Criminal law - Miscellaneous matters - Dangerous sexual offender subject to continuing detention order - Second annual review - Turns on own facts

Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17, s 33

Decision to expressly decline rescission of continuing detention order

Attorney-General for Queensland v Francis [2006] QCA 324

Director of Public Prosecutions v Williams [2007] WASCA 206

1 BLAXELL J: This is an application for the second annual review of an order for the continuing detention of the respondent (Mr Comeagain) under the Dangerous Sexual Offenders Act 2006 (WA) (the Act). The continuing detention order was made by McKechnie J on 22 October 2008 following a finding that Mr Comeagain was a serious danger to the community within the meaning of s 7 of the Act. Part III of the Act requires that there be an annual review of Mr Comeagain's detention, and on the first such review (on 17 December 2009) Murray J expressly declined to rescind the continuing detention order.

2 For the purposes of the second annual review a book of materials (including sex offender treatment progress reports, psychological assessments, and a psychiatric report) has been tendered by consent. I have also heard oral evidence from the psychiatrist, Dr Bryan Tanney, and the clinical psychologist, Tina Marley.

3 Mr Comeagain was born on 3 June 1973 and is now 37 years of age. He is an Australian Aboriginal man who was raised predominantly in the Mullewa/Geraldton region. He has a history of five episodes of serious sexual offending commencing in 1987 when he was 15 years old. The victims of those offences were generally adult women, but a group of five offences in 1994 were committed against a 9-year-old girl.

4 Mr Comeagain has also committed offences of a non-sexual nature, and he has spent the bulk of his adult life in prison. There have been very few occasions following any release from prison when he has not re-offended again shortly thereafter.

5 Mr Comeagain's most recent episode of serious sexual offending was in January 2000 when (in separate incidents) he deprived two victims of their liberty in their own homes and subjected them to aggravated sexual penetration. This occurred only five weeks after he had been released on parole in respect of previous sexual offending, and following completion of a sex offender's treatment programme. At that time he was participating in a maintenance treatment programme.

6 Following Mr Comeagain's conviction for those offences he was sentenced to 12 years' imprisonment without parole. During that 12 years he did not participate in any further sexual offender's treatment programme. In that regard there was little incentive for him to do so prior to the passing of the Act given that he was not eligible for parole and was bound to be released upon the expiration of his sentence.

7 However, during 2007 and 2008 Mr Comeagain did make some efforts to address his offending behaviour. He engaged the services of a clinical psychologist (Mr Annand Kamalesh) who conducted a series of 15 individual counselling sessions. The counselling schedule was incomplete but still ongoing at the time of the continuing detention order.

8 In about 2002 there was a significant change in Mr Comeagain's circumstances as a result of him coming into contact with an older woman (Ms Winter) working within the prison system on an Aboriginal suicide prevention project. Over the following years they gradually developed a friendship and they ultimately became engaged. For the purposes of the proceedings under the Act, it always has been proposed that in the event of any release into the community Mr Comeagain would reside with Ms Winter.

9 When reviewing the evidence on the original application McKechnie J gained the 'overwhelming impression' that without a formal order it was inevitable that Mr Comeagain would soon offend in a violent sexual way. Notwithstanding that Mrs Winter's involvement with Mr Comeagain favoured a supervision order, his Honour found that a release into the community would be 'completely unacceptable at this stage'. In determining that a continuing detention order was the only safe course, his Honour also observed that:

His situation will have to be reviewed in a year and it may be that during that time significant progress will be made with Mr Kamalesh [86].

