The State of Western of Australia v Decke [No 3]
[2018] WASC 421
•2 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN OF AUSTRALIA -v- DECKE [No 3] [2018] WASC 421
CORAM: FIANNACA J
HEARD: 12 JUNE 2018
DELIVERED : 2 JULY 2018
FILE NO/S: MCS 36 of 2009
BETWEEN: THE STATE OF WESTERN OF AUSTRALIA
Applicant
AND
BRIAN JOHN DECKE
Respondent
Catchwords:
Criminal Law - Dangerous sex offender – Respondent remains serious danger to the community – Not satisfied that the respondent would substantially comply with supervision order - Continuing Detention Order affirmed – Turns on own facts
Legislation:
Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA)
Evidence Act 1906 (WA)
Result:
Continuing Detention Order Affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr B Meertens |
| Respondent | : | Mr D J McKenzie |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | David McKenzie Legal Pty Ltd |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312
Director of Public Prosecutions for Western Australia v Decke [No 2] [2017] WASC 119
The State of Western Australia v A [2018] WASC 250
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Latimer [2006] WASC 235
FIANNACA J:
The application and outcome
This is the first annual review of a continuing detention order under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). The review was heard on 21 June 2018. At the conclusion of the hearing I reserved my decision. On 2 July 2018 I announced my decision affirming the continuing detention order. I gave short reasons, substantially in terms of the summary which follows, and said I would publish detailed reasons in due course. These are my reasons for affirming the continuing detention order.
Summary of findings
The order under review was made by me on 20 April 2017 at the conclusion of proceedings in respect of the contravention by the respondent, Brian John Decke, of a supervision order under the DSO Act. That order had been made on 29 October 2009 by Hall J at the conclusion of Div 2 proceedings under the DSO Act.[1]
[1] Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 (Decke).
After hearing evidence in the contravention proceedings, I rescinded the supervision order, having concluded on the balance of probabilities that there was an unacceptable risk that the respondent would commit a serious sexual offence if a continuing detention order was not made.[2] That finding was in accordance with the legislation as it applied at that time.[3] I was satisfied that the respondent's risk of committing a serious sexual offence had escalated to a level where a supervision order no longer provided adequate protection of the community.
[2] Director of Public Prosecutions for Western Australia v Decke [No 2] [2017] WASC 119 (Decke [No 2]).
[3] Dangerous Sexual Offenders Act 2006 (WA) (as amended at 28 April 2017) s 23(1)(b).
In my reasons in 2017, I identified a number of factors which informed my conclusion about the respondent's level of risk.[4] In particular, I referred to the respondent's lack of insight in relation to his offending, his very poor understanding of his paedophilia, and the fact that he continued to have a poor understanding of his risk factors and situations that put him at high risk of committing a serious sexual offence. I also was concerned that, during the time that he was under the supervision order, the respondent had repeatedly demonstrated a lack of honesty and reliability. I noted that his contravention of the conditions of the supervision order demonstrated an obstinate resistance to the constraints that had been placed on him for the adequate protection of the community.[5] I noted that the respondent continued to challenge the need for some of the conditions. Further, I concluded that his breaches evinced an increase in the risk that he would commit a serious sexual offence.
[4] Decke [No 2] [137] - [138].
[5] Decke [No 2] [138].
It was my view in 2017 that the factors I identified needed to be addressed and, unless there was an improvement in the respondent's circumstances, his risk was not likely to abate to a level where a supervision order would provide adequate protection of the community. I referred to the need for the respondent to be given an opportunity to participate in an intensive sex offender treatment program (ISOTP), as that had been identified as a measure that may assist him, although the expectations of success were not high.
On the evidence presented in this review, I am satisfied to a high degree of probability that the respondent continues to be a serious danger to the community, in that there is an unacceptable risk that if he is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. Further, I am satisfied that his circumstances have not improved since 28 April 2017.
The respondent did participate in the ISOTP and he has had individual counselling. Unfortunately, however, he has not demonstrated retention of what he has learnt from that combination of treatment. It is regrettable, but the low expectations of success at the time of the contravention proceedings in 2017,[6] appear to have been well‑founded, in that the ISOTP was not able to address, in an enduring manner, the needs that I had identified. That is not to say that continued treatment may not assist to reduce the respondent's risk in the future. However, the evidence given by Dr Wynn Owen in these proceedings suggests that the focus of treatment may now need to change. The focus should be on implementing practical measures that will reduce the risk of the respondent placing himself in circumstances in which he might again commit a serious sexual offence or engage in conduct that will put him on a course leading to the commission of such an offence.
[6] At the Div 2 proceedings in 2009, the evidence suggested that participation in an ISOTP may not reduce the respondent's risk of re-offending: see [16] below.
I am not satisfied that a supervision order would provide adequate protection of the community at this point in time. In particular, I am not satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order, which is a prerequisite to the making of a supervision order. I have come to that conclusion because of the respondent's continuing resistance to the notion that conditions are necessary to control his risk within the community. The respondent also continues to have a lack of insight into his paedophilia and the risks of conduct that may lead him to commit a serious sexual offence.
Having decided to affirm the continuing detention order, at the conclusion of these reasons I will address the recommendations that have been made to improve the respondent's prospects of release on a supervision order in the future.
Background
These reasons are to be read in conjunction with my reasons in Decke [No 2]. In those reasons I described the history of the matter. The following summary is sufficient to outline the background for present purposes.
The respondent committed a number of sexual offences, mainly against female children, from July 1982, when he was 31 years old, until January 2005, when he was 53. The most serious of his offences involved:
(1)indecently dealing with a nine-year-old girl he was babysitting in 1982;
(2)an indecent assault on a young woman in a public place in July 1996. He accosted the young woman while he was naked from his waist down. When she tried to ignore him, he grabbed her around the neck from behind and dragged her backwards until she was able to break away;
(3)indecently dealing with a child who was a lineal relative, being his five‑year‑old granddaughter, in January 2005. He was staying at his son's house. His granddaughter had gone into the lounge room with her sister to watch television and was lying on the lounge suite when the respondent placed his hand inside the leg opening of her underwear. He pulled his hand out when he was disturbed by his son coming into the room.
From 1987 until 2002, the respondent was convicted of numerous offences of wilful exposure which consisted generally of exposing himself to female children or young women and masturbating in their presence.
For the indecent assault in July 1996 and the offence of indecently dealing with a child who was a lineal relative in January 2005, the respondent was sentenced to terms of imprisonment. For the last of those offences he was sentenced to 2 years and 5 months' imprisonment on 1 March 2007.
The respondent served the full sentence. He was not released on parole because he had not completed an ISOTP. That was due to the unavailability of a program to the respondent, largely as a result of timing. He had been assessed as requiring treatment under such a program before he could be released. It was in the context that the respondent had not completed such a treatment program and was likely to be released into the community without the benefit of supervision that the Director of Public Prosecutions for Western Australia (DPP) made an application under the DSO Act. The application was for a continuing detention order or a supervision order under Div 2 of the DSO Act, on the basis that the respondent was a serious danger to the community, in that there was an unacceptable risk the respondent would commit a serious sexual offence if he was not subject to one of those orders.
On 29 October 2009, Hall J found that the respondent was a serious danger to the community. On the evidence before him, his Honour was satisfied that the community could be adequately protected, at that stage, by releasing the respondent on a supervision order for a period of 10 years, subject to 42 conditions formulated to ensure adequate monitoring of the respondent, control of his behaviour and continuing treatment intended to reduce his risk of sexual offending in the future.
In concluding that the respondent was a serious danger to the community, Hall J relied on the respondent's history of offending, evidence that attempts to treat his deviant sexual behaviour had failed, and evidence which suggested that, even if he were to engage in an ISOTP, it may not reduce the risk of his reoffending.[7] However, his Honour was of the view that requiring a person to undergo treatment was not the only way in which to reduce risk to an acceptable level. Dr Febbo, a psychiatrist who assessed the respondent for the Div 2 proceedings, identified a number of factors that were likely to be associated with any future serious sexual offending, including psychosocial stress, isolation and the absence of a relationship with an adult female, leading to a deterioration of the respondent's mental state.[8] Hall J concluded on that evidence, that the respondent's sexual offending followed a pattern that made risk factors predictable, and if such risk factors could be avoided by imposing strict conditions in a supervision order, then the risk that he would commit a serious sexual offence may be substantially obviated.[9] As I noted in Decke [No 2]:
While his Honour took a number of factors into account in deciding to release the respondent on a supervision order for 10 years, it is clear, in my opinion, that his Honour considered appropriate conditions would provide early warning flags that the respondent's risk of serious sexual offending was increasing, if breached, and that was a significant safeguard in ensuring the adequate protection of the community [40].
[7] Decke [58] – [59].
[8] Decke [48].
[9] Decke [32], [59].
The respondent contravened the supervision order on a number of occasions during 2014 and 2015. The contraventions were set out in a table at [45] of Decke [No 2]. In summary, the contraventions that were of particular relevance to the respondent's risk of committing a serious sexual offence consisted of:
(1)having contact with a child under the age of 17 years and failing to report the contact to his Community Corrections Officer (CCO);
(2)failing to comply with lawful directions preventing him from entering certain areas;
(3)failing to comply with a lawful direction requiring him to return to or remain at his residence and charge the transmitter of the GPS device he was required to carry, if it was indicating a low battery;
(4)collecting images of children (which were found on his iPad and his mobile telephone). Some images were from a festival event. Others were of children in school uniforms, taken from the respondent's home and from a nearby 'Men's Shed';
(5)committing an offence under s 557K(6) of the Criminal Code (WA), in that, being a child sex offender, without reasonable excuse he was in or near a public place where children are regularly present;
(6)committing an offence contrary to s 203 of the Criminal Code (doing an indecent act in public), by taking photographs up the skirts of two unsuspecting women on a train; and
(7)conducting computer searches of children.
The respondent was charged under s 40A of the DSO Act in respect of the contraventions. At various times he was also charged with other offences arising from the contravening conduct, including offences under s 557K and s 203 of the Criminal Code. The last of the contraventions involved possession on an electronic storage device of 15 images of children, 13 of them amounting to child exploitation material, showing children in a demeaning and offensive context. Two of them showed children in a sexual context. In respect of the 13 images, he was charged with an offence under s 220 of the Criminal Code of being in possession of child exploitation material. He was convicted of that offence after a trial by jury in the District Court and sentenced on 8 June 2016 to 6 months and 1 day's imprisonment.
On 4 November 2016, he was sentenced in the Perth Magistrates Court to a total effective sentence of 14 months' imprisonment for two of the s 40A offences and four counts of failing to comply with his reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA), contrary to s 63(1) of that Act.
