Batistatos v Road Traffic Authority of New South Wales

Batistatos v Road Traffic Authority of New South Wales - [2009] WASCA 116 - WASCA 2009 case summary — Zoe

[52]

[The appellant] was first charged with sexually offending against young girls in 1994 when he was indicted on one count of unlawful and indecent assault, and four counts of sexual penetration allegedly committed on two sisters aged 9 and 11 years respectively.

The relevant background to these charges was that [the appellant] and his wife had become friendly with the parents of the two girls in about 1990. The father of the children was frequently away from home working on oil rigs in Indonesia, and [the appellant] often assisted the family by doing odd jobs around their house. The friendship between the two families was such that they also often holidayed together.

[The appellant] entered pleas of not guilty to all of the charges against him and at trial was convicted of only one offence of digitally penetrating the elder sister (the first victim).

That offence was committed near Carnarvon in late 1992. The circumstances were that the [appellant's] family and the first victim's family were travelling together in two vehicles on a holiday to Coral Bay. They stopped overnight at a station property and the two young sisters went to the showers which were some distance away from where the group were accommodated. When the two girls came out of the showers, [the appellant] persuaded the first victim to go with him to a shearing shed. There he told her to bend over which she did. He then pulled down her lower clothing and penetrated her vagina with his finger from behind. The penetration was sufficiently forceful to cause bleeding. When [the appellant] was sentenced some 18 months later, the sentencing judge noted that the effects on the first victim were 'still very bad'.

On 20 April 1994, [the appellant] was sentenced to 3 years' imprisonment for the offence against the first victim and made eligible for parole. Towards the end of that term of imprisonment he was charged with a second group of offences comprising five counts of unlawful indecent assault, and four counts of sexual penetration allegedly committed on a 13-year-old girl (the second victim) during 1991 and 1992. On 12 August 1997, [the appellant] pleaded guilty to two offences of sexual penetration, but not guilty to the remaining charges. The Crown accepted those pleas in satisfaction of the indictment.

The circumstances surrounding the offences committed on the second victim had remarkable parallels with those in respect of the first victim. For a period of approximately two years up until the first offence against the second victim, [the appellant] and his wife had been very friendly with her parents. The two families sometimes went on holidays together, and [the appellant] frequently visited the second victim's house (on some occasions when she was home alone).

It is clear from the transcript of proceedings that the two pleas of guilty entered by [the appellant] were negotiated pleas and that he did not dispute certain allegations of prior sexual misconduct (not the subject of charges) which were indicative of his relationship with the second victim.

This prior sexual misconduct had commenced approximately six months before the first offence and at a time when the two families were preparing for a joint camping trip to a station property near Kalgoorlie. Prior to departing Perth, the second victim accompanied [the appellant] to his house where his wife was packing for the holiday. While driving to the house, [the appellant] asked her numerous questions of an intimate sexual nature concerning her periods, whether or not she was on 'the pill', and whether she had ever engaged in sex. He also said that he knew a girl who had a lump in her breast, and suggested that the second victim should show him her breast if she ever had any concerns of a medical nature.

Some days later while the two families were on the camping holiday near Kalgoorlie, [the appellant] entered a bedroom where the second victim was sleeping with her sister. He went to the second victim and kissed her with his tongue inside her mouth. He then left her and went over to the sister's bed where he kissed the sister.

During the months that followed, [the appellant] often visited the second victim's house, and occasionally she was there alone. On some of those occasions he asked her to go with him to her bedroom and to shut the door, but she rejected these suggestions.

The first offence against the second victim was committed in January 1992 only two days after she had turned 14 years of age. The two families were yet again on a camping holiday at the same station near Kalgoorlie. [The appellant] invited the second victim to accompany him in his four wheel drive vehicle on a short trip to collect food from a freezer.

While on the return journey, [the appellant] pulled up at the side of the road and told the second victim to get out of the vehicle. She did as she was told and when they were both standing outside the vehicle he ordered her to bend over, which she did. He then pulled her shorts and underpants down to her ankles and made her bend over further so that her hands were touching the ground. [The appellant] then lowered his own trousers and penetrated the second victim's vagina with his penis from behind. It was a forceful penetration which caused the second victim's vagina to bleed.

Subsequently, [the appellant] said to the second victim that she was not to tell anyone about 'our little secrets'. This was said in such a way that the second victim took it to be a threat. (The prosecution also alleged that [the appellant] later made a more specific threat that he would hurt the second victim's family, but this allegation was denied by his counsel).

The second offence against the second victim was committed in September 1992. [The appellant] took the second victim and her brother on a drive in his vehicle to Baldivis. On the way, [the appellant] stopped at a service station and asked the brother to wait there on some pretext. He then drove the second victim to a nearby bushland area, where he stopped the vehicle and removed her lower clothing. He then penetrated her vagina with his penis, fondled her breasts, and kissed her on the mouth. She was an unwilling participant, and he was angry with her because she would not open her mouth.