10 However, for reasons that are not clear from the evidence, the counselling by Mr Kamalesh did not continue after 2008. In July 2009 Mr Comeagain commenced an intensive sexual offender's treatment programme which he was scheduled to complete in February 2010, but his participation was discontinued on 18 November 2009 because of cannabis use. The treatment non-completion report provided the following negative assessment:

[H]is current motivation to complete the program is evidently largely been aimed at gaining parole as opposed to specifically being aimed at addressing his offending behaviour. Such a stance is not uncommon prior to offenders entering treatment though often shifts once they engage in the process. In Mr Comeagain's case he remained quite ambivalent and over the course of his involvement and his vacillated between appearing reasonably motivated to adopting a more oppositional and hostile stance. The latter position was frequently followed by comments to the effect that he viewed himself as 'too far gone' in reference to the complexity and seeming intractability of issues related to his offending. There was evidence of hopelessness to his outlook at such times. He also vacillates between appearing to be aware of what role he plays in various negative outcomes in his life to a position of feeling aggrieved and unfairly treated. Available documentation indicates that he has cycled through such positions on previous occasions over the course of his lengthy incarceration. He has numerous methods for eliciting sympathy to his plight and there is also evidence to suggest that he seeks to influence decision makers to his way of thinking by his way of his own brand of reasoning, the upshot being that he is sometimes unrealistically optimistic about his prospects of meeting requirements to progress towards release.

Despite the comments and observations about his difficult or laboured progress in treatment to date Mr Comeagain nevertheless impresses as having the capacity to effectively engage in and complete an intensive sex offender treatment program. Beyond the day to day issues regarding his motivation and presentation in group, his continued use of cannabis is clearly also an issue of central concern and has ongoing relevance in respect to his capacity to manage his behaviour in the future. His capacity to adversely impact on fellow participants should be taken into account in considering his placement in a future group based program.

11 The first annual review of Mr Comeagain's detention occurred on 17 December 2009, and Murray J expressly declined to rescind the order previously made. This decision was based upon the lack of any significant change in Mr Comeagain's circumstances over the previous year, and the consequent conclusion that he remained a serious danger to the community. As to the failure to complete the sexual offender's treatment programme, his Honour commented as follows:

I say this to Mr Comeagain: he needs to understand that although the process may at times appear tedious, may at times appear as a process which is not making a lot of progress, in the end these are programs devised by experts who understand what they are doing and he ought to suspend judgment about these programs and wholeheartedly get into it because in the end therein, it seems to me, lies his best prospects of achieving his release from detention in a situation where he can re-establish and then go about an ordinary way of life in the community (ts 309).

12 During early 2010 Mr Comeagain was assessed once again for inclusion in an intensive sex offender treatment programme. However, after three interviews and on the basis of other objective information the determination was made that he was unsuitable for the programme. The primary reason for this decision was that he was regularly using cannabis. The interview facilitators also concluded that:

He was doing just enough to be considered eligible for the program but his motivation nevertheless appeared to be limited beyond the fact that, in his view, completing such a program would progress him towards release.

13 Although Mr Comeagain has substantial treatment needs, his continued use of cannabis has barred his participation in any further sex offender treatment programme. Ms Sarah Ballantyne (the counselling psychologist on the Dangerous Sexual Offender Psychology Team) has explained this situation as follows:

Mr Comeagain's ongoing substance use remains the primary impediment to his participation in a Sex Offender Treatment Program. Despite his involvement with program and individual interventions (as outlined above) designed to assist him to address his ongoing substance use he has continued to articulate his intention to maintain use. Recent urinalysis results indicate he has actually increased use with the addition of buprenorphine as well as cannabis.

The requirement for abstinence from substance use has been explained to Mr Comeagain in various ways by different people over the past 18 months and his understanding of the information has been checked. There is no evidence of any cognitive deficit which would indicate he has an inability to understand.

Motivation is a dynamic construct and an individual's motivation is elastic and subject to change. At the present time and over the past 18 months Mr Comeagain's stated motivation to alter his substance use (and by proxy, to engage meaningfully in sex offence specific treatment) has been either ambivalent or explicitly denied. Proof of his continued use has been consistently recorded in urinalysis results. Various attempts (outlined above) have been made to enhance Mr Comeagain's motivation utilising motivational interviewing techniques without any observable alteration in his attitude or behaviour. At this point in time there appears to be no therapeutic benefit in offering further, similar interventions. In fact, it could be counter therapeutic in that further intervention risks being perceived by Mr Comeagain as a substitute to sex offender specific counselling.

