The State of Western Australia v West
[2013] WASC 14
THE STATE OF WESTERN AUSTRALIA -v- WEST [2013] WASC 14
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 14 | |
| Case No: | DSO:4/2012 | 28 & 29 NOVEMBER, 14 DECEMBER 2012 | |
| Coram: | CORBOY J | 23/01/13 | |
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Application for continuing detention order granted | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA DARREN HARLEY WEST |
Catchwords: | Criminal law Dangerous Sexual Offenders Act 2006 (WA) Whether respondent a serious danger to community Whether a continuing detention or supervision order should be made No new principles |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 7, s 14, s 17(1) |
Case References: | Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307 Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; 35 WAR 297 Italiano v The State of Western Australia [2009] WASCA 116 The State of Western Australia v Latimer [2006] WASC 235 Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; 38 WAR 217 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
DARREN HARLEY WEST
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Whether respondent a serious danger to community - Whether a continuing detention or supervision order should be made - No new principles
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 14, s 17(1)
Result:
Application for continuing detention order granted
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Category: B
Representation:
Counsel:
Applicant : Ms L Petrusa
Respondent : Ms M R Barone
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312
Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307
Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; 35 WAR 297
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Latimer [2006] WASC 235
Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; 38 WAR 217
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- CORBOY J:
The application
1 Mr West was due to be released from prison on 29 October 2012, having completed a sentence imposed on 10 April 2007. By an application dated 12 October 2012, the Director of Public Prosecutions for Western Australia applied under s 8 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) for orders under s 14 and s 17(1) that Mr West be detained in custody for an indefinite term for control, care or treatment; alternatively, that he be subject to a supervision order on his release. McKechnie J made orders on 19 October 2012 fixing a date for the hearing of the DPP's application (under s 14(1) DSO Act); for reports from two psychiatrists to be provided for the purpose of the hearing (see s 14(2)) and for the interim detention of Mr West.
2 The power conferred on the court by s 17(1) of the DSO Act is conditioned on a finding that the offender is a serious danger to the community. Mr West denied that he was a serious danger to the community; alternatively, he contended that the DPP had failed to establish that he was a serious danger. He further contended that a supervision order should be made if it was found that he was a serious danger to the community.
3 I have found that Mr West is a serious danger to the community and that he should be detained in custody for an indefinite term for control, care and treatment.
Mr West's personal circumstances
4 Mr West was born in Warburton in 1965. He has lived in Warburton throughout his life.
5 Exhibit 1 comprised a book of materials tendered by the DPP with Mr West's consent. Exhibit 1/2 comprised a record of Mr West's criminal history. His criminal record is extensive, primarily consisting of convictions for summary offences. However, the following convictions were directly relevant to the DPP's application:
(a) Mr West was convicted in this court on 3 April 1996 of four counts of sexual penetration of a child under the age of 16 years. He was sentenced to a total term of imprisonment of 2 years and 19 weeks.
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- (b) Mr West was convicted in the District Court of Western Australia on 15 August 2005 of one count of sexual penetration of a child under the age of 16 years. He was sentenced to a term of imprisonment of 2 years and 4 months.
(c) Mr West was convicted in the District Court on 10 April 2007 of one count of sexually penetrating a child over the age of 13 years and under 16 years of age and one count of indecently dealing with a child over the age of 13 years and under 16 years. He was sentenced to a cumulative term of imprisonment of 6 years, commencing on 30 October 2006.
6 It should also be noted that Mr West has been sentenced to a term of imprisonment on 13 occasions: see exhibit 1/5.
7 Mr West completed the Aboriginal Sex Offender Treatment programme while at the Greenough Regional Prison in 1996 (see treatment report dated 3 January 1997, exhibit 1/63). Mr West also participated in a pilot version of the Sex Offender Indigenous Medium programme between May and August 2011 at Greenough Regional Prison (exhibit 1/109). He has also completed the Cognitive Brief Intervention programme in December 2007 at Casuarina Prison (exhibit 1/103) and the Indigenous Men Managing Anger and Substance Use programme at Greenough Regional Prison in February 2010 (exhibit 1/105).
The offences
The offences committed in July 1995
8 Mr West pleaded guilty on 18 March 1996 to two counts of sexually penetrating a female complainant on 22 July 1995. The facts as read by the prosecutor and accepted by the sentencing judge, Wallwork J, were that Mr West was aged 30 years at the time of the offences and the complainant, 15 years. Mr West drove the complainant at night to a rubbish dump at Warburton. He then penetrated the complainant's vagina twice.
9 Mr West further pleaded guilty on 18 March 1996 to one count of sexually penetrating the same complainant on 24 July 1995. Again, Mr West drove the complainant and two other girls to the rubbish dump at Warburton. The girls ran away from Mr West when they arrived at the dump. However, he threw a rock at the complainant and she was either struck by the rock and fell or she stopped running when the rock was thrown. Mr West then sexually penetrated the complainant with his penis.
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10 Finally, Mr West pleaded guilty on 18 March 1996 to one count of sexually penetrating the complainant on 25 July 1995. The complainant was walking past Mr West's house. He called her into the house, asking her to return a video for him. She entered the house and Mr West pulled her into a bedroom and pushed her on to a bed. He then sexually penetrated her with his penis.
11 The prosecution accepted that there was 'some real doubt as to the question of consent' in respect of the offences committed on 22 and 24 July. Reference was made to a record of interview in which Mr West accepted that the complainant had said 'No' prior to being sexually penetrated by Mr West on 25 July 1995 (18 March 1996, ts 5; exhibit 1/61, page 140). Counsel for Mr West suggested in his plea in mitigation that it was uncertain whether the complainant had said 'No' prior to being sexually penetrated by Mr West on 25 July or whether she had said 'No' after being penetrated and he had then ceased. However, counsel declined a trial of issues and Wallwork J observed, 'I will treat it that although she said, "No", he continued' (ts 7; exhibit 1/61, page 142).
Offence committed in 2004
12 Mr West pleaded guilty on 15 August 2005 to one count of sexually penetrating a female complainant on a date unknown between 1 April and 24 June 2004. The complainant was aged 15 years at the time of the offence.
13 There was some difference between the prosecution and Mr West regarding the precise circumstances in which the offence had been committed. That difference concerned whether Mr West or the complainant had initiated what subsequently occurred. Counsel for Mr West did not seek a trial of issues and the sentencing judge, Macknay DCJ, observed in his sentencing remarks that, 'It's not necessary for there to be any hearing to resolve those [differences] because I think even on your version, it was a serious matter and there is no excuse for your behaviour' (15 August 2005, ts 77; exhibit 1/88, page 299).