Although no formal admission (that he contravened the supervision order) was made on behalf of the respondent in the contravention proceedings, the contraventions, as particularised, were not denied. On the contrary, the particulars were tendered as agreed facts. At [47] to [59] of Decke [No 2], I assessed the contraventions in terms of whether, and to what extent, they indicated an increase in the respondent's risk of committing a serious sexual offence. Although the contraventions overall demonstrated the respondent's preparedness to flout the conditions of the supervision order, some were at a relatively low level of seriousness and carried little weight in terms of the relevant risk. However, the contraventions involving the taking or possession of images of children, predominantly girls, from primary school age to teenagers, were of particular concern. The respondent told Ms Hutchings, the Senior Community Corrections Officer (SCCO) who prepared a Performance Report for the contravention proceedings, that he wanted to have photographs of children he could view regularly, because he missed his own children and grandchildren. He denied any sexual arousal when viewing the images. As I noted:[10]
Given his deviant sexual interest in children, the nature of some of the photographs and the fact that he was also in possession of child exploitation material, his denial rings hollow, and his explanation lacks plausibility.
[10] Decke [No 2] [53].
I went on to find:[11]
Of greatest concern, in my opinion, is the respondent's possession of child exploitation material on 20 April 2015, particularly when one considers that at the same time he had photographs of children on his phone that either he had taken near his place or he had accessed electronically. It appears from Ms Hutchings' report that the respondent's explanation for retaining images of children included the images constituting child exploitation material. That is particularly troubling, given that at least two of the images showed children in a sexual context.
[11] Decke [No 2] [57].
Further, I noted my agreement with the assessment of Stone DCJ at the time he sentenced the respondent in the District Court for the child exploitation material, as follows:[12]
Whilst I accept that it's at the lowest level, which is level 1, and there are not a large number of images, you committed this offence whilst the subject of a dangerous sex offender order … for child sex offences which makes your possession in the circumstances more sinister in my view because of your … deviant sexual interest in children.
[12] Decke [No 2] [58].
I found that the later contraventions 'constituted warning flags that the respondent's risk of committing a serious sexual offence was increasing', and that the conclusion was supported by the psychiatric and psychological evidence at the hearing.[13]
[13] Decke [No 2] [59].
The contraventions had to be considered against the background of the assessment that had been made of the respondent's deviant sexual interest in children, and his risk of offending, at the time he was being sentenced in 2007. It is appropriate to repeat Hall J's summary in Decke of the psychologist's conclusions in the report prepared in 2007:[14]
The psychologist concluded that Mr Decke's interest in deviant sexual activities, namely exposing himself to strangers and his sexual interest in children, appeared to be pervasive and deeply entrenched. It was also noted that past interventions to address this issue appeared to have been largely unsuccessful. It was considered to be of paramount importance that Mr Decke be monitored to ensure that his opportunity to reoffend is limited by environmental factors. Unsupervised access to children was said to be something that should be strenuously avoided.
[14] Decke [38].
On the basis of the evidence in the contravention proceedings, in particular the Performance Report of Ms Hutchings, and also that of Dr Brett, a consultant psychiatrist, and Dr Galloghly, a clinical psychologist, both of whom assessed the respondent for those proceedings, I arrived at the following conclusions:[15]
The respondent has continued to demonstrate a lack of insight in relation to his offending. He has a very poor understanding of his paedophilia. He continues to have a poor understanding of his risk factors and of high risk situations. He has demonstrated repeatedly a lack of honesty and reliability.
His contraventions of the conditions of the supervision order demonstrate an obstinate resistance to the constraints that have been placed on him for the adequate protection of the community. He has continued to challenge the need for some of the conditions. Moreover, his breaches evince an increasing risk that he would commit a serious sexual offence. As Dr Brett put it, 'if he hadn't been breached and placed in custody then a serious offence may have occurred'.
The respondent's attitude of denial and minimisation of offending has deteriorated since 2009. As I noted earlier, his account to Dr Brett of the incident involving his five-year-old granddaughter in 2005, which was the last serious sexual offence of which he was convicted, causes me to have great concern about the escalation of his risk of committing a serious sexual offence. As Dr Brett acknowledged, it indicates cognitive distortion, at the present time, about his sexuality and the capacity for sexual behaviour of young children. It confirms my conclusion, supported it seems to me by the evidence of Dr Brett, that the respondent's possession of the child exploitation material and the other images of children was a red flag that he was on the path to committing a serious sexual offence.
The respondent continues to have a sexual drive. He has claimed that he wanted to have images of children to remind him of his children and grandchildren. I have found that to be implausible, but even if there was an element of affection in the respondent's attitude to children with whom he may come into contact, he has acknowledged that he has difficulty in differentiating between love and sex. It seems to me that this exacerbates the risk that he would act on his deviant sexual interest in female children in such circumstances.
The respondent has outstanding treatment needs. I am satisfied on the basis of Dr Galloghly's evidence that those needs would be best met at this stage by his participation in an ISOTP in conjunction with individual therapy. As Dr Galloghly suggested, being challenged by peers about his beliefs, attitudes and behaviour may provide a more powerful impetus for change than being challenged in individual therapy. This would appear to be particularly apt in the respondent's case given that in 2009 to 2010, when Ms Ballantyne and the management team thought the respondent had made gains, he was of the view that counselling had not been effective and he did not trust the psychologist.
I am satisfied that the respondent's risk that he will commit a serious sexual offence has become unacceptable within the community under the current supervision order. Further, I do not consider that the proposed amendments and additions to the supervision order would provide adequate protection of the community against that risk at this stage. That is essentially because of the respondent's lack of honesty and reliability and his resistance to supervision in recent years.
[15] Decke [No 2] [137] – [142].
In relation to the respondent's lack of honesty, I acknowledged that in the early stages of his supervision the respondent was open about incidents in which he was with children, while either accepting or providing transport to others, and that he had given access to his electronic devices when requested during reporting to police.[16] However, I concluded that the overwhelming picture was that he had not been honest or reliable in recent years, and that he was often untruthful and avoidant when asked questions in supervision sessions about what was really going on in his life.[17] That made it harder during such sessions to identify some of the risk factors that had been referred to by Dr Febbo, such as psychosocial stress and mental deterioration.
[16] Decke [No 2] [143].
[17] Decke [No 2] [143].
I noted the need for change in the respondent's insight and behaviour:[18]
Until the respondent demonstrates that he is prepared to be open and honest about his plans and activities, and that he understands the purpose of the conditions of a supervision order and accepts his obligation to comply, the court could have no confidence that he would comply with the conditions of such an order which he has previously flouted repeatedly.
[18] Decke [No 2] [144].
Dr Brett had expressed the view that, given the respondent's deep‑rooted issues, his risk would not reduce significantly if he remained in prison. I noted, however, that the question is not whether the respondent's risk will reduce in prison, but whether his level of risk is unacceptable within the community under a supervision order.[19] I was satisfied on the balance of probabilities that there was an unacceptable risk that, if a continuing detention order was not made, the respondent would commit a serious sexual offence.
[19] Decke [No 2] [145].
As to the treatment and management of the respondent, I said:[20]
It would be the court's expectation that the respondent will be given the opportunity, commencing as soon as possible, to engage in an ISOTP and individual therapy, with a view to enabling him to demonstrate over the next year that his risk can be managed under a suitable supervision order in the future. As time passes, his age will continue to mitigate his risk, but it is to be hoped that his prospects of release in the future will turn on his capacity and preparedness to change, rather than the march of time.
[20] Decke [No 2] [147].
Statutory provisions and legal principles applicable in these proceedings
When a person is in custody pursuant to a continuing detention order, the detention must be reviewed by the court, on application by the DPP, in accordance with pt 3 of the DSO Act. The first review must occur as soon as practicable after the end of a period of one year commencing on the first day on which the person is in custody solely on the basis of the continuing detention order.[21]
[21] Dangerous Sexual Offenders Act s 29(2)(a).
The purpose of a review is to determine whether the person continues to be a serious danger to the community and, if so, whether the appropriate order is continuing detention or release of the respondent subject to a supervision order (i.e. an order that he be subject to stated conditions that the court considers appropriate, which must include a number of standard conditions).[22] If the person is no longer a serious danger to the community, the detention order must be rescinded.[23] If the person continues to be a serious danger to the community, the court must either affirm the continuing detention order or rescind that order and make a supervision order.[24] In making that decision, the paramount consideration is the need to ensure adequate protection of the community.[25]
[22] Dangerous Sexual Offenders Act s 33, read with s 3 (definitions), s 17 and s 18.
[23] Dangerous Sexual Offenders Act s 33(1)(a).
[24] Dangerous Sexual Offenders Act s 33(1)(b).
[25] Dangerous Sexual Offenders Act s 33(3).
The legal principles applicable on a periodic review, and the appropriate approach to the decision to be made between continuing detention and a supervision order, have been identified and discussed in a number of authorities and were canvassed by me in some detail in Director of Public Prosecutions (WA) v Pindan [No 3](Pindan [No 3]).[26] Subject to the requirement now in s 33(4) (see below), which was not in operation at the time of Pindan [No 3], the principles and approach discussed in the earlier authorities continue to apply. In particular, I respectfully adopt Hall J's analysis of the annual review process in Director of Public Prosecutions (WA) v Unwin [No 3][27] (Unwin [No 3]) (which his Honour reiterated, with some elaboration, in The State of Western Australia v Corbett [No 5]).[28] The key principles may be summarised as follows.
[26] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [22] - [32].
[27] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] - [18].
[28] The State of Western Australia v Corbett[No 5] [2017] WASC 115.
Detention under the DSO Act is not punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. As Hall J noted in Unwin [No 3], '[i]t is a significant thing to deprive a person of his liberty, not for something he has done but for something that he might do in the future'.[29] The review process is intended to allow for the possibility of a change of circumstances. If circumstances change such that the risk of reoffending reduces, it may be that, the risk can be reduced to an acceptable level by the making of a supervision order.
[29] Unwin [No 3] [15].
Although, in practice, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community,[30] the first question the court must consider, nevertheless, is whether it is satisfied to a high degree of probability, on acceptable and cogent evidence, that there remains an unacceptable risk that the respondent will commit a serious sexual offence if not subject to a continuing detention order or supervision.[31] If the court is so satisfied, then, in deciding whether to affirm the detention order or release the respondent on a supervision order, the court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community.[32]
[30] Pindan [No 3] [51].
[31] Dangerous Sexual Offenders Act s 33(1)(a) read with s 7.
[32] The State of Western Australia v Latimer [2006] WASC 235 [49]; Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [79].
When considering whether a supervision order would adequately protect the community, it is necessary to take into account any conditions which can be placed on such an order to ensure that protection. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the protection of the community will always favour detention, as the most assured form of prevention.[33] However, because of the paramount consideration, if, having regard to the evidence concerning possible conditions which might be imposed in a supervision order under s 33(2), the court is left in doubt as to whether such an order would adequately protect the community, it must affirm the continuing detention order.[34]
[33] Director of Public Prosecutions (WA) v Williams [58].