It is proposed, that Mr Comeagain be required to demonstrate abstinence from substance use via negative urinalysis results of at least eight weeks prior to reengagement in any further intervention or assessment for a Sex Offender Treatment Program. He would be considered eligible to voluntarily participate in a substance use program in order to assist him to achieve those results however, to date he has refused opportunities to engage in this intervention option. Mandated substance use treatment is not considered appropriate on the basis of Mr Comeagain's clearly documented lack of motivation to actively attempt to alter his drug use at the present time. As stated above should Mr Comeagain exhibit some evidentiary progress toward abstinence (the proposed eight week provision of negative urinalysis results) his motivation and assessment for further Intervention opportunities will be assessed.

Mr Comeagain's situation will be regularly reviewed every three months by the DSO Psychologist with regard to his attitudes towards his substance use and future treatment.

14 The psychiatrist, Dr Bryan Tanney, has assessed Mr Comeagain for the purposes of the present review. Dr Tanney has analysed the link between substance abuse and the episodes of sexual offending and considers it to be a contributing factor. In his opinion:

The most likely process is that the illicit substance affects his judgment and emotional regulation with disinhabition of sex and aggressive drives.

15 Accordingly, Dr Tanney considers that sexual offending would 'be more likely in the circumstance of substance intoxication and be opportunistic/unpredictable in its timing'.

16 However, Dr Tanney does not agree with the departmental policy which bars the participation of a sexual offender in a treatment programme when substance abuse is present:

This assumption that these problems (issues of sexual offending and substance abuse) are linked together and require to be managed and treated concurrently is not the prevailing opinion in the current management of such co-occuring problems, when substance abuse is one of the conditions. Rather than substance abuse being regarded as linked or comorbid with some other psychological condition, the current treatment perspective regards them as separate problems that can be managed as 'dual diagnoses'. In the clinical setting, a failure to remain substance abstinent is not regarded as a justification for withdrawing or denying ongoing care for the other diagnosis/condition. (Certainly, substance intoxication at the time of a treatment episode would be regarded as unacceptable).

At this time, the justification that bars him from participation in the ISOTP is not clinically supportable.

17 Dr Tanney considers that Mr Comeagain has four areas of treatment needs which must be addressed if the risk of his future re-offending is to be reduced. Two of these areas are sexual offending, and substance abuse. A third area is 'victimisation', and in this regard:

The objective is to achieve some integration within himself of the experiences of childhood abuse/trauma in order that these not continue to influence his current psychological, emotional, interpersonal and social functioning. There has been almost no identifiable treatment work offered or undertaken in respect of this issue.

18 A fourth area of treatment required for Mr Comeagain is social skills functioning. In this regard:

Mr Comeagain has spent most of his adult life in institutional custody and experienced a childhood that afforded little opportunity for appropriate development of social and interpersonal coping skills. Life skills programming or a structured transition towards community living has not been made available.

19 In the end, and as a result of his very thorough assessment Dr Tanney is of the opinion that Mr Comeagain 'continues to represent a very significant danger of re-offending sexually in the open community'. Dr Tanney summarised his conclusions as follows:

1. Despite some progress, four measures still conclude a considerably high likelihood of sexual reoffending should he be released to the community. Such reoffending would be unchanged in the likely offending scenario: adult female victims, assuredly involved physical violence, be more likely in the circumstance of substance intoxication and be opportunistic/unpredictable in its' timing.
2. Ongoing management of the risk of reoffending including monitoring and targeted treatment of issues contributing to its likelihood is required and likely to be ongoing for a considerable number of years.
3. Previously identified issues of victimization, sexual offense specific matters and substance abuse have not been adequately addressed.

Each remains an active contributor to the likelihood of sexual reoffending.