14 On Mr West's version, the complainant and another girl were sniffing petrol. The complainant offered sex for petrol and subsequently, offered to have sex with Mr West at the urging of the other girl. The prosecution version was that Mr West insisted that the complainant have sex with him and subsequently, threatened to bash the complainant and her companion if they told anybody about what had occurred.
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The October/November 1995 offences
15 Mr West pleaded guilty on 3 November 2006 that on a date unknown between 10 October 1995 and 14 November 1995 he sexually penetrated a female complainant by inserting his penis into her vagina. Mr West was aged 30 years and the complainant was aged 14 years at the time of the offence.
16 Mr West was sentenced by Martino DCJ on the following facts (10 April 2007, ts 14):
… you came across the victim, who was then aged 14. You, after some preliminary communication, led her away and placed a blanket around her shoulders in an effort to disguise her and once in the bush you laid the blanket on the ground and put the victim on the ground. You placed a hand over her mouth and removed her pants and you placed your penis inside her vagina and had intercourse with her.
After allowing the victim to get up, you gave her $100 and told her not to tell anybody what had happened.
17 On 10 April 2007, Mr West pleaded guilty to a charge that on a date unknown between 10 October and 14 November 1995 he indecently dealt with a male complainant by attempting to insert his penis into the anus of the complainant. The complainant was 13 years old at the time of the offence. He was sentenced by Martino DCJ on the following facts (10 April 2007, ts 14):
You saw the victim on the streets of Warburton, he was with some friends, and you persuaded him to get into your car.
You drove with him in the car. You spoke some rude words to him in the car and reached across to touch him on his track pants and then when the car - this was when the car had stopped - and you then produced a wheel spanner and you displayed it in a threatening way and told the victim to get out and you hit the victim twice on the arm with the spanner and you got the victim onto the ground - to go on to the ground and you attempted to place your penis in his anus, but you did not do so.
The evidence
18 The evidence on the DPP's application substantially comprised the book of materials that was received into evidence by consent (exhibit 1) and the reports and oral evidence of Dr Wojnarowska and Dr Febbo, the psychiatrists who were ordered by McKechnie J to provide reports (exhibit 1/113 and exhibit 1/112 respectively), Mr Ryan Bell, a clinical psychologist employed by the Department of Corrective Services
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- (exhibit 1/111) and Ms Kay-Marie Gibbens, a team leader at the Kalgoorlie Adult Community Corrections Centre, Department of Corrective Services.
19 Mr West did not give evidence.
The psychiatric evidence
A preliminary comment
20 There was no challenge to the expertise of Dr Wojnarowska and Dr Febbo and it is only necessary to note that they were both experienced in the assessment of sex offenders.
21 The reports of Dr Wojnarowska and Dr Febbo were detailed and it is proposed to only identify those aspects of their reports that were particularly relevant to the findings that have been made on the DPP's application. They were carefully and thoughtfully examined at the hearing by counsel for the DPP and Mr West and again, it is not proposed to fully summarise the detail of their oral evidence.
22 I found the reports and oral evidence of Dr Wojnarowska and Dr Febbo to be consistent with their duties to the court as experts.
The psychiatric reports
23 Dr Wojnarowska and Dr Febbo expressed similar opinions. In summary:
(a) Dr Wojnarowska concluded that the risk assessment and management techniques that she had applied had indicated that Mr West was at a high risk of reoffending if released into the community. They also demonstrated that he had high treatment needs. Those conclusions, based on actuarial instruments and using clinical guidelines, were consistent with her clinical assessment and were also supported by collateral information. She noted that Mr West had no understanding of his cycle of offending and presented with limited insight. He was highly defensive, used denial, projection and justification as his main defence mechanisms (exhibit 1, page 565).
(b) Dr Febbo considered that Mr West was currently at high risk of sexual offending following release. He regarded the most striking aspect of Mr West's history as being his lack of awareness and acceptance that he was responsible for his sexual offending.
- Mr West took a victim stance that 'translated itself in the risk factors of extreme minimisation or denial of sexual violence, problems with self-awareness, and the possible risk factor of attitudes that support or condone sexual violence' (exhibit 1, page 539 - 540). Dr Febbo considered that more work was required to increase Mr West's awareness of a connection between alcohol abuse and offending notwithstanding that Mr West had participated in a programme aimed at substance abuse with an apparently positive outcome. Dr Febbo also thought that the risk of Mr West offending was increased by the lack of a feasible plan following release. He concluded that Mr West's current level of risk was such that it was difficult to see how it could be managed in the community.
- (c) Under the heading in her report 'Recommendations', Dr Wojnarowska stated that 'Mr West requires to undergo the Intensive Sex Offender Treatment Program … offered in a custodial setting'. In her opinion, Mr West's participation in the programme should be preceded by individual counselling focussed on areas such as his insight and treatment acceptance. It was possible that individual psychological counselling was necessarily to address other areas requiring treatment. In particular, the presence of paedophilia should be either confirmed or excluded (exhibit 1, page 566).
(d) Dr Febbo considered that Mr West should participate in the Intensive Sex Offender Treatment Program (ISOT programme) targeting high risk offenders. It was his understanding that the programme was only available in a custodial setting. He also considered that Mr West required intensive individual psychotherapeutic input to produce 'some shift in Mr West's now minimal level of awareness in relation to his sexual offending' (exhibit 1, page 540). Individual counselling could also address background issues from Mr West's childhood such as physical and possible sexual abuse. The significance of his substance abuse could also be explored and a realistic plan for his release developed.
24 Dr Wojnarowska and Dr Febbo used substantially the same instruments to assess the risk of Mr West offending in the future. Dr Febbo explained in his report that the tools used to predict recidivism could be divided into two categories: 'actuarial' instruments and 'structured professional judgment' (and see Dr Wojnarowska, ts 33). An
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- actuarial instrument generated a score for an individual that could be correlated with mass statistical data. The actuarial instruments used by Dr Febbo were the Static 99 and the Hare Psychopathy Checklist-Revised (PCL-R). The 'structured professional judgment' instruments required a clinician to consider different factors that impact upon the assessment of risk. Dr Febbo used the Historical Clinical Risk-20 (HCR-20) and the Risk for Sexual Violence Protocol (RSVP). He provided an explanation in his report about the use of each of those instruments.
25 Dr Wojnarowska also used the Static-99, PCL-R and RSVP instruments. In addition, she undertook the '3-Predictor Model' assessment for the purpose of assessing Mr West's risk of recidivism. Dr Wojnarowska explained her understanding of those instruments in her evidence-in-chief (ts 35 - 41).
