Dr Bryan Tanney; and report dated 14 September 2009 by Dr Sam Febbo.
Ms Watson's affidavit also attached a number of other reports: parole assessment report dated 10 June 2006; Sex Offender Risk Update Report dated 28 February 1997 and prepared by Ms Mary-Anne Martin, a forensic consultant; report to the District Court dated 20 May 1997 and prepared by Mr Doug Wright, a psychologist contracted to the Sex Offender Treatment Unit; addendum to a pre‑sentence report dated 15 September 2009; psychological report dated 16 September 2009 by Mr David Summerton; Sex Offending Treatment Checklist; Sex Offending Intensive Program Completion Report dated 30 October 2013; completion report for the Pathways Program dated 11 December 2017; and an individual management plan for the respondent dated 2 May 2018.
As will become apparent, there is an issue about the reliability of the respondent's self‑reporting to the authors of the various reports attached to Ms Watson's affidavit. However, in summary the reports state that:
(a)The respondent spent his childhood and adolescence in Northern Queensland. His parents separated when he was 12 years old and the respondent reported having 'bounced back and forth' between his parents following their separation. He has a sister with whom he has a strong emotional attachment. He described his mother as suffering from symptoms of a manic depressive illness.
(b)The respondent had a difficult childhood and adolescence. He reported problems with 'stammering' and described himself as 'oppositional' and a 'loner'.
(c)The respondent gave a history of head injuries to Dr German and Dr Groves: two injuries of apparently indeterminate significance between the ages of 6 and 10 years and a much more severe injury when he was about 17. The latter injury occurred when he was working on a station in Queensland (or possibly, the Northern Territory); he was kicked in the head by a horse. The respondent believed he was unconscious for considerable time and described a range of symptoms which he attributed to the injury.
(d)The respondent told Dr German that he had relocated from Queensland to Western Australia in February 1995 and that he had become heavily involved in a drug culture using amphetamines and cannabis. He informed Dr Groves that he had used considerable quantities of amphetamine.
(e)Dr German considered the respondent had developed temporal lobe epilepsy as a result of his head injury (that was apparently consistent with an earlier diagnosis made by another doctor in Queensland). The respondent described episodes of headaches, dizziness, feelings of being detached from reality and occasionally, 'blackouts'. He also described intense feelings of aggression and rage during these episodes and reported being aware of a 'predisposition' to violence.
(f)The respondent told Dr German, Dr Groves and Dr Patchett that on the night that he committed the offences against Ms A he had found a packet containing a white substance in a hotel toilet. He had consumed the substance without knowing its composition. He thought the effect of the substance was different to amphetamines and suspected that it might have been a mixture of drugs.
(g)Dr German considered the respondent had been in an epileptic state at the time he committed the offences in 1995, compounded by the consumption of alcohol and amphetamines and non‑compliance with his medication regime.
(h)Dr Groves agreed the respondent suffered from temporal lobe epilepsy but, at the time he committed the offences, the respondent 'had a clear grasp of what he was doing and the implications of its wrongfulness and that he had a capacity to control his actions'. He considered that there were a number of features of the respondent's offending that showed 'coordinated' and 'directed' actions and were 'highly atypical' of epileptic automatism.
(i)Dr Patchett accepted the respondent suffered from a 'complex partial seizure disorder' which was 'compounded by a history of substance abuse'. He noted that the respondent reported various delusional beliefs and auditory hallucinations; he referred to a 'beast' within himself and to attempts at self‑harming to rid the beast (Mr Wright also noted reports of significant self‑harming). Dr Patchett thought it was likely the respondent suffered from an abnormal personality with antisocial and borderline features. It was possible the respondent might suffer psychotic episodes in the future, particularly if he used substances such as amphetamines or failed to take anticonvulsant medication.
(j)The respondent reported to Dr German that he had survived on social security, supplemented by fishing, while in Western Australia. He told Dr Groves he had experienced great difficulty in obtaining employment as an adult. He said he had moved to Sydney after being released from prison in Queensland in 1994 and had endeavoured to obtain employment but had spent most of his time using large quantities of amphetamines, LSD, ecstasy and cocaine. He informed Dr Patchett that he had not worked since sustaining his injury while on a station in the Northern Territory. He said he was 19 years of age when he suffered the injury.