[34] Director of Public Prosecutions (WA) v Williams [86]; Pindan [No 3] [29] - [32].
Moreover, upon a review of a continuing detention order, s 33(4) of the DSO Act provides that a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. Pursuant to s 33(5), the onus of proof that he will substantially comply is on the respondent. These provisions were introduced as a result of an amendment that commenced on 29 March 2018.[35]
[35] Dangerous Sexual Offenders Legislation Amendment Act 2017 (WA), s 23.
The term 'standard condition' in relation to a supervision order is defined in s 3 of the DSO Act as meaning a condition under s 18(1) that must be included in the order. Section 18(1) of the Act provides seven conditions that must be included in a supervision order. The conditions consist of requirements that the person report to and receive visits from a community corrections officer,[36] give notification of any change of his name, place of residence or place of employment,[37] be under the supervision of a CCO and comply with any reasonable direction of the CCO,[38] not leave or stay out of Western Australia without permission of a CCO,[39] not commit a sexual offence as defined in s 36A of the Evidence Act 1906 (WA) during the period of the order,[40]and be subject to electronic monitoring under s 19A of the DSO Act.[41]
[36] Dangerous Sexual Offenders Act s 18(1)(a) - (b).
[37] Dangerous Sexual Offenders Act s 18(1)(c).
[38] Dangerous Sexual Offenders Act s 18(1)(d).
[39] Dangerous Sexual Offenders Act s 18(1)(e).
[40] Dangerous Sexual Offenders Act s 18(1)(f).
[41] Dangerous Sexual Offenders Act s 18(1)(g).
Therefore, the effect of s 33(4) and s 33(5) is that the respondent must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order. I have expressed my views as to what is meant by 'substantially comply with' in Director of Public Prosecutions (WA) v Hart. In essence, I consider that the court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable the attainment of, the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.[42]
[42] Director of Public Prosecutions (WA) v Hart [52].
The requirement in s 33(4) is one consideration (albeit a determinative consideration if the court is not satisfied it has been met) in determining whether the offender's risk can be managed adequately in the community, so as to provide adequate protection of the community. There may be additional considerations, such as the availability of suitable accommodation, that will also affect the determination. Further, one of the standard conditions in s 18 is that the person will not commit a sexual offence as defined in s 36A of the Evidence Act 1906 (WA) during the period of the order. That definition substantially overlaps, but is wider than, the definition of 'serious sexual offence' under the DSO Act and includes all of the sexual offences in ch XXXI of the Criminal Code.[43] It would be expected that the court's capacity to be satisfied that the respondent will comply with that condition (ie that he will not commit a sexual offence during the period of the order) would ordinarily be affected by the court's consideration of whether the respondent is likely to comply with other conditions (both standard and non‑standard conditions) in the supervision order designed to manage and mitigate risk.
[43] 'Serious sexual offence' is defined in s 3 to mean, inter alia, a serious sexual offence as defined in s 106A of the Evidence Act 1906, which refers to offences listed in pt B of Sch 7 of that Act for which the maximum penalty is 7 years or more than 7 years. The offences listed include the whole of ch XXXI of the Criminal Code. The definition in s 36A of the Evidence Act 1906 includes all of the offences in ch XXXI of the Criminal Code without any limitation in respect of the maximum penalty.
I am inclined to agree with the views expressed by Corboy J in The State of Western Australia v A that, even before the amendment, the provisions of the DSO Act concerning the choice between a continuing detention order and a supervision order required consideration of the likelihood of an offender complying with the standard conditions (and any other conditions) to be imposed if a supervision order was made, and if there was real doubt about whether the offender would comply with a supervision order, the court could not be satisfied that the community could be adequately protected by such an order.[44]
[44] The State of Western Australia v A [2018] WASC 250 [58].
The level of risk posed by the respondent, and whether the community can be protected adequately against the risk under a supervision order, must be assessed by having regard not only to factors personal to the respondent, such as personality, attitudes, propensities and his capacity to control or manage his own behaviour, but also to external constraints and obligations that can be put in place under a supervision order to mitigate the risk. Gains made by the respondent in treatment and his behaviour while in custody will inform the assessment of the personal factors. The availability of new technology or resources in the community will be relevant to the assessment of external factors.
As Hall J remarked in Unwin [No 3], if the risk changes or resources improve to enable more efficacious conditions, then the need for detention may dissipate and continuing detention may become unjust.[45] The review process is intended to ensure that detention only continues where necessary.
[45] Unwin [No 3] [18].
Evidence in these proceedings
The evidence in this review consists of a Book of Materials tendered by the applicant and the oral evidence of Dr Peter Wynn Owen, a consultant forensic psychiatrist, Mr Nigel Cameron, a clinical and forensic psychologist who is contracted to the Department of Justice, and Mr Ian Farrell, an SCCO with the Community Offender Monitoring Unit in the Department of Corrective Services, which is part of the Department of Justice (the Department). Dr Wynn Owen and Mr Cameron interviewed and assessed the respondent for the purposes of this review.
The Book of Materials consists of:
(1)the Department's records concerning the respondent's conduct in prison during the period between the making of the continuing detention order and 26 February 2018;
(2)the respondent's criminal record;
(3)Medical Progress Notes concerning the respondent from 21 February 2017 to 8 February 2018;
(4)a report dated 22 January 2018 concerning the respondent's participation in the ISOTP (ISOTP Report);
(5)an Individual Intervention Assessment Report dated 28 February 2018, prepared by Ms Joanne Collyer, Senior Counselling Psychologist with the Department's Forensic Psychological Service, who provided individual counselling to the respondent after his participation in the ISOTP;
(6)Dr Wynn Owen's report dated 4 May 2018;
(7)Mr Cameron's report, titled 'Dangerous Sex Offender Management Plan', dated 18 April 2018; and
(8)Mr Farrell's report, titled 'Community Supervision Assessment', dated 31 May 2018.
Developments since the continuing detention order was made
In the period between 28 April 2017 and this review, the respondent had not been the subject of any prison charges. After numerous warnings he had lost privileges for failing to present at his cell door for muster, and there is some information in the records suggesting he would often complain to prison officers, but there is nothing remarkable about his conduct as an inmate during that period. The Individual Management Plan prepared at Bunbury Prison in November 2017 recorded that the respondent was 'always polite and respectful towards staff'.[46]
[46] Book of Materials (BOM) 10.
All of the respondent's tests for illicit drugs and alcohol during the review period returned negative results.
The respondent has a hearing impairment, but otherwise his medical history does not raise any matters of relevance for the purposes of the review.
The most significant developments have been that the respondent took part in an ISOTP and individual counselling.
Intensive sex offender treatment program
The Program Completion Report for the ISOTP was authored by two program facilitators and a clinical supervisor.
The respondent completed the ISOTP on 6 November 2017. He entered the program on 17 May 2017, nine days after it commenced. He missed the first three sessions, which appears to have affected his engagement with other group members, although the program facilitator reported that his relationship with the other members had improved towards the end of the program, and others would assist him with tasks. The respondent's hearing impairment, and problems with his hearing aid, led to the respondent being frustrated and annoyed when he could not hear some of the content properly.
However, overall, what emerges from the Program Completion Report is that the respondent engaged well with the activities, including those designed to address problematic beliefs and attitudes and to provide him with coping skills. The report summarised his participation as follows:[47]
In summary, he met all program objectives, and was observed to gain a greater understanding of the factors underlying his offending. Mr Decke's recognition around his maladaptive styles of attachment, attitudes and beliefs, poor emotional coping and self-regulation, sexual issues, poor communication and relationship skills can be considered as treatment gains. He demonstrated improved skills in the areas of emotional management, task focussed coping, relationship building and challenging unhelpful thinking/beliefs. He also came to recognise the importance of seeking professional supports to help him with problematic issues.
Towards the end of the program, Mr Decke developed a Self‑Management Plan to assist him to lead a balanced lifestyle by identifying risk factors, warning signs and potential supports. He also identified pro-social goals including re-establishing a connection with his adult children, finding accommodation with a large shed, making new friends, designing and making quality furniture, re-joining men's shed, enrolling in a TAFE course, joining a church group, becoming a volunteer, and re-acquainting himself with his sister in Bunbury and brother in Melbourne.
[47] BOM 37.
The lists of risk factors and warning signs identified by the respondent in his management plan, as recited in the report, were comprehensive and appropriate. The warning signs included:[48]
having nowhere to make things (creative space), not being involved in pro-social community activities, low self-esteem, negative thoughts, unsupervised contact with children, looking at pornography, keeping inappropriate material, and negative peers who utilise pornography and sex shops, not caring about consequences or respecting authority were warning signs.
[48] BOM 37.
The respondent indicated that he intended to manage his high risk situations by, among other things, 'using open and honest communication', 'avoiding child activity areas' and 'seeking assistance from authorities, including a CCO'.[49]
[49] BOM 37.
The report went on to say:[50]
As with all changes in behaviour, continued rehearsal of new skills is required in order for these skills to be generalised and for lasting change to be effected. Therefore, it is considered that Mr Decke may benefit from further support or counselling in the areas of cognitions/beliefs, selfregulation, relationships and sexual issues to help him maintain the skills he has learnt during treatment as well as to help him implement his goals and plans for the future. It is considered this could be achieved through the support of a CCO if released in the community.
[50] BOM 37.
In the assessment stage of the ISOTP, the respondent had identified incidents of sexual abuse when he was a child, and said they had led to a mistrust of males and had contributed to low esteem. Of particular note, he denied the first sexual offence of which he was convicted, which involved an indecent assault on a 9‑year‑old girl he was babysitting. He suggested his subsequent offences of wilful exposure were 'committed out of revenge towards authority for the first conviction'.[51] However, he also went on to say that he would expose himself to strangers, because their reaction gave him a sense of control and excitement, and that pattern of offending became addictive.[52]
[51] BOM 32.
[52] BOM 32.
Also of importance in the assessment stage, the respondent had expressed the belief that children were being sexualised at an early age, and sought to explain his offending against his granddaughter on the basis that she had initiated discussion of sexual matters and sexual contact.[53] Although the respondent recognised that he had 'an issue with poor boundaries and was confused around the concept of love and sex',[54] his explanation for the offence against his granddaughter indicates continuing distorted thinking in relation to children, and a failure to accept responsibility for his behaviour at the assessment stage.
[53] BOM 36.
[54] BOM 36.
While the conclusions in the Program Completion Report suggest the respondent made treatment gains which included a greater understanding of the factors underlying his offending, the assessments conducted for the review indicate that his distorted thinking persists, and lasting change has not been achieved.