26 Dr Febbo expressed and recognised in his report that there was a cultural dimension to the risk assessment techniques that had been used. He considered that the techniques were to be used with caution given Mr West's cultural background. However, he also expressed the opinion that the instruments, in particular the RSVP, still provided a useful guide in relation to the risk of sexual reoffending and management.
27 The results of the assessments undertaken by Dr Febbo were that:
(a) Static 99: Mr West's score on the Static 99 placed him in the high risk category. Dr Febbo stated that individuals in that category, as a group, have a 39% chance of sexual reoffending within a five-year period. However, the Static 99 gives little specific detail about those who are at risk of reoffending at an individual level.
(b) PCL-R: Dr Febbo gave Mr West a total score of 27.8 points out of a possible 40 which, according to the PCL-R manual, placed him at about the 75th percentile when his score was compared to those based on a pool sample of 5,408 male offenders. That score was below the cut-off score traditionally used to diagnose psychopathy (30 points or higher).
(c) HCR-20: Dr Febbo identified a number of historical risk factors for violence and noted other risk factors such as lack of insight, unresponsiveness to treatment and impulsivity. However, he also noted the absence of certain risk factors such as active symptoms of mental illness. He concluded that 'using the HCR-20 as a basis, and using the traditional categories of low, moderate and high risk, Mr West's final risk judgement is high' (exhibit 1, page 533).
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- (d) RSVP: Dr Febbo explained that the RSVP included five domains. Certain factors was considered within each domain and each of those factors was scored according to whether it was considered that the factor was present, the factor was absent or the factor was either possibly present or partially present. Dr Febbo's report contained a detailed explanation of his findings on each factor within the five domains. He noted in the summary and opinion part of his report that he had identified as a possible risk factor attitudes that supported or condoned sexual violence.
28 The results of Dr Wojnarowska's assessment were:
(a) Static-99: Dr Wojnarowska gave Mr West a score of seven. That placed Mr West at a high risk of reoffending, specifically 38.8% in five years and 44.9% in 10 years.
(b) PCL-R: Dr Wojnarowska gave Mr West a score of 29, noting that he 'conforms to the prototype of psychopath (score above 25 according to European standards, above 30 according to North American ones)'.
(c) RSVP: Dr Wojnarowska's report on the RSVP was relatively brief. However, like Dr Febbo, she noted that Mr West demonstrated attitudes that condoned sexual violence; he continued to lack insight into his offending and was assessed as having difficulty in self-regulation. She considered that the presence of psychopathy was of concern as it was directly linked to the risk of reoffending. The factors she identified in relation to social adjustment were positive (that is, they diminished rather than exacerbated the risk of future offending). She considered that Mr West's attitude to his offending had not changed despite treatment.
(d) The 3-Predictor Model: Dr Wojnarowska expressed concerns about Mr West's plans on being released and his ability to realise long-term goals such as remaining offence and substance free. She thought that it was likely that Mr West would use his position in the Warburton community to undermine the position of others on his inappropriate sexual behaviour and violence.
29 Neither Dr Febbo nor Dr Wojnarowska diagnosed a major psychiatric disorder. Dr Wojnarowska diagnosed an antisocial personality disorder while Dr Febbo thought that the presence of such a disorder was probable. Both noted a history of alcohol dependence and substance
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- abuse. Dr Wojnarowska made a provisional diagnosis of paedophilia, non-exclusive type. That was based on what she regarded as a predatory type of offending, the offence that had been committed on the male complainant and the age of the female complainants.
The oral evidence
Dr Wojnarowska
30 Dr Wojnarowska explained aspects of her report in her evidence-in-chief. The explanations expanded on but were consistent with what she had stated in her report.
31 The cross-examination of Dr Wojnarowska commenced by exploring limitations on the risk assessment techniques that she had used for the purpose of her report. In summary:
(a) Dr Wojnarowska accepted that the Static-99 test had only moderate predictive reliability for reoffending (ts 47). However, she emphasised that an assessment would not be based solely on the test (ts 49). Her assessment had been multi-factorial, involving clinical judgment and various risk assessment and management instruments.
(b) Dr Wojnarowska also accepted that the RSVP had not been validated for indigenous populations and that it was a tool for managing risk rather than predicting recidivism (ts 50). She did, however, add that the identification of unmet treatment needs, through the RSVP, was relevant to the assessment of the risk of future offending (ts 50).
(c) Dr Wojnarowska stated that the 3-Predictor Model had been developed for indigenous populations. However, she accepted that it could identify factors that were beyond the control of the offender (for example, social factors, racism, the remote residence of the offender or funding issues) (ts 53) and that the model was 'non-specific', relied on information obtained from other people and on 'what's happening within a certain community'. As a result, it referred to and relied on matters that were difficult to test (ts 54 and see the cross-examination of Dr Wojnarowska about the limitations that might be introduced through accepting collateral information at face value at ts 55 and following). Dr Wojnarowska acknowledged in this part of her evidence that
- Mr West had very good family support and that this was a 'protective' factor (ts 54).
- (d) Dr Wojnarowska accepted that the PCL-R test was not designed specifically for predicting the risk of sexual offending. Rather, it assessed the 'personality structure' of the person tested (ts 62). However, Dr Wojnarowska considered that the presence of psychopathy was an important risk factor in sexual reoffending (ts 62).
32 The cross-examination of Dr Wojnarowska regarding the PCL-R was conducted by reference to an article by Mercado and Ogloff, 'Risk and the Preventive Detention of Sexual Offenders in Australia and the United States', International Journal of Law and Psychiatry, 30 (2007) 49 (exhibit 3). They concluded from a meta-analysis that the most robust predictors of sexual reoffending were the presence of psychopathy and sexual deviance. That was a conclusion that was apparently accepted by Dr Wojnarowska.
33 Dr Wojnarowska was examined about a number of aspects of her PCL-R assessment of Mr West - primarily, about whether she had used collateral information that was unreliable; the possible limitations to her assessment and her provisional diagnosis of paedophilia; and the differences between factors relevant to evaluating the risk of reoffending and future treatment needs. I have concluded from her answers that Dr Wojnarowska had been aware of the various matters to which she was referred in cross-examination when she assessed Mr West and prepared her report and that she had made appropriate allowances for them.
34 Dr Wojnarowska accepted during this part of her cross-examination that there was no 'robust' research on whether particular treatment regimes such as group programmes were effective for people with high psychopathic traits. However, she considered that 'preliminary reports' indicated that offenders with psychopathic traits could still be amenable to treatment: 'I think one can moderate certain traits and aim at managing those traits and improving a person's insight and motivation to stay offence-free' (ts 78).