(k)Mr Wright reported that the respondent accepted responsibility for his offending against Ms A, expressed remorse and appropriate victim empathy and was motivated to seek treatment. However, Mr Wright conducted psychological testing which indicated the respondent was dishonest about, and had attempted to justify, his interest in sexual deviance. His responses to test questions indicated possible paranoid schizophrenia, cognitive distortions, high levels of distrust, alienation and immaturity. Mr Wright considered that the results of psychometric testing 'underscored' the 'the extent of psychological disintegration that exists for [the respondent]'.
(l)The respondent informed Mr Wright that he had commenced using drugs at the age of 12 and was consuming amphetamines intravenously at 13. He also informed Mr Wright that he was first imprisoned at about the age of 18 and had worked as a DJ and crowd controller in nightclubs after being released from prison. He had also been employed as a mill hand.
(m)Dr Febbo considered that the respondent's history of temporal lobe epilepsy and significant personality pathology meant he fulfilled the diagnostic criteria for an anti‑social personality disorder. He noted that the respondent's mental state had apparently deteriorated prior to committing the 2009 offences - the respondent reported that his compliance with his medication regime prior to the offences had been erratic and he had experienced visual hallucinations on three or four occasions; he had been depressed as a result of losing a job and had increased his use of alcohol and cannabis as a result. He had consumed a considerable quantity of alcohol immediately prior to committing the offences against AB. Dr Febbo considered the respondent's mental state prior to the offences placed him at a greater risk of offending sexually.
(n)The respondent told Dr Febbo that he had suffered a hernia prior to committing the offences in 2009 and had lost his job as a result. He gave an employment history that included working as a cook and estimated that he had been employed for 'something like 60% of time' he had spent outside of prison.
(o)Dr Tanney provided psychiatric management for the respondent for a period of four years while he was in prison for the offences committed in 1997. The respondent told Dr Tanney that he did not intend to apply for parole for various reasons, including punishment for the guilt he felt over his offending and concerns about his mental state and the possibility of reoffending if he was released to the community. The respondent had not been involved in rehabilitation or personal advancement programs because he was regarded by prison authorities as presenting a high risk of acting violently. However, Dr Tanney reported that the respondent had been compliant with anti‑psychotic and anti‑epileptic medication. It was likely he would require ongoing intensive psychiatric management on release.
(p)The parole assessment report dated 19 June 2006 stated that the respondent had been assessed for participation in the Intensive Sex Offender and Intensive Substance Use Programs but he did not feel that he could cope with either program in a group environment. Accordingly, he had not addressed the causes of his offending behaviour through counselling or other programs. The report confirmed that the respondent did not wish to be released on parole.
(q)A Sex Offender Risk Update Report was provided by Ms Martin in February 2007. She noted the respondent was reported to have behaved in a sexually predatory manner towards other prisoners while being in custody. Those incidents occurred early in his sentence and there had been no further report of such behaviour since about 1999. She performed a Static‑99 assessment. The respondent's scores placed him in the high‑risk category of offending. He had been assessed twice for inclusion in an Intensive Sex Offender Treatment Program (July 1997 and December 2002). However, he had not participated in the program or programs directed to substance abuse as he refused to enter a group‑based program and because of his psychological instability.
(r)The respondent provided a somewhat different account of his adolescence to Mr Summerton than he had given to other report writers - in particular, he reported having close peer relationships as a child and adolescent. Mr Summerton thought that the respondent's different account of his personal history might reflect coping strategies that the respondent had developed as a result of his long period in custody. As with Mr Wright, the report informed Mr Summerton that he had worked in crowd control and bars in nightclubs for several years after returning to Brisbane from north Queensland and the Northern Territory. He apparently claimed significant criminal associations while in Brisbane; he stated that his criminal lifestyle 'fell apart as a result of the Fitzgerald Inquiry'. He also claimed to have travelled and worked in various locations around Australia including Sydney, Melbourne and Adelaide before coming to Perth.
(s)Mr Summerton reported that the respondent accepted responsibility for his offending against AB and claimed that the offences were 'not [him]'. However, the respondent apparently gave a different explanation to Mr Summerton about why he had not applied for parole when serving his sentence for the 1997 offences than that given to Dr Tanney – he told Mr Summerton that he did not wish to become a 'puppet to a system'.