1. Mr Comeagain is contemplating the merits of abstaining from illicit substances but remains uncommitted in this matter. Progress towards substance abstinence is a critical part of lessened likelihood of reoffending, but Mr Comeagain abuses substances as a maladaptive means (self-medicating) of coping with the prison environment.
2. Coming to terms with his experiences of victimization and addressing sex offense specific matters has not happened because access to the needed treatments and supports has not happened. ISOTP participation has been denied due to an understandable institutional policy respecting the treatment of substance abuse co-occurring with another condition (sexual offending). However, this policy is not currently supported as clinical best practice.

1. Assuring access to necessary treatment and supports within a custody environment remains the most appropriate path forward for effective management of his reoffending risk. Should such access not be available, a structured, closely monitored and supported Community Supervision Order can be contemplated.

20 Section 33 of the Act provides to the following effect:

(1) I must rescind the continuing detention order if I do not find that Mr Comeagain remains a serious danger to the community.

(2) If I do find that he remains a serious danger I can either expressly decline to rescind the order, or rescind the order. If I rescind the order I must make a supervision order for a specified period and on appropriate conditions.

(3) In making a decision under (2) above, 'the paramount consideration is to be the need to ensure adequate protection of the community'.

21 Consistent with the authority of Director of Public Prosecutions v Williams [2007] WASCA 206 [79] if making a decision under s 33(2) I should adopt the least restrictive alternative compatible with the protection of the public. In that regard, and in the absence of evidence to the contrary, I should assume that in the event that a supervision order is made, resources will be made available to provide adequate supervision (Williams [81]; Attorney-General for Queensland v Francis [2006] QCA 324 [36]).

22 There has been no significant change in Mr Comeagain's circumstances since the date of the last review, and I make the finding that he remains a serious danger to the community.

23 I accept Dr Tanney's evidence that there are four areas of treatment needs that require to be addressed before there can be any reduction in the risk of Mr Comeagain re-offending. I also accept Dr Tanney's opinion that there is no clinical reason why two of these areas of treatment (sexual offending and substance abuse) cannot be treated concurrently. Nevertheless, if Mr Comeagain was to become abstinent from cannabis he is far more likely to benefit from a sex offender's treatment programme. I also find that there are good and substantial reasons (as set out on pages 85 and 86 of the book of materials) for the Department of Corrective Services policy requiring abstinence from drug use prior to inclusion in a programme.

24 It is because of Mr Comeagain's refusal to abstain from cannabis that he has not yet participated in further substance abuse and sex offender treatment programmes. However, he is not in any way responsible for the Department's failure to address his remaining treatment needs in respect of victimisation and social skills functioning.

25 My decision under s 33(2) requires consideration of a number of significant factors. Mr Comeagain's substance abuse contributed to his past offending and progress towards abstinence is critical to a reduction in the risk of him re-offending. However, he is unwilling to address his substance abuse problem, and will almost certainly maintain this attitude if released into the community. Furthermore, his other treatment needs remain unaddressed.

26 If released into the community Mr Comeagain will live with Ms Winter and be subject to her beneficial influence. Even so, Dr Tanney assesses that he would be at high risk of committing further sexual offences involving physical violence. This risk would be heightened in the likely circumstances of substance intoxication, and his offending would be opportunistic and unpredictable in its timing.

27 I accept Dr Tanney's assessment of the level of risk. In light of all of the relevant factors I find that no matter how a supervision order might be structured, there would still be a very significant danger that Mr Comeagain would sexually re-offend in a violent way. For these reasons I expressly decline to rescind the continuing detention order.

28 I add that the quickest path towards Mr Comeagain's future release into the community is for him to abstain from cannabis and thus qualify for the substance abuse and sex offender's treatment programmes. It is also necessary that the Department activate appropriate counselling and/or programmes to address his needs in respect of victimisation and social skills functioning.

29 Information provided to me (by consent) following the hearing of the review indicates that even with Mr Comeagain's best endeavours, the Department may have difficulty in accommodating him in a sexual offender's treatment programme before 2012. If so, that would be a matter to be taken into account during the next annual review which could possibly favour a different decision under s 33(2).