35 Dr Wojnarowska was also closely examined about her RSVP assessment. She accepted that positive, as well as negative, risk factors had been identified - in particular, the support of Mr West's family, good social adjustment within his community and a high motivation not to be incarcerated (ts 91). However, she considered that Mr West required
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- much more individual counselling than he had received in the past. That was because, in her opinion, there were 'unresolved issues' from the past that had not been addressed. She also considered that he required individual counselling to prepare him for intensive group work but added, 'I would say that individual counselling is a very important component, but we do know that the group program in terms of the sex offenders is the recommended form of treatment because of its efficacy'. A group programme was the 'best model' available at present for treatment (ts 93).
36 Dr Wojnarowska explained that an ISOT programme had a residential component with all of the offenders undertaking the programme living within the same residential unit. That was intended to reinforce their learning 'structure' (ts 95). It was put to Dr Wojnarowska that the programme available at Casuarina may not still contain a residential component. She responded that she still considered that Mr West required such a programme even if the residential component was absent. She was then asked whether, '[i]f Mr West were to be in the community is there a combination of programme and individual counselling that could substitute for your recommendation of an intensive sex offender programme?' Dr Wojnarowska replied:
I think it comes to my opinion that I formed predominantly, I have to say, on my interview with Mr West and his presentation to me at that time that his current attitudes towards his past offending were such that I perceived him as a high risk to the community at this point in time. So my answer to your question is no, I don't think that would be sufficient (ts 96).
37 Dr Wojnarowska also stated in relation to Mr West's past involvement in a treatment programme that:
My personal experience is that there are a lot of people who did programmes, even intensive programmes, and didn't get it first time but there was a significant improvement and there were treatment and a lot of treatment goals were achieved. So he may not benefit but the likelihood is that he will because he's cognitively intact, he's motivated (ts 97).
38 In the balance of her cross-examination, Dr Wojnarowska clarified that:
(a) Although she had raised the possibility that Mr West may have been abused as a child, she accepted that there was no specific correlation between sexual abuse as a child and sexual recidivism. However, she added. 'what I'm saying is that any trauma that is not addressed increases the risk of reoffending, be it sexual or non-sexual' (ts 101).
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- (b) She did not know much about Mr West's psychology but the limitations in the information available to her had operated to 'assist' Mr West in the risk assessment as opposed to elevating her assessment of the risk (ts 105).
(c) The reference in her report to 'predatory type of offending' was primarily directed to the offence committed in 2004. She thought that the complainant had not been chosen randomly but rather, was vulnerable because of her age and the fact that she and her companion had been sniffing petrol. She accepted that she was using 'predatory' in a broad sense (ts 105 - 108).
(d) The most essential component of any supervision order would, in her opinion, be a requirement for group and individual treatment (ts 111).
Dr Febbo
39 Much of Dr Febbo's evidence-in-chief was directed to explaining aspects of his report. However, the following matters were particularly relevant:
(a) Dr Febbo explained that a score of 27.8 on the PCL-R was considered to be possible or partial evidence of psychopathy so that Mr West was 'in that sort of range where there may or may not be psychopathy, but certainly there's a lot of features there indicative of pscyhopathy' (ts 134). Dr Febbo considered that his score on the PCL-R indicated that it was 'likely that psychopathy is a significant issue for Mr West' (ts 137).
(b) The question of whether Mr West was sexually deviant was 'one of those risk factors where it remains a query at this point and probably additional information is required' (ts 135).
(c) Dr Febbo accepted that Mr West did not fulfil the diagnostic criteria required for paedophilia, but 'there is a possibility of what is termed a paraphilia not otherwise specified' (ts 139). Paraphilia was regarded as a sexual deviance.
40 Dr Febbo agreed in cross-examination with Dr Wojnarowska's evidence on the limitations in the use and interpretation of the various instruments that had been adopted to assess the risk of Mr West reoffending and the management of that risk. He accepted, in that context, that Mercado and Ogloff had referred to a PCL-R score of at least
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- 30 and to an actual diagnosis of sexual deviancy when they identified psychopathy and sexual deviance as the most robust predictors of sexual recidivism (ts 159). He also accepted that the HCR-20 was a tool that was designed to assess the risk of general reoffending rather than sexual recidivism (ts 161 - 162).
41 In relation to his RSVP assessment:
(a) Dr Febbo accepted Mr West could not be regarded as a violent offender who had on occasions diversified into serious sexual offending so that Mr West's history of violent offending was not necessarily predictive of sexual reoffending (ts 172 - 173).
(b) Dr Febbo also accepted that the report of Mr West's participation in the Aboriginal Sex Offender Treatment Programme in 1997 was positive (ts 174 - 175).
(c) Dr Febbo identified positive aspects in Mr West's presentation and circumstances that were similar to those to which Dr Wojnarowska had referred; for example, family support and a motivation to stay out of prison and in the community (ts 185). He also agreed that there was no direct correlation between sexual abuse as a child and the risk of sexually reoffending. However, like Dr Wojnarowska, Dr Febbo considered that Mr West had not 'done the adequate work in order to address issues related to his background' (ts 185).
(d) Dr Febbo accepted that a 'significant component' of his concern about the possibility of Mr West being managed in the community reflected practical problems such as accommodation and access to services, particularly at Warburton (ts 189). However, he added, '[i]n addition, I do have concerns about Mr West's level of risk based on the fact that I think he needs more treatment' (ts 189).
(e) Further, Dr Febbo did not accept that Mr West could receive the treatment that he considered necessary even if it was assumed that whatever treatment was directed by the court to be provided would be made available. He stated, 'I would have concerns about Mr West being released now even if the intensive programme [ISOT programme] was available in the community because of that period where he is out of the community without adequate treatment - you know, having done adequate treatment' (ts 190). He considered that Mr West required an intensive treatment programme, including a group programme. It was necessary for
- the treatment to be undertaken while Mr West was still in custody as 'at this point Mr West's level of risk is such that he needs that programme, in my view before he is released' (ts 192). Dr Febbo considered that Mr West had 'limited internal barriers in relation to the risk of reoffending' so that it would be appropriate for him to have 'more in the way of internal control mechanisms, awareness, understanding before he is released' (ts 194).
Other evidence in the application
Mr Bell
42 Mr Bell is a psychologist employed with the Department of Corrective Services working in offender management with respect to dangerous sex offenders. He provided a report (exhibit 1/111) that was based upon a review of information contained on the Department of Corrective Services file regarding Mr West's treatment history. So far as was relevant, the history disclosed that:
(a) Mr West had been assessed for inclusion in the ISOT programme in 2010 but he had declined to participate due to the fact that his nephew was in the same programme and he was concerned that his participation might impact upon his nephew's chances of parole. He had subsequently enrolled in the next ISOT programme that was to have been conducted in 2011 at Casuarina prison but the programme had been cancelled.