Individual counselling
Ms Collyer has provided the individual psychological counselling that was recommended for the respondent. In her assessment report, she noted that the Program Completion Report indicated the respondent's participation in the ISOTP 'provided him with an experience that was challenging and provoking and enabled him to develop a greater level of insight into some of his personality characteristics.'[55]
[55] BOM 40.
The respondent's individual counselling commenced on 10 January 2018, and by the time of the Individual Intervention Assessment report, he had attended three sessions. By the time of the hearing, he had attended 11 or 12 sessions, roughly on a fortnightly basis.[56]
[56] ts 128 – evidence of Mr Cameron.
The original arrangement of conducting the interviews in the official visits area was found to be untenable, due to a lack of privacy and the respondent's hearing impairment. Subsequent appointments took place in an interview room and, by the time of the report, Ms Collyer's assessment was as follows:[57]
In general, Mr Decke presented as eager to attend appointments, completed tasks set without preamble and made a noted effort to engage. His reported tendency to speak in a tangential fashion was observed, though he appeared willing to be redirected after a time. Similarly, he was noted to deflect from some aspects of his offending and had a tendency to animatedly present his version of events when they differed from official accounts. Mr Decke was also easily preoccupied with the impact of his own victimisation and struggled at times to remain focused on his own offending behaviour.
[57] BOM 40.
Ms Collyer reported that the respondent presented as 'a lonely man willing to explore change' notwithstanding his 'limited trust in help seekers (or people in general)'.[58] She noted that the respondent's 'history of distrust and sense of abandonment by others' would 'likely have an ongoing impact and may inhibit his commitment' to achieving tangible goals in respect of changing his behaviour and 'internalising responsibility for his behaviour', she was of the opinion that the respondent was at a juncture where 'individual psychological counselling would afford an opportunity for him to address his treatment needs via rehearsal of material learned during the ISOTP and to create an opportunity for further exploration of the drivers to his offending'.[59]
[58] BOM 41.
[59] BOM 41.
For the purposes of his report and giving evidence at the hearing, Mr Cameron had read Ms Collyer's assessment report and had spoken with her. He said in evidence that Ms Collyer had a good therapeutic rapport with the respondent. He noted that, while at times the respondent demonstrated that he had retained material learned in the sessions, his ability to recall and articulate such material deteriorated during times of stress. The respondent's problematic views tended to re‑appear at those times. Mr Cameron said that Ms Collyer would continue her counselling sessions with the respondent. Importantly, the respondent had indicated that he was willing to continue with the psychological treatment.
The psychiatric and psychological assessments of the respondent for this review
For the present review, the psychiatric assessment was conducted by Dr Wynn Owen, and the psychological assessment was conducted by Mr Cameron. Both are very experienced in the assessment of risk of sexual offending for the purposes of proceedings under the DSO Act. Both of them had regard to the respondent's history, in particular his conduct while subject to the supervision order, as well their interviews with him and information obtained from the respondent's Community Corrections Officer and Ms Collyer.
Mr Cameron conducted two interviews with the respondent in prison, on 22 March 2018 for approximately 2 hours and 35 minutes and on 5 April 2018 for approximately 45 minutes.
Dr Wynn Owen also conducted two interviews with the respondent in prison, both in April 2018 for a total of 4.5 hours. His assessment included administering the Static‑99‑R (2016) actuarial instrument and the Risk for Sexual Violence Protocol (RSVP), both of which are risk assessment tools commonly used in the assessment of risk for the purposes of the DSO Act. Both were used by Dr Brett in his assessment in 2017.[60]
[60] Decke [No 2] [73] - [75].
As Dr Wynn Owen explained, the Static‑99‑R 'is intended to position offenders in terms of their relative degree of risk for sexual recidivism based on commonly available demographic and criminal history information that has been found to correlate with sexual recidivism in adult male sex offenders.'[61] The offender is scored on 10 relevant items. The respondent's score of 5, as determined by Dr Wynn Owen, puts him in the 'above average' level of risk for reoffending and suggests an approximately 15% likelihood that he would commit a sexual offence within 5 years of release.[62] Although the description given by Dr Wynn Owen differs from that given by Dr Brett in 2017 (namely that the respondent would score on the 'moderate to high risk category'),[63] I do not consider the difference to be of any consequence. The more informative assessment, especially when determining if there has been a change in the respondent's circumstances, is that made using the RSVP.
[61] BOM 51.
[62] ts 91.
[63] Decke [No 2] [73].
The RSVP involves the evaluation of 22 risk factors, grouped into a number of categories, which inform the development of risk management plans, the development of risk scenarios, the development of strategies to manage the risk of sexual violence and judgements regarding overall risks in the case.[64] It is sufficient for the purposes of this review to outline the evidence about the key factors that bear upon the question whether the respondent's circumstances have changed in a manner that would enable his risk of sexual reoffending to be adequately managed under a supervision order.
[64] BOM 52.
It is convenient to consider the evidence of both Dr Wynn Owen and Mr Cameron as it relates to those key factors, which were identified in my conclusions in Decke [No 2].
Sexual Deviance/Cognitive distortions
The respondent has been diagnosed previously as having exhibited two forms of paraphilia (ie sexual deviance), namely paedophilia and exhibitionism. Dr Wynn Owen confirmed that the respondent's history and collateral information in the case are consistent with those diagnoses.[65] For the purposes of the RSVP assessment, he found that the risk factor of sexual deviance continues to be present. In his report he said:
Mr Decke has unresolved issues related to his sexual deviance which is apparent in his contravention offending: photographing passing children; possession of images of children in a demeaning, offensive or sexual context; taking photographs up skirts on a train).
Mr Decke's comments dismissing and or minimising his breaches at interview strongly suggest the persistence of deviant sexual thinking.
[65] ts 91.
It can be seen that Dr Wynn Owen relied on both the respondent's conduct in contravening the supervision order and the respondent's minimisation of his breaches during the review process as matters that demonstrate the persistence of the respondent's sexual deviance and the associated distorted thinking he has previously exhibited, in particular in relation to the sexuality of children.
In his report, Dr Wynn Owen identified a number of examples of the respondent's denial and minimisation of his contraventions of the supervision order, including the following:[66]
Mr Decke now denies that he took the pictures up women's skirts found on his telephone. He also denies searching for and then keeping on his computer bestiality pornography which he says he found on another person's computer. He was unable to explain why, having given back the images, he did not delete them from his computer. He states that he did take the photographs of young girls he was found with but that there was no sexual interest, he was keeping them as one would keep pictures of one's own children in a wallet, because he was lonely and had no contact with his own family. He absolutely denies that any images of children in a demeaning or sexual context were found stating adamantly that 'they weren't children'.
[66] BOM 55.
Of further concern is the respondent's continued minimisation and denial of past sexual offending. The picture that emerges from the evidence of Dr Wynn Owen and Mr Cameron is that, when assessed by them, the respondent continued to have attitudes about his most serious sexual offending that he had expressed at the assessment stage of the ISOTP. The same can be said about his distorted thinking about the sexuality of children. Therefore, the indications are that the ISOTP has not resulted in a relevant change in his circumstances in that regard.
Extreme minimisation and denial of sexual violence is a risk factor considered in the RSVP assessment. It was a significant factor in my conclusions in Decke [No 2]. Both Dr Wynn Owen and Mr Cameron found it still to be present.[67]
[67] ts 155 (Mr Cameron).
When interviewed by Dr Wynn Owen, the respondent denied his offending against the child he was babysitting, and he minimised the offences against his granddaughter.[68] Indeed, in respect of the latter, the respondent minimised the offending 'to the extent that he agreed that the actual offence may not have occurred, although he acknowledged there may have been other offending'.[69]
[68] ts 105.
[69] ts 105.
In his report, Dr Wynn Owen provided the following details of the respondent's denial and minimisation of his sexual offending:[70]
Mr Decke continues to assert that there was no sexual contact between himself and the 9 year old female victim he was babysitting in 1982. Although he acknowledges the majority of non-contact offending between 1987 and April 1996 he denies the July 1996 offence, stating ... that he was urinating and there was no deliberate indecent exposure and he did not touch the victim. Mr Decke also continues to minimise the 2005 offence against his granddaughter, stating that she exposed herself to him and that while attempting to prevent her doing so he put out his hand and may have accidentally touched her.
[70] BOM 54.
Mr Cameron also canvassed the respondent's past offending with him. The respondent's accounts of the most serious offences did not indicate an 'acceptance of any personal responsibility for any wrongdoing.'[71]
[71] ts 134 - 135.
In relation to the offence against the 9‑year‑old girl, the respondent suggested that it was attributable to circumstances he had been placed in by others, in particular a 'broader agenda that the mother of the victim wanted to move from the suburb'.[72] Mr Cameron agreed that the respondent's attitude in relation to that offence amounted to an outright denial.[73] He considered that to be a significant shift in the respondent's attitude towards that offence, because in the past he had acknowledged the offence.[74]
[72] ts 125.
[73] ts 125.
[74] ts 125.
In relation to the respondent's account of the offences against his granddaughter, Mr Cameron regarded it as evincing a variety of rationalisations that broadly portrayed the child's behaviour as 'invitational'.[75] This attitude of 'significant victim blaming' was regarded by Mr Cameron as an attitude that one might expect from someone pre-treatment.[76] Indeed, as I have noted, it was the attitude the respondent had expressed in the assessment stage of the ISOTP.
Desire for intimacy
[75] ts 125.
[76] ts 125 - 126.
Dr Wynn Owen noted that in paedophile offenders there is less of a drop off in risk of sexual offending than is ordinarily associated with an ageing sex offender. The difference is related to the fact that the motivation for a paedophile offender may be the need for intimacy rather than sexual needs.[77] In the respondent's case, in addition to reflecting his underlying sexual deviancy, his offending has reflected the fact that he could not find age‑appropriate people to meet his need for intimacy, in the form of affection and contact; it has not resulted exclusively from sexual arousal.[78]
Distorted thinking about the sexuality of children
[77] ts 107.
[78] ts 120.
Of course, the pursuit of that intimacy by sexual offending occurs in the context of distorted thinking about the sexuality of children. It would appear the respondent has not made any meaningful progress in that regard.
Dr Wynn Owen said in evidence:[79]
[The respondent] was still unclear about whether it was appropriate or not to have the discussions with his granddaughter that he had about sexual matters. He thought that it was quite appropriate for him to do that and it was a demonstration of his love for her, even though she was a five-year-old girl, which I think was an ongoing demonstration that he continues to have that confusion.
[79] ts 108.
The confusion to which Dr Wynn Owen referred is the respondent's difficulty in differentiating between love and sex, particularly in the way he relates to children. That was especially evident in the respondent's distorted semantic analysis of the word 'paedophilia': see [87] below.