(t)Psychometric testing conducted by Mr Summerton indicated the respondent had a marked tendency to portray himself in a positive light and to have compulsive tendencies. A Static‑99 analysis placed the respondent in the high‑risk category. In Mr Summerton's opinion, the respondent had significant treatment needs.
(u)The program completion report for the Sex Offending Intensive Program undertaken by the respondent in late 2012 and 2013 again recorded that the respondent was at a high risk of offending according to a Static‑99 assessment. He had participated well in the program, displaying appropriate victim empathy and accepting responsibility for his offending.
(v)The program completion report stated that the respondent had expressed some negative views about his father (earlier assessments reported that the respondent had a very positive view of his father). The respondent continued to express negative opinions about his mother. He also claimed to have been sexually abused by a person who had befriended him at around the time his parents were divorced.
(w)According to the program completion report, the respondent advised that he had lived a regimented life, including being in the military/security industry where he had developed post‑traumatic stress disorder. He identified as a 'core belief' that age was no barrier for sex and that sex equated to affection and intimacy. He attributed those beliefs to his early sexual experiences. However, the authors of the report observed that the respondent had demonstrated an ability to challenge those beliefs. He reported that he had not initially sought out child pornography but after viewing it for some time he became both curious and desensitised to the pornography. It was observed that this allowed him to justify his offending behaviour to himself. The report concluded that the respondent had met all program objectives, made treatment gains and was observed to have derived a greater understanding of the factors underlying his offending and had accepted responsibility for his behaviour.
(x)The Pathways program is intended to address drug use and offending behaviour, including by developing a relapse and recidivism prevention plan. The respondent participated in the program during 2017. The program report noted the respondent did not share his history of sex offending in the group environment for reasons of personal safety. He claimed not to have consumed illicit drugs at the time of his offending against AB, noting that he was taking more of his PTSD medication than prescribed and had consumed a large quantity of alcohol. He denied past use of amphetamines and cannabis, apart from during his military service when he had consumed amphetamines to 'stay focussed'. He claimed he had been neglected by his parents and raised by another family member and stated that he had joined the Australian Defence Force (ADF) at the age of 17. He also claimed he could not disclose more about his role in the ADF because of the Official Secrets Act. However, he stated that he had been diagnosed with PTSD from seeing his colleagues die and that he had suffered some form of chemical or gas damage to his lungs. He said he had been in a significant relationship at the age of 22 with a woman who was also employed by the ADF and that her death had exacerbated his PTSD.
(y)The Pathways Report identified some treatment gains made by the respondent. However, the authors of the report expressed various concerns, including that it was possible that treatment gains could be eroded over time due to the length of the respondent's sentence. The authors were also concerned by the respondent's lack of social supports and the discrepancies between his autobiography and the reported history on TOMS. They considered the discrepancies might 'invalidate aspects of his treatment gains depending on the reasons for these inconsistencies and the nature of his program engagement.' The report also noted that the respondent's participation in the program was often questioned as he reported his motivation was to do something other than play on his Xbox.
(z)In making their observations about the respondent's participation in the Pathway's program, the authors of the report assumed that the respondent's self‑reporting was truthful and accurate despite the discrepancies with his recorded history. It was apparent that this assumption underpinned many of the comments made in the report. It was also apparent that the respondent's advice that he suffered from PTSD was a significant factor in the assessments made by the report's authors.
It must be emphasised that the above summary merely records matters that were stated in the reports annexed to Ms Watson's affidavit. It is, of course, possible that the reports do not accurately state the history that was given by the respondent to the authors of the reports or that significant variations between the reports have occurred because of differences in interviewing and reporting protocols. It is not possible to assess the extent to which, if at all, this has occurred in the context of an application for orders under s 14 of the DSO Act.
However, even allowing for the possibility of misunderstandings or other sources of inaccurate recording of the respondent's personal history, it is apparent that there are significant discrepancies in the history given by the respondent over time. Most obviously, the respondent's account of his employment record has significantly changed. He told Dr Groves that he struggled to find employment as an adult following the head injury he sustained at around the age of 17 or 18 years. That was broadly consistent with the histories provided to Dr German and Dr Patchett. However, he told Dr Febbo that he had worked as a cook and had been employed for approximately 60% of the time he had been out of prison. He told Mr Wright and Mr Summerton that he had worked in nightclubs. He informed those involved in the Sex Offending Intensive Program and the Pathways program that he had served in the 'military/security industry' or the ADF. His account of service in the ADF that he gave in the Pathways program was particularly dramatic, including apparently being involved in combat duties. He claimed for the first time in the Sex Offending Intensive Program and the Pathways programs that he suffered from PTSD as a result of his service.