(b) Mr West was invited to participate in a pilot version of ISOT programme to be run at Greenough Regional Prison in 2011. The report from that programme is considered later in the reasons.
43 Mr Bell observed in his report that Mr West would benefit from participation in an ISOT programme. He advised in his oral evidence that all upcoming ISOT programmes were currently full. However, the Department of Corrective Services had in the past been able to admit into a programme a person who had been the subject of a detention order even though the programme had been fully booked (ts 205). Mr Bell was, nevertheless, unable to say with certainty that Mr West would be able to participate in the programme if he was detained in custody (ts 252). He accepted that it was most likely that Mr West could only participate in an ISOT programme proposed to be conducted in the first and last quarters of 2013 at Bunbury Regional Prison. His participation in either of those programmes would depend on him indicating that he was willing to be
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- relocated to that prison and that there was space for him in the programme (ts 251).
44 Finally, Mr Bell was questioned about the possibility of treatment within the Warburton community. He accepted that there could be some therapeutic advantages to treatment in the community - a prison could provide an artificial environment for treatment (ts 258). However, he noted (in the context of counselling for substance abuse) that the literature suggested that group based treatment tended to be more effective than individual counselling (ts 257). Mr Bell also confirmed that the Department of Corrective Services had in the past provided treatment programmes for indigenous offenders residing in remote communities (ts 257).
Ms Gibbens
45 Ms Gibbens is also employed by the Department of Corrective Services as a team leader with Adult Community Corrections. She is based in Kalgoorlie and has had considerable contact with the Warburton community since she first joined the Department in 1996 (ts 210).
46 Ms Gibbens prepared a community supervision assessment report (exhibit 1/114). The purpose of the report was to set out how Mr West would be supervised by the Department of Corrective Services if the court made an order placing him in the community. The primary focus of the report was on the supervision and management of Mr West in the Warburton community. However, alternative residential options in the Cosmo Newberry community, in the Wanarn community and in Kalgoorlie had been raised. In summary, her report stated that:
(a) Mr West proposed to live at the home of his mother in Warburton if he was released. His immediate family and their respective families would reside nearby.
(b) Ms Gibbens had met with members of Mr West's family and had undertaken a home assessment. At the time of the assessment, four of Mrs West's grandchildren were living with her - two females aged 13 and seven years and two males aged 15 and three years. It was anticipated that the grandchildren would continue to reside with Mrs West. The family agreed to consider alternative sleeping arrangements for the grandchildren if Mr West was released subject to a condition on unsupervised contact with children under the age of 16 years. The family supported Mr West's release into the community and indicated to
- Ms Gibbens that they would encourage Mr West to comply with any conditions that might be imposed if a supervision order was made by the court.
- (c) Ms Gibbens had also met with representatives of the Warburton community who supported Mr West's return. The chairman of the Warburton community, Mr Andrew Jones, expressed concerns about Mr West's past behaviour in the community and indicated his support for conditions including night-time curfews and restrictions on Mr West attending youth facilities. The layout and configuration of the community was such that Mr West would always be within 500 to 1,000 metres of most of the community's facilities and home residences at any one time.
(d) A formal request for permission from the Cosmo Newberry community for Mr West to reside there had been denied.
(e) Mr West's father had stated that he was opposed to Mr West being released to live in the Wanarn community and consequently, no further assessment of the possibility of him residing in that community had been undertaken.
(f) Mr West had applied for accommodation in Kalgoorlie with the Department of Housing in April 2009. His application remained current but Ms Gibbens had been advised that it could be up to another three years before a property became available that corresponded with Mr West's request.
(g) There were limited formal programmes, interventions and community services available in the Warburton community that would be appropriate for Mr West. However, telephone and video conferencing counselling could be arranged and telephone monitoring and reporting could also be made available. Additional monitoring and support would be facilitated through the Warburton community under a community supervision agreement with the Department of Corrective Services, as well as through inter-agency liaison with the Western Australian Police Service and the Department of Community Protection.
(h) One complainant still resided in Warburton. She advised Ms Gibbens that she did not wish to have contact with Mr West and would take steps to avoid him and his family if he was released into the Warburton community. Warburton was no longer the primary place of residence of the other complainants.
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47 Ms Gibbens confirmed in her oral evidence that Mr West's compliance with orders that had been made on his release from prison in the past had been regarded as satisfactory (ts 212). She also confirmed that Mr West's family were aware of the nature of the offences with which he had been convicted, the identity and age of the victims and his history of offending generally (ts 229 - 230). She accepted that the Warburton community was also aware of the nature of the sex offences that had been committed by Mr West (ts 231).
48 As to the facilities available at Warburton, Ms Gibbens stated that:
(a) There was a police facility at Warburton staffed by four police officers. The police lived at Warburton and accordingly, they knew the members of the community (ts 231 - 232).
(b) The Department of Corrective Services considered that it would have capacity to facilitate face-to-face contact with Mr West in Warburton once a week (ts 235).
Other reports
49 Exhibit 1 contained other reports concerning Mr West's participation in various treatment programmes: a report on Mr West's participation in the Aboriginal Sex Offender Treatment programme (exhibit 1/63); a cognitive brief intervention report (exhibit 1/103), an Indigenous Men Managing Anger and Substance Use Treatment completion report (exhibit 1/105), and a Sex Offender Indigenous Medium Programme Treatment completion report (exhibit 1/109). In addition, exhibit 1 contained a clinical assessment using the 3-Predictor Model dated 20 July 2010 (exhibit 1/107) and a document entitled 'Treatment - Sex Offending Checklist, Department of Corrective Services' (exhibit 1/106). I note the following matters in relation to those various reports:
(a) The report on Mr West's participation in the Aboriginal Sex Offender Treatment programme was brief. It noted that 'although Mr West entered treatment accepting full responsibility for sexual offending behaviour he justified the assaults by his understanding of "informed consent''' (exhibit 1/63). However, the general tenor of the report was positive.
(b) There was little information contained in the cognitive brief intervention report about the content of the programme and in particular, the extent to which it was directed to managing the risk
- of sexual reoffending rather than general reoffending. The report was positive about Mr West's participation.