Mr Cameron also concluded that the respondent was very confused about the relationship between love, intimacy and sexual desire.[80]
[80] ts 156.
In Decke [No 2], in the passage quoted at [25] above, I noted that, in a context in which the respondent has difficulty differentiating between love and sex, the risk that he would act on his deviant sexual interest in children is exacerbated, even if his motivation for coming into contact with children is to fulfil a need for affection.
However, the problem is broader than a difficulty differentiating between love and sex. The respondent told Dr Wynn Owen that his conversations about sex with his grandchildren who were 4 and 5 years old were an appropriate intervention in 2005 'because the parents weren't doing it'.[81] When asked why society placed age limits on sexual contact, the respondent answered: 'Well, they're going to experiment anyway'.[82] The respondent expressed the opinion that girls are sexually aware at the age of 5 years and sexually active from the age of 9.[83]
[81] BOM 56.
[82] BOM 56.
[83] BOM 56.
These attitudes and beliefs also inform Dr Wynn Owen's conclusion that the respondent has the risk factor under the RSVP of attitudes that support or condone sexual violence.[84] Those attitudes have been noted in previous assessments and were summarised by Dr Brett in 2009.[85] They detract from any suggestion that the respondent has made any meaningful gains in relation to victim empathy or in understanding the consequences of his offending. It is a risk factor that is affected by problems with self-awareness, which is another relevant risk factor under the RSVP.
Problems with Self-Awareness
[84] BOM 56.
[85] Div 2 BOM 420.
Dr Wynn Owen noted that the respondent has a significant and well documented history of problems with self-awareness.[86] This is still apparent. The respondent's answers to Dr Wynn Owen when asked whether he had sexual feelings towards children were marked by contradictions and apparent confusion. As Dr Wynn Owen reported:[87]
At interview he denies any sexual feelings for or arousal to children. He, however, admits to the victim of his 1982 offence fellating him (of her own volition) prior to the offence for which he was convicted (and now denies). He also reports having an erection when awakening in bed on 2 occasions in 2005 to find both of his granddaughters playing with his penis. He obliquely refers at interview, in a contradictory manner, to his sexual thoughts for example “I don't really think I've had sexual interest in children”, 'I'd like to live free of bad thoughts', 'I don't have sexual thoughts, I picked on kids because they were vulnerable' and 'If someone asked me to babysit then I'd probably reoffend knowing my past'. When challenged to explain these statement Mr Decke would not clarify but go (sic) back to his past, talk about how his parent's failed him and how, in his opinion, his offending is revenge for this. His long verbal digressions often accompanied by overt but very short‑lived emotion exclusively about his own circumstances and consequences. Further when asked about his understanding of the diagnosis paedophilia he stated initially that no one had given him that diagnosis before and then explained that if 'paedo' means child and 'philia' means love then what is wrong with loving children, that is what parents do. He then said 'do you love your children? Then you're a paedophile'. Following clarification of this Mr Decke stated that he had no sexual interest in children and had never had such an interest.
[86] BOM 57.
[87] BOM 57.
Dr Wynn Owen noted in evidence that the respondent 'does not see himself at all as a man with a sexual deviancy',[88] although he 'does understand that it's potentially a risk for him to be in a room with a child'.[89] The respondent's contradictory statements were more particularly described as follows:[90]
[He] will say that he has no sexual deviancy, but he will also say, in the same breath, 'If I'm with a child in a room, I'm likely to offend because of my history.'
[88] ts 103.
[89] ts 103.
[90] ts 103.
Dr Wynn Owen identified the difficulty that the respondent's lack of self‑awareness poses from a treatment perspective, as follows:[91]
It ... suggests from a treatment perspective that there will be an unwillingness to address that aspect of his offending because he doesn't recognise it and as such then how would one develop risk management strategies to tackle that situation if one doesn't really recognise it as part of one's pattern of offending.
[91] ts 116.
Dr Wynn Owen acknowledged that it was 'certainly possible' to have a risk minimising strategy for someone, even if they do not ever take responsibility for what they have done. However, in his view:[92]
[I]t will never be as effective, because if you don't necessarily believe in what you're doing, you're less likely to do it all the time. So you can have it consciously in place, but your lack (sic) out of complacency or ignoring that risk management strategy is higher if you don't have a sense that it really should apply to yourself.
Sexual drive
[92] ts 116.
Part of the context in which the significance of the respondent's sexual deviance and distorted thinking was considered in Decke [No 2], in assessing his risk of committing a serious sexual offence, was the fact that he continued to have a sexual drive. The determination of that issue in these proceedings has been somewhat elusive.
Dr Wynn Owen noted that it is difficult to ascertain accurate information about the respondent's sex drive.[93] The respondent denied having a sex drive.[94] Dr Wynn Owen noted that it was possible that the respondent did indeed have a decreased sexual drive as a result of his age, although he said:[95]
What one can consider though is what [the respondent] has said about his sex drive and his thinking during the period that he was supervised and then the behaviours, so his commentary about his sex drive and his behaviours are at odds ... he may be misleading us and himself.
[93] ts 106
[94] ts 106.
[95] ts 107.
Mr Cameron also found the respondent to be elusive about his sexual drive when questioned.[96] The respondent suggested he did not approve of masturbation, and that his attitude was due to his past experience of sexual abuse.[97] Nevertheless, he admitted engaging in some masturbation, although Mr Cameron considered the rate described by the respondent to be 'extremely low'. The respondent told Mr Cameron that, when he looked at sexual materials, he was looking at them more for their beauty than for the sexual arousal they might evoke.[98] That theme is similar to the one that imbued some of the respondent's explanations for his possession of child exploitation material at the time he was under supervision. In my view, having regard to the respondent's history and his contraventions of the supervision order, little weight can be given to it.
[96] ts 124.
[97] ts 123.
[98] ts 124.
When Mr Cameron questioned the respondent about his current sexual attractions, the respondent indicated that he was now only attracted to adult women, and that he did not have a sexual preference for children.[99] Having regard to the assessments that have been made by Dr Wynn Owen and Mr Cameron about the respondent's lack of honesty and reliability on a number of issues, I do not consider that I can rely on the respondent's claims about his sexual interests. As I have already outlined, he continues to be diagnosed as having a sexual deviancy that is relevant to this issue, namely paedophilia.
[99] ts 124 - 125, 135 - 136.
When asked to comment generally about the respondent's sexuality and sex drive, Mr Cameron highlighted three factors that aptly summarise the overall effect of the evidence on this issue. Firstly, the respondent is confused as to his sexuality.[100] Secondly, he struggles to separate intimacy needs from sexual needs.[101] Thirdly, when he is being interviewed, whilst he is aware that he is being tested and gives the answers he thinks are right, he is not quite sure what the right answer is. This results in a situation in which it is very difficult to say what the respondent's actual beliefs are in relation to his offending.[102]
[100] ts 135.
[101] ts 135.
[102] ts 135.
Given the respondent's advancing age, the period he has spent in prison and the amount of time that has elapsed since the respondent's last serious sexual offence, Mr Cameron was not able to say with any confidence whether the respondent continues to have a sexual drive.[103]
[103] ts 156.
The issue of age was also considered by Dr Wynn Owen: see [79] above. When this matter was heard, the respondent was 67 years old. Dr Wynn Owen noted that, if one considers sex offenders as a general group, the likelihood of offending decreases quite rapidly after the age of 60.[104] He said this was a result of a number of factors, including a psychological change (a 'blunting' of some impulses and urges), and being physically less able to commit particularly violent sexual crimes.[105] However, apart from the problem with his hearing, the respondent was in good physical health for his age.[106] Further, in Dr Wynn Owen's opinion, having regard to the matters outlined at [79] above, the respondent's age would not affect his ability to offend against a young child in the way he has offended in the past.[107]
Whether the respondent is prepared to be open and honest
[104] ts 94.
[105] ts 94 - 95.
[106] ts 95.
[107] ts 95.
In my reasons in Decke [No 2], I referred to the need for the respondent to be open and honest, if the court is to have confidence that he will comply with the conditions of a supervision order that he has previously flouted repeatedly.[108]
[108] See [27] above.
When asked to comment on the respondent's honesty, Dr Wynn Owen pointed to the fact that there were recent denials by the respondent of things that later were found to have been true.[109] One example was that he denied that he was the owner of certain pictures, which were known to be his.[110]
[109] ts 104.
[110] ts 104.
The question of honesty is linked, in some respects, to self-awareness and a proper understanding by him of his behaviour. Dr Wynn Owen pointed to the respondent's justification for his various past breaches:[111]
He gave me an explanation, justification or excuse for every breach he had. They were either minimised or denied or attributed to the actions of a Community Corrections officer or another member of the team. That just seemed to show a complete lack of understanding.
[111] ts 99.
Dr Wynn Owen noted that, in this regard, the respondent's attitude had not changed since the contravention hearing, and he was quite angry and frustrated about the fact that he had been breached.[112]
[112] ts 106.
The significance of this risk factor was explained by Dr Wynn Owen as follows in his report:[113]
While minimisation and denial are not associated with an increased risk of future sexual offending they are associated with poor treatment engagement/treatment failure and have been associated with poor compliance with supervision and monitoring conditions (in part through the false belief that the conditions should not apply as the offences did not occur).
[113] BOM 56.
Mr Cameron regarded the incongruous and inconsistent information the respondent presented, in some cases, as borne out of confusion and, in others, as evidence of a lack of honesty.[114] Mr Cameron further went on to say that the respondent would likely 'continue to present information in whatever setting he felt was best to his advantage'.[115] In a supervision setting this would mean he would be cautious when conveying information that he perceived would portray him negatively or as non‑compliant.[116]
The respondent's understanding and acceptance of the need for conditions
[114] ts 152.
[115] ts 153.
[116] ts 153.
During the ISOTP, the respondent indicated that he would comply with supervision conditions. He said the same thing to Dr Wynn Owen, Mr Cameron and Mr Farrell in their interviews with him. On 12 April 2018 (after his interviews with Mr Cameron, and around the time of his interviews with Dr Wynn Owen) the respondent told Mr Farrell that 'if released to an order it would be different this time, as he is more aware of the need to comply with his supervision conditions, is motivated to seek help, understands he needs to engage in counselling and believes he can survive without family support'.[117]
[117] BOM 84.
Of course, the respondent had expressed his commitment to complying with such conditions before he was released on the supervision order, yet he contravened the order. It is necessary to look beyond his bare assertions to determine whether there has been any positive change in his understanding and acceptance of the need for conditions, so as to enable the court to be satisfied that he would substantially comply with the standard conditions of a supervision order.