When [the appellant] returned with the second victim to the service station her vagina was bleeding profusely and she needed to stem the flow. She then suffered the embarrassment of asking her brother for money to buy tampons (on the pretext of her periods). The brother had no money, so the second victim suffered the further humiliation of obtaining the money from [the appellant] (who was reluctant to assist).

Thereafter, the second victim hid in her bedroom whenever [the appellant] visited her family's home. She did not disclose the offences to her parents until [the appellant] was convicted of the offence against the first victim (and as I understand the facts, as a result of that event). On 15 August 1997, [the appellant] was sentenced to a total of 7 years' imprisonment for the offences against the second victim and made eligible for parole.

In the meantime, [the appellant] had been released to parole in April 1996 in respect of his first period of imprisonment. While on parole, and while the charges in respect of the second victim were still pending, he committed two further offences of indecent dealing against a 7-year-old girl (the third victim).

The background to these offences was that the third victim was one of five children in a family with whom [the appellant] had been friendly over a six month period as a result of them all attending the same church. The first offence was committed in [the appellant's] vehicle and involved him placing his hand up the third victim's skirt and rubbing her genital area on the outside of her underwear. The second offence was committed later the same day while the third victim and her younger sister were playing on a swing. While the third victim was hanging upside down on the swing, [the appellant] once again rubbed her genital area on the outside of her underwear.

On 29 January 1998, [the appellant] pleaded guilty to each of the two offences against the third victim. He was sentenced to terms totalling 18 months' imprisonment which were made concurrent with the previous terms of imprisonment he was then serving. He was also made eligible for parole.

After [the appellant] returned to prison in 1998 he became acquainted with a woman (Ms G) who was introduced to him by another prisoner. Ms G was separated from her husband and had the care of two young daughters (the fourth and fifth victims). Somewhat surprisingly, a relationship developed between [the appellant] and Ms G as a result of regular telephone conversations, and her frequent visits to see him at the prison. When [the appellant] was released to parole in June 2000, he stayed with Ms G and her daughters on weekends, and then for a period of two weeks (in breach of his parole conditions).

Ms G encouraged [the appellant] to develop a paternal relationship with her two daughters, who came to look upon him as a father figure. It is also relevant to note that throughout the time that [the appellant] was on parole, he had a very active sexual relationship with Ms G. Nevertheless, during September and October 2000 (commencing approximately 11 weeks after being released to parole) he committed a series of sexual offences against the two young girls who were then 10 years and 6 years old respectively.

All of these offences were committed in the course of (and on the pretext of) [the appellant] purportedly carrying out 'massage therapies' on the two children. In respect of the 10-year-old girl (the fourth victim) he was later convicted of five offences involving penetration of her vagina with his finger, tongue and penis, and penile penetration of her anus. In respect of the younger girl (the fifth victim) he was convicted of two offences involving penetrations of her vagina and anus with his finger.

[The appellant] pleaded not guilty to the offences committed on the fourth victim, but was convicted following trial. He then entered pleas of guilty to the two offences against the fifth victim. On 28 March 2002 he was sentenced to a total of 10 years' imprisonment without parole. It is that period of imprisonment which expired on 15 October 2008 [19] - [41].

[92]

In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.

There are four reasons for considering that the meaning outlined above is what Parliament intended by the expression 'unacceptable risk'. The first is that s 7(1) expressly refers to the risk as a risk which exists 'if the person were not subject to [either] a continuing detention order or a supervision order'. That is, Parliament has expressly adverted to the consequences of making a finding, in referring to the type of risk to be guarded against. Second, s 7(2) places upon the DPP the onus of satisfying the court of the matters described in s 7(1) by acceptable and cogent evidence and 'to a high degree of probability'. An onus expressed in that way suggests a task of substantially greater difficulty than that of simply ascertaining whether there is a risk which is real and not remote. Third, s 7(3) sets out a variety of matters to which the court must have regard in determining the related question of whether a person is a serious danger to the community. The list includes factors which suggest that there is some need to balance the interests of the offender against those of the public, or at least that it is permissible for a court to have regard to such matters. Section 7(3)(i), for example, refers to the need to protect members of the community from 'that risk' (suggesting that the public may not need protection from every risk) while s 7(3)(j) refers broadly to 'any other relevant matter'.

Finally, it is to be noted that many of the provisions of the Act are similar to, although not identical with, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Section 13(2) of that Act referred to 'an unacceptable risk that the prisoner will commit a serious sexual offence'. It was argued in Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575 that such a test was devoid of practical content. In rejecting that contention, Gleeson CJ at [22] and Callinan and Heydon JJ at [225] referred to the decision of the High Court in M v M [1988] HCA 68; (1988) 166 CLR 69, a case which dealt, as Gleeson CJ summarised it in Fardon, with 'the magnitude of a risk that will justify a court in denying a parent access to a child'. That is, those members of the High Court who referred directly to the question considered that the legislature had adopted a criterion and a standard appropriate to the balancing of competing considerations. Fardon was decided prior to the enactment of the Act, and it would be expected that Parliament in Western Australia would be aware of the meaning given to that expression in the reasons in Fardon. An examination of Hansard confirms that Parliament was aware of that case: eg Parliamentary Debates, Legislative Assembly, 15 November 2005, 7272 - 7273 [63] - [65].