- (c) The report on the Indigenous Men Managing Anger and Substance Use Programme indicated that Mr West had participated in and completed the programme in February 2010. Mr West was regarded as being at the maintenance stage following his participation in the course. Mr Bell explained that this meant that Mr West had identified the treatment targets that he needed to achieve to maintain sobriety and that he had 'enacted his actions that he needs to do to continue to meet those targets' (ts 203).
(d) The report on Mr West's participation in the Sex Offender Indigenous Medium programme, dated 20 September 2011, contained material concerning the circumstances of Mr West's offending that was disputed. I accept that this may have coloured some of the views expressed having regard to the language that is used in parts of the report. However, the report was consistent with the reports and evidence of Dr Wojnarowska and Dr Febbo in that it identified Mr West's lack of insight into the nature of his sexual offending and his lack of empathy for the complainants. The report concluded that Mr West remained at a high risk of reoffending in a 'sexual manner' (exhibit 1, page 491).
(e) The clinical assessment, which was dated 20 July 2010, concluded that Mr West had the 'highest level of treatment need for sexual offending' (exhibit 1, page 476). That was based on an assessment using the 3-Predictor Model. It was recommended that Mr West participate in the ISOT programme.
(f) The 'Treatment - Sex Offending Checklist Document, Department of Corrective Services' document appeared to a management document. I did not consider that the document assisted in determining the question of whether Mr West was a serious danger to the community.
50 Exhibit 1 also contained a psychological pre-sentence report dated 3 August 2005 (exhibit 1/86). The report was prepared following Mr West's plea of guilty for the offence committed in 2004. The author of the report appears to have drawn conclusions regarding Mr West's attitude towards the offence from the statement of material facts. As noted previously, there was some difference between the facts alleged by the prosecution and Mr West's version that was not resolved by
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- Macknay DCJ for the purpose of sentencing. Mr West's counsel contended that the report should be disregarded for that reason (and it was noted that Dr Febbo had not further considered the report; ts 287). In the circumstances, I have noted the report but have not taken it into account in deciding whether Mr West is a serious danger to the community.
51 A similar criticism was made of the clinical assessment using the 3-Predictor Model and indeed, the other reports contained in exhibit (see the closing address of counsel for Mr West at ts 287 and following). I have not disregarded the clinical assessment but I have taken the criticism into account when considering its effect and the views expressed in the other reports.
The relevant legal principles
52 There was no issue between the parties regarding the principles relevant to the DPP's application. In summary:
(a) Section 7(1) of the DSO Act provides that before the court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The expression 'serious sexual offence' has the meaning given to that term in s 106A of the Evidence Act 1906 (WA) (s 3 of the DSO Act).
(b) The DPP carries the onus of satisfying the court about that matter and the court must be satisfied by acceptable and cogent evidence and to a high degree of probability. The expression 'high degree of probability' is incapable of further definition. Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof: Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307 [28] (Steytler P and Buss JA; and see at [34] for a further elaboration on what the expression means in its application).
(c) In deciding whether to find a person is a serious danger to the community the court must have regard to each of the matters specified in s 7(3) of the DSO Act.
(d) It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there
- is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence: DPP v GTR [21].
- (e) The term 'unacceptable risk' is not defined in the DSO Act. However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made: Italiano v The State of Western Australia [2009] WASCA 116 [4] and [46] (Buss JA).
(f) In a passage that expressly approved in DPP v GTR, Wheeler JA stated in Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; 35 WAR 297 [63] - [64]:
In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.
(g) The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced: DPP v GTR [97] (Murray AJA).
(h) The court must identify what, if anything, constitutes the risk and factor or factors makes that risk unacceptable and then consider
- whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence: DPP v GTR [34].
- (i) The court must make a continuing detention order or a supervision order once it is found that the respondent is a serious danger to the community: Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; 38 WAR 217. The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a pre-disposition to making a continuing detention order. As Hall J observed in Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312, '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order' [14].
(j) The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 and Decke.
Finding on whether Mr West is a serious danger to the community
The s 7(3) DSO Act matters
Psychiatric evidence
53 Dr Wojnarowska and Dr Febbo each concluded that there was a high risk of Mr West sexually reoffending. Although they did not draw the distinction, it was to be readily inferred from their reports and oral evidence that the risk to which they referred was the risk of Mr West committing further offences of a similar nature to those for which he had been convicted; that is, serious sexual offences.
54 Each doctor formed their opinions by adopting a multi-factorial approach to risk assessment that involved clinical judgments based on interviews with Mr West, the information with which they had been provided for the purpose of their reports and the application and interpretation of instruments which they considered to be relevant to risk assessment and management. They were cross-examined about particular aspects of the instruments that they used to expose their limitations. They were also cross-examined on their interpretation of the results to identify
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- any uncertainty about or qualifications to their assessments. Those were matters which were properly explored by counsel for Mr West. However, it is important not to allow the parsing of complex evidence to obscure its overall effect.
55 The matters put in cross-examination elicited considered and balanced responses from Dr Wojnarowska and Dr Febbo and in my view, their oral evidence did not significantly qualify the opinions that they had expressed in their reports.
56 Four points emerged from the evidence of Dr Wojnarowska and Dr Febbo that I regarded as being especially significant:
(a) Most obviously, both Dr Wojnarowska and Dr Febbo concluded that Mr West had a high risk of sexual reoffending.
(b) There was substantial agreement between Dr Wojnarowska and Dr Febbo over the reasons for that conclusion. Their clinical assessment of Mr West was similar. In particular, Mr West lacked insight into his sexual offending - denying or minimising the nature of the offending and portraying himself as a victim. He had unmet treatment needs that were significant for the risk of sexual reoffending.
(c) Dr Wojnarowska and Dr Febbo achieved similar outcomes from the risk assessment and management instruments that they employed and their interpretation of the results obtained was consistent. Although they allocated a PCL-R score below the 30 point cut-off adopted in the United States, they regarded Mr West as possessing significant psychopathic traits. Dr Wojnarowska made a provisional diagnosis of paedophilia, non-exclusive. Dr Febbo was more guarded in his diagnosis but identified the possibility of sexual deviance.
(d) They agreed that Mr West needed to participate in an intensive treatment programme in the hope that the risk of him committing sex offences in the future would be mitigated. They each stressed the need for group and individual counselling. Significantly, Dr Febbo considered that Mr West needed to complete an intensive treatment programme prior to be released into the community given the view that he had formed about the risk of reoffending. I consider that the effect of Dr Wojnarowska's evidence as whole was consistent with and supported that conclusion.
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57 It is necessary to note four further points about those matters.