Dr Wynn Owen said in his report that, having said he would abide by his supervision conditions, the respondent then stated:[118]
[B]ut don't keep telling me what I can't do, hammering those conditions into my head all the time.
[118] BOM 63.
In evidence, Dr Wynn Owen said the respondent felt the conditions of the supervision order had been unfair, and said: 'Stop telling me what I can't do; tell me what I can do'.[119]
[119] ts 99.
When Mr Cameron asked the respondent about his attitude towards the DSO Act and the supervision order, the respondent similarly expressed the opinion that the order was unfair, overly constrictive and led to hardship.[120] There appears to have been no change in the respondent's attitude in that regard, despite the indications he gave during the ISOTP that he understood the need to comply with conditions and that he would seek assistance from his CCO.
[120] ts 137.
Mr Cameron questioned the respondent about his past relationship with his CCO. The respondent complained that the directions they gave him complicated his life and set him up for failure.[121] The examples given were, firstly, that appointments were scheduled that unnecessarily brought the respondent into contact with children in the public, and secondly, that he lost his job because it was located next to a dance studio which meant he was unable to attend his workplace in a timely fashion, because of the restrictions on when he could be in that area.[122] As Mr Cameron put it:[123]
He blamed the CCO and the system for creating a situation where he couldn't persist with what he felt was a fair job.
[121] ts 126.
[122] ts 126 - 127.
[123] ts 127.
Although the examples given by the respondent were limited, the respondent's continuing resentment in relation to at least some aspects of his relationship with the CCO, coupled with a continuing level of distrust towards persons in authority, does not give one confidence that he would cope with supervision and comply substantially with the conditions of a supervision order, which would be essentially in the same terms as the conditions of the previous supervision order.[124]
Other factors relevant to risk
[124] See [144] below.
There are five other factors found to be present in the RSVP assessment which require elaboration, having regard to the issues in this case. They are:[125]
(1)the respondent's problems with stress and coping, which is a consequence of the respondent's problems with self‑awareness;
(2)the respondent's history of being sexually abused as a child;
(3)the respondent's problems with intimate relationships;
(4)the respondent's problems with non-intimate relationships; and
(5)the lack of success of previous treatment attempts (including the ISOTP).
Problems with stress and coping
[125] ts 93.
The respondent's past sexual offending and his contraventions of the supervision order have been attributed, at least in part, to an escalation of circumstances that begin with an inability to deal adequately with stressful events in his life. His treatment has included aspects intended to enable him to identify stressors and better equip him to deal with stress. However, stress and difficulties with coping continue to be relevant risk factors.
In respect of the respondent's difficulties with stress in more recent years, Dr Wynn Owen said in his report:[126]
While in the community on a supervision order Mr Decke report[ed] difficulties with loneliness and isolation and in particular not coping with his family refusing to maintain contact with him. Most recently he reports that he has been feeling 'powerless … I'm in a helpless state'. His ongoing difficulties with coping are exemplified by his feelings of loneliness and isolation in prison leading to thoughts of suicide.
[126] BOM 58.
Dr Wynn Owen explained that, although stress is not a risk factor associated with increased risk of future sexual offending, there is some evidence to suggest that stressful events precipitate deviant sexual fantasies that may, in turn, lead to the respondent acting out those fantasies.[127]
[127] BOM 58.
In Dr Wynn Owen's opinion, the respondent's problems with self-awareness and stress and coping are the risk factors which really need to be addressed in any further treatment.[128] He noted that it would be very difficult to remove all triggers of stress from the respondent's day to day life if he were subject to a supervision order, given that he finds the supervisory regime itself stressful.[129] He suggested as a possible protective measure an interventionist approach by a counsellor or CCO who knows the respondent well enough to be able to identify a change in his demeanour when the respondent himself could not. However, the implementation of such an approach would be difficult, given that previously the respondent has not had a relationship with a counsellor or CCO in which he has felt comfortable sharing his feelings, including his feelings of loneliness.[130]
History of child abuse
[128] ts 94.
[129] ts 117.
[130] ts 117 - 118.
The significance of sexual abuse as a child in assessing an offender's risk of committing a serious sexual offence again was explained by Dr Wynn Owen in his report as follows:[131]
Empirical evidence suggests that child abuse is a general risk factor for criminality, non-sexual violence, and sexual violence. Studies (eg by Hanson and Harris, 2000) have found that recidivists were more likely than non-recidivists to have been sexually abused or neglected by carers.
[131] BOM 59.
The respondent has previously identified sexual abuse as a child as a factor that has played on his mind and has contributed to low esteem,[132] which may readily be regarded as a factor that in turn contributes to his problems with intimate relationships and his difficulty coping with stress. It does not appear that he has addressed that aspect of his history in a meaningful way that might lead to a reduction of risk.
Problems with intimate relationships
[132] See [55] above and BOM 36 (ISOTP Completion Report).
Dr Wynn Owen gave evidence that the risk factor of 'problems with intimate relationships' is present in the respondent's case. He summarised the respondent's historical and current circumstances relevant to this issue as follows in his report:[133]
Mr Decke was married for many years however he reports a deterioration in communication and sexual contact over time which he felt unable to address with his wife. He has had no other adult intimate relationships. Problems with intimate relationships have been found to be of significance in sub-groups of offenders, indicating an increased risk of future sexual violence in child sex offenders.
Problems with non-intimate relationships
[133] BOM 60.
Dr Wynn Owen noted in his report that the risk factor of 'problems with non‑intimate relationships' is also present in the respondent's case. The respondent told Dr Wynn Owen that he finds it difficult to communicate with adults (in particular with males) other than superficially, and he has significant problems trusting people.[134] He did not identify any significant (ie close and/or long-lasting) friendships during his lifetime, other than with his family and his wife. Dr Wynn Owen noted that the respondent's current problems in prison reflect the ongoing nature of this risk.[135] The respondent has consistently reported feelings of isolation and loneliness in prison.[136]
[134] BOM 60 - 61.
[135] BOM 61.
[136] BOM 58 - referred to in the context of the risk factor of 'problems with stress and coping'.
Dr Wynn Owen explained that the lack of positive, prosocial relationships with family and friends is associated with the risk of sexual violence.[137] He said there is also a putative relationship between negative peer associates and sexual recidivism, which, in his opinion, 'may be related to [the respondent's] blaming a "friend" for his having sexual and child images on his computer while most recently in the community'.[138]
[137] BOM 61.
[138] BOM 61.
In Dr Wynn Owen's opinion, given that one of the respondent's risk factors is loneliness, it would be crucial for him to keep up social contact if he were to be on a supervision order.[139] The difficulty is that, in the absence of ongoing links with friends or family, his supports would all be professional.[140]
[139] ts 114.
[140] ts 114.
Dr Wynn Owen considered that the respondent's problems with both intimate and non‑intimate relationships could be addressed, potentially, in treatment.[141]
The lack of success of previous treatment
[141] ts 94.
As I noted earlier, the respondent received positive feedback in the ISOTP Completion Report.[142] However, both Dr Wynn Owen and Mr Cameron concluded that, when they interviewed him, the respondent did not manifest the progress that had been identified in the report.
[142] ts 99, 112.
Dr Wynn Owen was of the view that the respondent was not able to sustain or retain any knowledge that he gained from the ISOTP.[143] He expressed his opinion by reference to the treatment needs that had been identified in previous proceedings, stating in his report:[144]
At the 2009 Division 2 hearing and at the 2017 contravention hearing Mr Decke was found to have outstanding/unmet treatment needs by assessing experts in the areas of sexual deviance, distorted cognitions, self-awareness and self-management and social and emotional functioning. On the basis of my assessment and notwithstanding Mr Decke's completion of an Intensive Sexual Offender Treatment Program in Bunbury Prison between May and November 2017 I find that these treatment needs remain unmet.
[143] ts 100.
[144] BOM 62.
Mr Cameron considered that the positive conclusions of the ISOTP report perhaps overstated the respondent's progress.[145] The picture he had of the respondent from his interviews was very different to the one painted by the report.[146] Further he described the respondent as presenting 'more like someone who is yet to commence treatment'.[147]
[145] ts 127 - 128.
[146] ts 129.
[147] ts 129.
In Mr Cameron's view, the respondent was not able to articulate his high‑risk situations or management strategies in a manner that one would expect to see after treatment.[148] Specifically, when the respondent was given the opportunity to outline his offence cycle he was unable to do so.[149] Mr Cameron regarded this as significant, because the ability to do so helps an offender to understand the pathway or stumbling blocks that may precede actual offending, and enables him to tackle issues early in the escalating cycle.[150]
[148] ts 129 - 130.
[149] ts 130.
[150] ts 130.
Mr Cameron considered that the management plan written by the respondent during the ISOTP,[151] whilst containing 'good things', was lacking specifics and the kind of clarity and succinctness that allow it to be carried around and employed by the respondent in the community.[152] The suggestion that the plan was lacking specifics seems incongruous with the detailed nature of the lists to which I referred at [52] above. In his report, Mr Cameron said the plan 'focused on broad lifestyle factors, and did not name how he might manage sexuality in a healthy manner, nor how he would navigate high risk situations in concrete terms'.[153] It is in that sense that I understood Mr Cameron's reference to a lack of clarity and succinctness. In any event, what matters for the purposes of the review is whether the respondent has continued to demonstrate gains apparently made in the ISOTP.
[151] See [52] – [53] above.
[152] ts 131.
[153] BOM 77.
Mr Cameron considered the respondent's responses when questioned about high risk situations to be unsophisticated and rudimentary.[154] Having regard to the examples given by Mr Cameron in evidence, it is clear the respondent's answers (which at one point were described by Mr Cameron as being 'pretty much a blank page', when the respondent was asked to outline an offence cycle in writing),[155] did not reflect the detailed lists in the management plan, even after the respondent had considerable time to think. When Mr Cameron posed a hypothetical risk scenario to the respondent, the response he gave was much less developed than the types of answers that would exemplify a good understanding of how to avoid and deal with risk scenarios.[156]
[154] ts 131 - 132.
[155] ts 130.
[156] ts 133 - 134.
I note that in the Community Supervision Assessment report, Mr Farrell suggested that there may have been some progress after the respondent was interviewed by Dr Wynn Owen and Mr Cameron:[157]
During interviews for his upcoming review, Mr Decke has struggled to articulate an understanding of concepts covered in the ISOTP and was unable to document his offence cycle, however his psychologist Ms Collyer indicated that in recent sessions he has provided more information in this regard. It is recommended he continue this counselling to address his outstanding treatment needs.
[157] BOM 87.
However, there was no evidence of the further information the respondent had provided. The preponderance of evidence in the review is to the effect that the respondent has not demonstrated a capacity to outline his offence cycle and identify practical measures he would take to deal with high risk situations. The essence of the respondent's current status was summarised by Mr Cameron metaphorically, but aptly, when he said: 'at this point I cannot see evidence that the respondent can talk the talk, let alone walk the walk.'[158]
[158] ts 144.