His self‑reporting about substance use also changed over time. He admitted taking amphetamines at the time he committed the 1997 offences and he told Mr Wright that he had used drugs, including amphetamines, since the age of 12 or 13. According to the authors of the Pathways program, he denied long term drug use except for the use of amphetamines while serving with the ADF. There was also an apparent discrepancy about his report of sexual abuse as a child. That was referred to in the remarks of the sentencing judge for the offences against Ms A but, according to Dr Febbo, the respondent had not reported any instance of sexual abuse as a child or adolescent.
The apparent inconsistencies and discrepancies in the respondent's self‑reporting is relevant to the State's application in at least two respects. First, it clouds an assessment of the respondent's response to the treatment programs in which he has participated and of personal factors such insight into the causes of his past offending. Self‑evidently, an assessment of those matters is central to the question whether the respondent might be found to be a serious danger to the community. Second, the reports suggest a grandiosity and set of delusional beliefs that may be relevant to psychiatric and neuropsychological assessments of the respondent's cognitive functioning and mental state generally. Those matters may, in turn, be relevant to an assessment of the respondent's risk of sexual offending.
Reasonable grounds exist
I am satisfied that there are reasonable grounds for believing that a court might, under s 7(1) of the DSO Act, find the respondent to be a serious danger to the community. I have reached that conclusion having regard to the following matters.
First, it was conceded that the respondent's criminal history provided a sufficient basis for making orders under s 14. In my view, that concession was rightly made. Plainly, it would be open in a div 2 hearing to find the respondent's offending was characterised by sexual deviance and the exploitation of very vulnerable victims. Further, the offences against Ms A involved extreme and protracted sexual and other forms of physical violence and the offences against AB included the creation of pornographic images of a young child. The respondent was found to have in his possession a large quantity of child pornography following his arrest for the offences committed against AB.
Second, it would be open to the court to find that the respondent had a propensity to commit serious sexual offences in the future on the evidence presented in this application. Although undertaken some time ago, the Static‑99 assessments independently performed by Ms Martin and Mr Summerton placed the respondent in the high risk category of future offending.
Third, the court could find there was a pattern to the respondent's offending notwithstanding that he has only been convicted as an adult of offences that had occurred on two occasions. The offending involved victims who were extremely vulnerable because of their age – the fact that they were attacked by the respondent while in bed at night and, initially asleep, added to their vulnerability. Further, the respondent had drunk a considerable quantity of alcohol prior to the offences and had, possibly, consumed illicit substances. He was apparently non‑compliant with a medication regime prior to committing the offences.
Obviously, a finding that there was a pattern to the respondent's offending would be relevant to an assessment of the likelihood of the respondent committing a serious sexual offence in the future.
Fourth, the psychiatric reports obtained at the time of the respondent's offending indicate that there may be features of his mental functioning and personality that increase the risk of sexual offending. That is evident from the opinions of Dr German, Dr Patchett and Dr Febbo in particular. Dr German went so far as to opine that the respondent was suffering an epileptic episode, combined with drugs, at the time he committed the offences against Ms A that deprived him of the capacity to control his actions and left him with 'no clear grasp of what he was doing or its implications in terms of right or wrong'. Dr Febbo thought that the respondent's mental state had 'significantly deteriorated' prior to offending against AB, involving 'the presence of psychotic symptoms, significant depressive symptoms, and escalating use of alcohol and cannabis.'
Fifth, the respondent has only participated in two programs that might address the causes of his offending and provide him with strategies to manage risk factors. He was said to have successfully completed both programs but there were comments made in the completion reports that could cause concern – for example, the respondent's core attitudes as identified in the Sex Offending Intensive Program and his motivation to participate in the Pathways program. Further, the effect of his participation in the programs is difficult to assess given the apparent inconsistencies in his self‑reporting.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Corboy6 APRIL 2020
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