58 First, Mercado and Ogloff referred to studies that suggested that 'clinical presentation variables often deemed quite relevant to treatment [of sex offenders], such as lack of victim empathy…denial of sexual crime …and minimisation of sexual offence' bore little relationship to sexual recidivism (exhibit 3, page 53). Dr Febbo was questioned about that proposition. He stated that he agreed that the research literature was unclear about 'the issue of minimisation and denial of sexual offending as being a risk factor in relation to the extent of reoffending' (ts 153). However, he noted that Mercado and Ogloff had also reported that:
Some research, however, has shown that poor social supports, intimacy deficits, attitudes tolerant of sexual assault, antisocial lifestyle, poor self-management, poor cooperation with supervision, sexual preoccupations, access to victims, failure to acknowledge the risk of recidivism, and sharp increases in anger or other emotional states are important dynamic factors that seem to differentiate sexual recidivists and non-recidivists (page 55).
59 Dr Febbo considered that minimisation, denial and attitudes that were tolerant of sexual assault were clinically important when considering a particular offender: 'in one individual issues related to denial and minimisation may be very significant and very important and need to be considered in relation to risk and in relation to treatment' (ts 153). That response was, in my view, consistent with the effect of Dr Wojnarowska's report and evidence. I accept the opinions expressed by Dr Wojnarowska and Dr Febbo that Mr West lacked insight into his sexual offending and empathy for the complaints, that he had minimised his role in the offences and that the RSVP had disclosed a tolerant attitude towards sexual offending. I further accept that those matters were relevant and significant factors in assessing the risk of Mr West sexually offending in the future.
60 Second, counsel for Mr West suggested in closing that Dr Wojnarowska had made some errors of fact about the circumstances of Mr West's offending in her report (ts 284). The matters to which reference was made did not, in my view, affect the cogency of the opinions expressed by Dr Wojnarowska having regard to whole of her evidence and the instances that were identified by counsel.
61 Third, as Dr Febbo explained, DSM-IV contains diagnostic criteria for paedophilia that refer to prepubescent children 'generally aged 13 years or younger'. Accordingly, he did not diagnose paedophilia (ts 132).
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- Dr Wojnarowska explained her provisional diagnosis of non-exclusive paedophilia for Mr West in the following terms:
… so at the age of 15 one takes into consideration not only the physical development but also the mental development of the person. From lots of perspectives, and certainly from my perspective also as a child-adolescent psychiatrist, someone who is 15, developed mentally still belongs to the category of children…(ts 74)
63 The significance of this evidence was not, in my view, the precise form of the provisional diagnosis but rather, that both doctors had formed a preliminary view that some form of sexual deviance might be present. It was plain that they considered this to be a factor that was relevant to risk assessment even though a clear diagnosis had not been made. The tenor of their evidence on this issue and on the significance of the PCL-R score for psychopathy was that there was a spectrum rather than a precise point (a clear diagnosis or a score of more than 30) at which the risk of future sexual offending was suddenly manifested. I accept their approach.
64 Fourth, Dr Wojnarowska and Dr Febbo accepted that there were limitations in the use of the various risk assessment instruments that they had employed. However, it was clear that they were conscious of those limitations when undertaking their assessments. Further, their conclusions were based on a multi-factorial approach.
Other assessments
65 The other assessments contained in exhibit 1 were briefly summarised earlier in the reasons. Two relevant points emerged. First, in my view, they demonstrated that Mr West was willing to participate in treatment programmes in a way that was generally satisfactory. I accept the evidence to the effect that he was motivated to remain out of prison and in the community. Second, the reports were consistent with the opinions expressed by Dr Wojnarowska and Dr Febbo regarding Mr West's lack of insight into his sexual offending and empathy for the complainants, his minimisation of his sexual offending and his treatment needs.
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Other information concerning a propensity to commit serious sexual offences in the future
66 Mr West has a long criminal history related to substance and alcohol abuse. However, I accept that Mr West had not been sentenced for any sex offence on the basis that alcohol had been a direct cause of the offence. Accordingly, I also accept Dr Wojnarowska's evidence that alcohol was not a particular risk factor when considering the likelihood of Mr West committing a serious sex offence in the future (ts 79). That said, both Dr Wojnarowska and Dr Febbo were concerned by Mr West's history of alcohol abuse and the disinhibiting effect that excessive alcohol consumption might have on his behaviour.
67 Obviously, there was a considerable gap in time between the offences committed by Mr West in 1995 and 2005. The significance of that gap was diminished by the fact that Mr West was in custody during that time so that there was a period of only five years and nine months when he was in the community at Warburton (ts 273). There was, within that period, no sex offence committed for approximately three years and six months.
68 Mr West's sexual offending involved complainants who were young and vulnerable, with Mr West exploiting that vulnerability. I consider that Dr Wojnarowska accurately characterised Mr West's behaviour as disclosed by the offences as involving a 'broad kind' of predatory conduct. There was some physical coercion in relation to one offence.
69 Further, I accept the DPP's submission that there was evidence that Mr West was able to 'have these young people do as he asked' (ts 274) when committing the other offences - whether because of their age, particularly relative to his age, or because of his position in the community at Warburton. Dr Febbo considered that there was an element of psychological coercion (ts 138): 'the issue with psychological coercion is that I sort of took into account Mr West's role in the community, his age and that the children were young and they were vulnerable. There would have been an expectation that there would have been a degree of trust …'. I accept that evidence. In my view, it was significant for the purpose of assessing the risk of Mr West sexually reoffending when considered with his apparent lack of insight regarding the nature of his offending and his attitude towards the complainants. It was not clear whether Mr West's offending against children in their early adolescence reflected a deviant sexual interest or a recognition that they were vulnerable and susceptible to the psychological coercion to which Dr Febbo referred.
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Mr West's participation in rehabilitation programmes
70 I accept that Mr West satisfactorily participated in and completed the Aboriginal Sex Offender Treatment programme and the Indigenous Men Managing Anger and Substance Use programme. I further accept that Mr West has demonstrated a willingness to participate in appropriate rehabilitation programmes.
71 There was, however, a residual concern expressed by Dr Wojnarowska and Dr Febbo regarding Mr West's use of alcohol despite his completion of the substance use programme. Both doctors considered that Mr West would benefit from further treatment for alcohol abuse. Dr Febbo, in particular, was concerned that Mr West was not able to articulate to him an appropriate plan to avoid alcohol consumption in circumstances where there had been a long history of substance and alcohol abuse (ts 140).
72 The report on Mr West's participation in the Sex Offender Indigenous Medium programme was guarded; indeed, it might accurately be described as negative. The report was criticised by counsel for Mr West on the ground that it contained inaccuracies regarding Mr West's offending that affected the views that were expressed. I did not consider that it was necessary to reach a conclusion on those criticisms. That was because I accepted the evidence of Dr Wojnarowska and Dr Febbo that Mr West has treatment needs that have not been addressed and which are significant in assessing the risk of him reoffending.