Mr Cameron considered that the discrepancy between the positive conclusions in the ISOTP Completion Report and his own findings was likely attributable to one of several situations:[159]
(1) the respondent may have been operating from a very low base level, such that, even after therapeutic gains, there were still significant issues;[160]
(2)the information that the respondent received during the ISOTP course may simply not have been retained. That, in itself, may be the result of poor conceptual 'scaffolding', a loose grasp of the materials, difficulty engaging with sophisticated concepts, being unable to retain the visuals associated with the program or cognitive decline; or
(3)the respondent's personality may be 'forever set', such that treatment gains may not persist.
[159] ts 136.
[160] A hypothesis Ms Collyer appears to think possible: ts 157.
Dr Wynn Owen, on the other hand, suggested that the respondent's inability to sustain or retain knowledge from the ISOTP may be indicative of a learning difficulty.[161] Mr Cameron acknowledged that there may be a need for cognitive testing.[162]
Potential learning difficulty
[161] ts 100.
[162] See [150] and [152] below.
While Dr Wynn Owen did not find that the respondent had an intellectual disability or cognitive deficit, he was of the view that the respondent may have an underlying learning difficulty,[163] which may explain his inability to gain from treatment to date.[164] He believes there is a case to be made for a formal psychological assessment to see whether a learning difficulty could be preventing the respondent from fully gaining from therapeutic intervention.[165]
[163] ts 94.
[164] ts 98.
[165] ts 109.
Dr Wynn Owen noted that, if the respondent were found to have a specific difficulty, this could inform the way in which future treatment could be delivered, for example in terms of the appropriateness of an ISOTP, or the complexity of language used in treatment.[166] He also noted that if the respondent has a difficulty which means that he is likely to never come to terms with his deviancy, there is no point 'flogging a dead horse', in terms of trying to give him therapeutic treatment.[167]
[166] ts 109.
[167] ts 109.
It is to be hoped, of course, that with appropriate intervention (if there is a learning difficulty), and with further individual counselling, the respondent will be able to absorb and consolidate the detailed information concerning his risk factors, warning signs and management strategies, and that he will be able to demonstrate in future that he has the capacity to apply such strategies in a meaningful way.
Risk of re-offending
Dr Wynn Owen's opinion at the hearing was that the respondent's risk of sexual offending has not changed since his detention after the contravention proceedings. That is, he believed that the respondent is just as likely to reoffend.[168] Dr Wynn Owen identified the most likely offence scenario to be one of wilful exposure committed against a female stranger who has some degree of vulnerability, as that was the respondent's most common form of offending in the past, born out of stress and a motivation to feel more powerful.[169] He said such offending (which would constitute offences of doing an obscene or indecent act)[170] may well escalate to physical contact with a victim if the respondent became angry or frustrated.[171] However, there is also a likelihood, that is greater than within the general population, that the respondent would commit a sexual offence against a child who is in his care or who is known to him and with whom he has built some degree of trust through grooming, which was the scenario in the past with each of the 9‑year‑old neighbour and the respondent's granddaughter.[172]
[168] ts 95.
[169] ts 96.
[170] See Criminal Code s 202 – 204.
[171] ts 96.
[172] ts 96.
In Dr Wynn Owen's opinion, the respondent 'continues to present a risk of serious sexually offending if not detained or released under some degree of supervision'.[173] He referred to the fact that, while the respondent was under supervision in the community, he was in possession of child exploitation material and had taken pictures up the skirts of women. Dr Wynn Owen considered those circumstances to be evidence of ongoing sexual thinking and sexual behaviour. He noted that:
For that to occur under such a tight supervision order in the circumstances that [the respondent] was in, already under the Dangerous Sex Offender Act, suggests that he finds it very, very difficult to contain the urges which lead him to undertake those behaviours.
[173] ts 97.
Dr Wynn Owen also noted the respondent's previous 'trajectory of escalation'.[174] The fact that the breaches of the supervision order occurred in the latter part of the respondent's period of supervision in the community suggests, in Dr Wynn Owen's opinion, that there was a 'pattern with increased sexual thinking'.[175]
Ability to manage the respondent's risk adequately under a supervision order
[174] ts 106.
[175] ts 106.
In terms of manageability, Dr Wynn Owen identified that the respondent has problems with supervision, evident from his period of community supervision under the DSO Act.[176] As I outlined earlier, he noted that the respondent does not want to have restrictions on what he is able to do, and believes that the conditions that have been applied to him in the past have been 'onerous and unfair'.[177] Dr Wynn Owen's view is that this is because the respondent 'doesn't see himself as a risk of sexual offending, certainly doesn't see himself as a risk of contact offending against children'.[178]
[176] ts 94.
[177] ts 104.
[178] ts 105.
I have already referred to Dr Wynn Owen's opinion that the most likely form of sexual offending in which the respondent would engage if released into the community is wilful exposure, which he referred to as 'exposure offending'. He explained that such offending is likely to occur because the respondent would be released into the community in circumstances of isolation and considerable stress, and 'previously he has gone to that type of offending, particularly, if he feels helpless and powerless in the face of what he regards as onerous and perhaps unfair supervision conditions.'[179] As was noted in previous decisions, the 'exposure offending' does not constitute serious sexual offending for the purposes of the DSO Act. Nor does it come within the provisions of s 18(1)(f) of the DSO Act, by which it is a standard condition of a supervision order that the person not commit a sexual offence as defined in the Evidence Act 1906 s 36A. It is nevertheless a factor to be taken into account in assessing the manageability of the respondent under a supervision order.
[179] ts 98.
The respondent's most serious offending, and that which constituted serious sexual offences, was the physical offending against children with whom he had regular contact. In that regard, Dr Wynn Owen is of the opinion that:[180]
This offending will build over time and rely on contact. If he can be in a situation where there is no possibility of [un]supervised[181] contact with young children, it seems unlikely that he would commit a serious sexual offence of that sort.
[180] ts 98.
[181] Although the transcript reads 'supervised', it is clear from what Dr Wynn Owen said later that he intended to say 'unsupervised', irrespective of whether or not this is a transcription error. See ts 115.
Dr Wynn Owen was referring to a prohibition on unsupervised contact with young children by the conditions of a supervision order and the implementation of a management strategy that prevented unsupervised contact with young children.[182] Such a strategy would 'limit his risk of contact offending'.[183] The difficulty, of course, is ensuring compliance with relevant conditions and a management strategy. In the contravention proceedings, the respondent's breaches were regarded as evincing an increasing risk that the respondent would commit a serious sexual offence, and Dr Brett was of the opinion that, if the respondent had not been taken into custody, he may have committed a serious sexual offence.[184] Similarly, in this review Mr Cameron was of the opinion that the possession of child exploitation material would suggest close proximity to further offending.[185]
[182] ts 113.
[183] ts 113.
[184] See [25] above.
[185] ts 154.
Dr Wynn Owen acknowledged that it is 'extremely difficult to live in the community and avoid places where children might gather'.[186] Access to children may only be a precursor to serious sexual offending, which would 'build over time', as Dr Wynn Owen described it, but it provides opportunity for the offence trajectory to commence. In my opinion, the difficulty recognised by Dr Wynn Owen tends to emphasise the need for the respondent to demonstrate insight into his offending and a proper understanding of the purpose of conditions and management strategies, together with a commitment to adhering to them, before the court could conclude that his risk could be adequately managed in the community under a supervision order.
[186] ts 115.
In the event that the court were to conclude that the risk could be managed under a supervision order, Mr Cameron concluded that he had seen insufficient evidence to recommend any relaxation of the conditions of the previous supervision order.[187] I note that the conditions that were proposed by the applicant, in the event that the court did not affirm the continuing detention order, were more extensive and more restrictive than the conditions of the supervision order the respondent contravened. It would appear that the conditions were formulated by the Community Offender Monitoring Unit of the Department of Justice after consultation with Dr Wynn Owen and Mr Cameron.[188]
[187] ts 145.
[188] Referred to in the Community Supervision Assessment Report at BOM 86 – 87.
In particular, the new proposed conditions included conditions that were more restrictive in terms of the contact the respondent could have with children, including restrictions on his ability to attend any school, childcare centre or other facility known or perceived to be frequently used by children.[189] They also included conditions that would require him to ensure that any computer or device used by him, which is connected to the internet, is not used by any other person, and preventing him from deleting any content recorded by him and any search histories or logs. Such conditions could have been the subject of lawful directions previously, but would be intended to make the respondent's obligations clear in the order.
(viii) Recommendations
[189] BOM 91.
If the respondent were to be released on a supervision order (which could not take effect for 21 days in any event),[190] Mr Cameron would recommend a short intensive program to assist with the transition.[191]
[190] Dangerous Sexual Offenders Act s 33(1)(b)(ii).
[191] ts 146.
If the respondent were to remain in detention, Mr Cameron was somewhat pessimistic about the respondent's future progress, describing him as a 'far from ideal treatment candidate' who over the years had received a lot of varied treatment from very experienced people, yet still presented as pre‑treatment in many respects.[192] Nevertheless, Mr Cameron provided his opinion about the appropriate course of future treatment for the respondent.
[192] ts 148, 125 - 126.
He suggested that such treatment might undergo a shift, whereby information would be simplified and reduced to 'chunks' that could be taught incrementally in steps moving increasingly closer to real world situations.[193] In essence, future treatment should move towards concrete situations and away from the abstract discussion of strategies.[194] Mr Cameron was of the opinion that this type of 'rehearsal of concrete risk scenario responses' would be best done within the community, if such rehearsing did not put the respondent in breach of a supervision order.[195] The reality, however, is that such an approach would put the respondent in circumstances that contravened some of the necessary conditions of such an order. Mr Cameron acknowledged that such rehearsing of scenarios could be done in the prison context, but said it may lack some of the fluidity of similar treatment in the community.[196]
[193] ts 139.
[194] ts 139.
[195] ts 140 - 141.
[196] ts 141.
Of course, if such treatment is deemed suitable and can be accommodated in the prison environment, every effort should be made to give the respondent the benefit of that treatment. The ultimate goal of such a change of the treatment strategy would be to prepare the respondent for a supervision order.[197] Mr Cameron was of the opinion that a series of at least 12 counselling sessions of that type would be appropriate.[198] Mr Cameron also suggested that the respondent may benefit from the introduction a mentor into therapy.[199]
[197] ts 146.
[198] ts 161 - 162.
[199] ts 162.
The shift in treatment was summarised as a move away from 'unpacking, exploring, engaging, debating' and a move towards thinking about how the respondent can live well in the community with conditions.[200] It would be designed to enable the respondent to understand how he needs to behave in the community, even if he does not agree with the need.[201]
[200] ts 142.