The pattern of offending
73 The pattern of Mr West's offending has been briefly identified earlier in the reasons when considering the evidence relevant to his propensity to commit serious sexual offences in the future. Mr West's counsel rightly conceded that there was a pattern to Mr West's sex offending that was expressed in the matters to which reference was made in that section of the reasons (see at ts 293).
Mr West's antecedents and criminal record
74 As has already been mentioned, Mr West has a lengthy criminal record, including for offences involving violence. However, I accept the evidence of Dr Wojnarowska and Dr Febbo that Mr West's sexual offending was not merely a diversification of his otherwise violent offending (Dr Wojnarowska, ts 94; Dr Febbo, ts 173). Both doctors
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- agreed that Mr West's sexual offending was separate from his other offending.
The risk that Mr West would commit a serious sexual offence
75 I accept the evidence of Dr Wojnarowska and Dr Febbo that Mr West is at a high risk of sexual reoffending. I further accept their evidence regarding the reasons for that assessment and the need for Mr West to undertake further treatment in an attempt to ameliorate that risk.
Conclusion
76 I find that there is a high risk that Mr West would commit a serious sexual offence in the future if a continuing detention or supervision order was not made and that the risk is unacceptable within the meaning of s 7(1) of the DSO Act notwithstanding the consequences of such a finding for Mr West. I have placed considerable weight on the evidence of Dr Wojnarowska and Dr Febbo, although, in doing so, I have been mindful of the observations of Steytler P and Buss JA in GTR about the role of psychiatric reports [57] - [62]. However, the reports and evidence of Dr Wojnarowska and Dr Febbo were supported by and were consistent with the other assessments in exhibit 1 and the circumstances of Mr West's offending to the extent that has been identified in the reasons.
77 In particular, I find that the risk of Mr West committing a serious sexual offence unacceptable if a continuing detention or supervision order was not made having regard to the following matters:
(a) The likelihood of Mr West committing a serious sexual offence in the future - I have accepted the assessment made by Dr Wojnarowska and Dr Febbo that the risk is high.
(b) The reasons for that assessment identified by Dr Wojnarowska and Dr Febbo and the supporting evidence in the reports forming part of exhibit 1 - see the discussion of the psychiatric evidence and other assessments in the earlier section of the reasons concerning the s 7(3) DSO Act matters.
(c) The fact that the sex offences that Mr West has committed have been serious sex offences and the circumstances in which the offences were committed - the pattern of offending and what that demonstrated about Mr West's propensity to commit a sex offence in the future. Those matters suggest that any sex offence that Mr West might commit in the future would be a serious sexual
- offence involving children in early adolescence who would be vulnerable by reason of their age and Mr West's age and position in the Warburton community.
- (d) The need for Mr West to receive further treatment - I have accepted the evidence given by Dr Wojnarowska and Dr Febbo that Mr West requires further treatment if the risk of him reoffending is to be moderated.
78 Comment has already been made about the integrity and consistency of the evidence given by Dr Wojnarowska and Dr Febbo. In relation to material contained in exhibit 1, apart from the reports of Dr Wojnarowska and Dr Febbo:
(a) I only had regard to the sentencing remarks of the sentencing judges for the purpose of determining the circumstances of Mr West's sexual offending.
(b) I accept that aspects of the report of Mr West's participation in the Indigenous Sex Offender Treatment programme may convey an impression regarding the circumstances of Mr West's offending that was more adverse to him than the facts on which he was sentenced. I further accept that this may have coloured the language used in parts of the report. I have noted that other reports contained statements about Mr West's offending that were not admitted by him or proved against him.
(c) I have not taken into account the psychological report dated 3 August 2005.
79 I otherwise find that the evidence on which the DPP relied was acceptable and cogent and that the findings that have been made were based on evidence that satisfied that requirement. Finally, I am satisfied that the DPP has discharged the onus of establishing that Mr West is a serious danger to the community to a high level of probability.
Continuing detention or supervision order?
80 I accept the evidence of Dr Wojnarowska and Dr Febbo that:
(a) it is necessary for Mr West to participate in a ISOT programme and that he also requires individual counselling;
(b) the 'best model' of treatment available involves group counselling;
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- (c) Mr West has unmet treatment needs that are directly relevant to his risk of sexual reoffending.
81 Dr Febbo was firm in his evidence that Mr West required further treatment before he was released into the community in the hope that the high risk of sexual reoffending would be mitigated. I accept that evidence.
82 Although Dr Wojnarowska’s evidence on the point was less emphatic, she emphasised that Mr West required group counselling, as well as intensive individual counselling. She linked that need with his risk to the community in a passage from her evidence (ts 96) that was reproduced earlier in the reasons. It appeared that there was no substantive difference between Dr Wojnarowska and Dr Febbo on the need for Mr West to receive further treatment prior to his release into the community if the risk of sexual reoffending was to be ameliorated and managed.
83 Further, Dr Wojnarowska and Dr Febbo agreed on the form of treatment that Mr West required - group and individual counselling. Group counselling of the kind that they considered Mr West required cannot be provided in Warburton and they both recommended that Mr West participate in the ISOT programme conducted by the Department of Corrective Services in various prisons. While I accept that it might be possible to provide individual counselling to Mr West in Warburton, it was clear from the evidence of Dr Wojnarowska and Dr Febbo that group counselling was a primary treatment need. I also had some doubt whether individual counselling of the intensity that Dr Wojnarowska and Dr Febbo considered Mr West required, at least initially, could be provided at Warburton. Those considerations override, in my view, the positive benefit that Mr West might derive from family support in the Warburton community.
84 The paramount consideration in determining whether to make a continuing detention or supervision order is the need to ensure adequate protection of the community (s 17(2) DSO Act). In my view, the community can only be adequately protected, at this time, by a continuing detention being made so that Mr West may receive further care and treatment of the kind recommended by Dr Wojnarowska and Dr Febbo. I accept their evidence that Mr West may benefit from intensive group and individual counselling and Mr Bell's evidence that arrangements will most likely be made for Mr West to receive that form of treatment if he continues to be detained.
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85 I do not consider that the evidence concerning the availability of police and other agencies to monitor Mr West in the Warburton community established that the high risk of Mr West offending in the future could be acceptably managed if a suppression order was made at this time. That is especially given Mr West's pattern of offending and the reality that in a small community, such as Warburton, Mr West would always be in close proximity to young adolescents.
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