[201] ts 144.
As I noted earlier, Mr Cameron did not express a concluded view about why the respondent has not made progress. He did not think, necessarily, that there was a lack of motivation to give the right answers, because he was not able to determine if the respondent knew what the right answers were.[202] That raises the question of cognitive functioning, which I discussed earlier under the heading 'Potential learning difficulty'.
[202] ts 144.
Mr Cameron suggested that treatment providers might undertake cognitive testing of the respondent, so as to:
(a) more specifically ascertain the respondent's level of intellectual functioning;
(b) appraise him for any specific strengths or weaknesses, so as to adjust treatment accordingly;
(c) explore his level of cognitive flexibility; and
(d)provide a baseline in the case that there is some cognitive, decline, given his advancing years'.[203]
[203] BOM 79.
Those suggestions were identified as being helpful regardless of whether the 'shift' in treatment takes place, and should be considered as part of any future ongoing treatment of the respondent.[204] Mr Cameron was also of the opinion that testing administered by a neuropsychologist would be beneficial in the assessment of those areas and the development of treatment strategies in the future.[205] It might help explain the inconsistent levels of ability the respondent seemed to display in differing circumstances.[206]
[204] ts 145.
[205] ts 157 - 159.
[206] ts 161.
Finally, I note that Mr Cameron considered further group programs to be ill‑advised, primarily because they had not proven useful for the respondent in the past, and his current hearing impairment and concentration made it quite difficult for the respondent to engage with group programs.[207] Mr Cameron also considered that there was a possibility in such programs for the respondent to be caught in a 'ruminative loop' that prevents him from focussing on the core gains he needs to make.[208] However, it appears Mr Cameron did not ask the respondent about his attitude to group therapy.[209] It seems to me that his attitude should be taken into account if he found benefits in group therapy, notwithstanding the problems with retention that have been identified by both Mr Cameron and Dr Wynn Owen.
[207] ts 137.
[208] ts 138.
[209] ts 138.
In Dr Wynn Owen's opinion, the respondent would benefit from one‑to‑one counselling, which should be focussed on day‑to‑day problem solving. He believes the respondent has not yet learned his risk situations, or how to monitor his mental state for signs of stress or suicidal thinking.[210] Future treatment should focus on those matters and his problems with intimate and non‑intimate relationships.[211]
[210] ts 97.
[211] ts 94.
As I discussed earlier, Dr Wynn Owen considers that a psychological assessment should be conducted to ascertain if the respondent has a learning difficulty and, if so, to determine measures that can inform the way in which future treatment should be delivered.
Dr Wynn Owen believes that whether the respondent is subject to a continuing detention order or is returned to community subject to a supervision order, the circumstances will be stressful for him, and it would be prudent for there to be ongoing review of his mental state.[212]
Effect of time in prison
[212] ts 97.
When asked about the risk of institutionalisation, Dr Wynn Owen acknowledged that if the respondent were to spend more time in custody, this would not assist with his ability to cope in the community.[213] In his opinion, if the respondent is to remain in detention, he will require targeted interventions of the kind I have discussed, and should be given the opportunity to develop skills and strategies with regard to independence, to reduce the stress attached to the basics of daily living.[214] That could be done by moving the respondent into a self‑care unit within the prison system, if he were considered suitable for such a move.
[213] ts 119.
[214] ts 119.
Community Supervision Assessment Report
The Community Supervision Assessment Report confirms some matters referred to by Dr Wynn Owen and Mr Cameron. For instance, Mr Farrell states that the respondent 'experienced difficulties in articulating any substantive detail about his engagement, benefits gained or concepts learned from participating in ISOTP'.[215] The respondent said that his poor hearing had an impact on his engagement and his memory was failing him.[216]
[215] BOM 83.
[216] BOM 83.
The prison visits and telephone records tended to confirm, as at the time of the review, that the respondent led a lonely existence, if that is to be measured by contact with persons from outside the prison. He had not received social visits since March 2017, although there had been official visits from Uniting Care West and the Department of Justice. He had made no calls on the prison telephone system since his transfer to the prison where he was being held in November 2017.
Mr Farrell attached to his report a proposed supervision order if the court were to conclude that it was appropriate to release the respondent subject to such an order. I have discussed this above at [144] – [145]. I note that, while the proposed order contained conditions that were additional to those in the supervision order to which the respondent was subject when he was released in 2009, it was in similar terms to the order that was proposed during the contravention proceedings in 2017, if the court had not ordered the respondent to be detained. Of course, I came to the conclusion at that time that the community could not be adequately protected if the respondent were to be released subject to such a supervision order, and there were no other conditions that could reasonably be imposed to provide adequate protection, given the respondent's circumstances at that time.
It is sufficient to mention two other aspects of the evidence given by Mr Farrell and the contents of the Community Supervision Assessment Report. First, accommodation was available for the respondent if he were released subject to a supervision order. The property had been assessed by WA Police. It is sufficient to say that, if I had concluded that it was appropriate otherwise to release the respondent subject to a supervision order, the property would have been suitable as the specified residence.
The second matter arose from Dr Wynn Owen's recommendation that the respondent be given the opportunity to progress to self‑care in the prison system. Mr Farrell said that such a course would require the respondent to be transferred to another prison, but there was scope for him for such a transfer to be negotiated if the respondent was assessed as a suitable candidate. Within the other prison the respondent would eventually progress to self‑care.
Conclusion - The respondent remains a serious danger to the community
On the evidence presented at the hearing, in particular the assessments made by Dr Wynn Owen and Mr Cameron, I am satisfied to a high degree of probability that the respondent continues to be a serious danger to the community. Indeed, it is the only reasonable conclusion, and it was not disputed on behalf of the respondent. Despite his claims to the contrary, the evidence shows that he has an entrenched sexual interest in children and persistent distorted thinking about the sexuality of children. He continues to lack proper insight into his attitudes and his risk of committing a sexual offence, in particular against a child. The combination of the actuarial assessment, the RSVP assessment and his responses during the interviews establish that his risk of serious sexual re‑offending, if he is not subject to a continuing detention order or a supervision order, is at a level that is unacceptable. The question is whether the community can be adequately protected if the respondent were released on a supervision order.
Consideration of the appropriate order
Has there been a change in the respondent's circumstances?
The determination of whether the continuing detention order should be affirmed or whether a supervision order is now appropriate turns on whether there has been a change in circumstances. This is not a case in which that change might be found in external measures. The change must occur in the respondent's personal circumstances. That was the gravamen of the objectives I outlined at the conclusion of my reasons in Decke [No 2].
To his credit, the respondent has been of good behaviour generally within the prison and has not used substances. He also participated in the ISOTP in a meaningful manner and has willingly received treatment in the form of individual counselling. However, I am satisfied on the evidence presented in the review that the respondent's circumstances have not improved in relevant respects since 28 April 2017.
Insight into offending and paedophilia
The evidence overwhelmingly establishes that the respondent has not gained sufficient insight into his offending and paedophilia. To the extent that he appeared to have made gains during the ISOTP, it appeared at the time of the review that the gains had not been enduring. The respondent's continued minimisation and denial of past sexual offending and the persistence of his distorted thinking about the sexuality of children are matters that remain of concern and indicate a lack of progress in the reduction of his risk.
Understanding of risk factors
The respondent's understanding of his risk factors and strategies to avoid or deal with risk scenarios remain rudimentary, notwithstanding his participation in the ISOTP and individual counselling. I am not satisfied that he has made sufficient progress in that regard as to enable his risk to the community to be adequately managed under a supervision order.
Lack of honesty and reliability
On the one hand, the respondent has demonstrated that he is prepared to be frank about his beliefs and attitudes, which has led to the assessments that have been made about his continuing distorted thinking and lack of insight. On the other hand, for the reasons set out at [98] –[103] above, there remain concerns about his honesty and reliability. Those concerns raise doubts about the ability of authorities to supervise him, given that there would be an expectation that he would be forthcoming with matters that might indicate an increase in his risk of reoffending.
Understanding and acceptance of the need for conditions
Despite his assertions that he would comply with the proposed conditions of a supervision order, the respondent continues to challenge the need for a number of the conditions that are essential for the proper management of his risk of committing a serious sexual offence: see [104] – [110] and [144] above. This appears to be related to a continuing lack of an adequate understanding of his risk factors and the measures that must be put in place to monitor his behaviour and prevent the risk of serious sexual offending arising. In short, his circumstances have not changed substantially from the time of the contravention proceedings.
The combination of factors
It may be that if each of the deficits described in (i) to (iv) were considered alone, it would not necessarily result in a conclusion that a supervision order would be inadequate to protect the community. However, in my opinion, the combination of deficits does lead to that conclusion.
Whether the respondent would substantially comply with standard conditions
The respondent has not given evidence in the proceedings, as is his right. In those circumstances, my assessment of whether he would substantially comply with the standard conditions of a supervision order must be based on the evidence of Dr Wynn Owen and Mr Cameron, in light of the respondent's history. Having regard to all of the evidence, and the conclusions I have outlined at (i) to (v) above, I am not satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order. Further, in my opinion, there continues to be a significant risk that the respondent would fail to comply with other conditions that are designed to manage risk.
Conclusion – Continuing detention order affirmed
As a consequence of my findings on the review, I affirm the continuing detention order.
Recommendations for further management and treatment
I note that both Dr Wynn Owen and Mr Cameron, in their evidence, made a number of recommendations in terms of the future management and treatment of the respondent, in particular, as I have already said, both recommended a change in focus in his treatment to practical measures that will avoid risk scenarios. Treatment should also continue to address his problems with stress and forming and maintaining personal relationships with adults.
It was also recommended by both Dr Wynn Owen and Mr Cameron that the respondent be assessed for any cognitive deficit. In the event a deficit is identified, future treatment would need to be tailored to accommodate any learning difficulty.
Further, Dr Wynn Owen expressed the view that the respondent should be given the opportunity, if it is possible, to progress to self‑care. The reason for that is that the factors that have contributed to his offending in the past have included lack of skills within the community, in particular in respect of self‑care, that have resulted in stress, and stress has been a significant factor in contributing to the circumstances that have resulted in behaviour that puts him at risk of committing serious sexual offences. Therefore, if the opportunity is available, the respondent should be allowed to progress to self‑care.
As I indicated at the time I gave my decision and made the order, it is the court's expectation that those who have responsibility for the custody and care of the respondent would endeavour to give effect to the recommendations. Although the respondent is likely to continue to be a serious danger to the community for the foreseeable future, there remains the possibility for change in the level of his risk if he is given the opportunities that have been recommended.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HF
Associate to the Honourable Justice Fiannaca27 SEPTEMBER 2019
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