[99]

Monitoring

[The appellant's] self report should not be relied on, supervision will need to include contact with those with whom [the appellant] has contact. As he has a history of non-disclosure of offending history all those with whom he has contact should be briefed on his sexual offending history and his past history of misleading and manipulating victim families.

Any report of involvement with families with children, any request from [the appellant] or others for him to have access to families or family homes should result in a reassessment of risk and review of management plan.

Treatment

[The appellant] should complete an Intensive Sexual Offender Treatment Programme. This should address his denial of much of his offending and his reliance on external controls as the only way to reduce his risk of re-offending. He should acknowledge deviant sexual arousal. He should develop non-pathological strategies to cope with stress and recognise his current pathological coping style and its outcomes including his offending behaviour.

It is not currently possible to assess [the appellant's] level of sexual drive as he is unforthcoming about this aspect of his internal world ... Outcomes of SOTP should include honest reporting of his sexual drive, which may potentially assist management and would enable better self-regulation.

It is my opinion that treatment will be hampered by [the appellant's] current involvement in the Sycamore Tree Project. [The appellant] appears to use this as a way of atoning for any misdeed in the past and has possibly made some steps in victim empathy, for other people's victims. He however appears to have made no gains in his empathy towards his own victims, rather it meets his own needs of feeling 'good' and 'needed'. I am also concerned that individual meetings with victims may be being pursued by [the appellant] to secure access to new victims. Continued involvement may serve to undermine progress (and engagement) in SOTP, [the appellant] needs to see self awareness as his treatment goal not feeling good about himself, reinforcing his distorted sense of self, because he is helping others.

Supervision

[The appellant] is not in my opinion currently appropriate for community supervision, he should be required to complete an intensive SOTP above prior to release (Book of Materials 953 - 954).

[102]

(a) As already noted, I consider that the reports prepared by Drs Wojnarowska and Wynn-Owen pursuant to s 37 should be given significant weight. [The appellant] cooperated with the examination by each psychiatrist notwithstanding that he was evasive about his sexual proclivities and denied the bulk of his offending.

(b) I have before me a number of other psychiatric or psychological assessments which were prepared in the past for the purposes of sentence, or with a view to [the appellant] being treated while in prison. The reports of these assessments show that [the appellant] has always tended to minimise and deny his offending, and that his attitudes over the years have not significantly changed.

(c) The information in these other reports is also indicative of [the appellant's] continuing propensity to commit serious sexual offences by reason of his lack of self-awareness, and an inability or unwillingness to control his actions in response to his deviant fantasies.

(d) The history of [the appellant's] sexual offending reveals an entrenched pattern of behaviour. In each instance, he has targeted and befriended the parents of young female children in order to gain access to his victims. He has also expended considerable effort and time to gain the trust of the parents before manipulating, coercing, or grooming the children into situations where they could be sexually abused. Particularly disturbing aspects of his pattern of offending are the vaginal bleeding caused by his penetrations, and his recklessness in being willing to risk discovery in order to achieve his ends.

(e) The respondent completed an Intensive Sex Offenders' Treatment Programme between August 1999 and May 2000 prior to being released to parole approximately one month later. He then regularly attended a community maintenance treatment programme while at the same time committing serious sexual offences against the fourth and fifth victims. [The appellant] has not completed any further sex offender treatment programme during his latest period of incarceration. He did attend the voluntary Sycamore Tree Programme for seven half days during 2005, but this did not specifically address or treat his sexual offending.

(f) [The appellant's] participation in the Intensive Sex Offender Treatment Programme [SOTP] and subsequent maintenance programme during 1999 and 2000 had no positive effect. He gained a full intellectual understanding of what these programmes were trying to achieve, but at the same time commenced his most recent cycle of offending by targeting the fourth and fifth victims. Although [the appellant] claimed to have benefited from the Sycamore Tree Programme, the examinations by Drs Wojnarowska and Wynn-Owen show that it has had no beneficial impact in respect of his sexual deviancy. In this regard, [the appellant's] current attitudes towards his offending are essentially the same as before.

(g) [The appellant] has a significant criminal record of serious sexual offences committed against five vulnerable young victims. All of these offences were committed after lengthy premeditation, and involved very gross breaches of trust.

(h) The assessments of the psychiatrists aside, the evidence establishes to my satisfaction that there is a very substantial risk that [the appellant] will commit a serious sexual offence if not subject to a continuing detention order or a supervision order. The factors indicative of this risk include his past pattern of offending, the failure of the treatment programmes in 1999 and 2000 to prevent his contemporaneous offending against the fourth and fifth victims, his failure to take the opportunity of participating in a further SOTP during 2006, his unchanged attitudes of minimisation and/or denial of his past offending, his continuing claims that his victims are partially to blame for the culpable conduct that he does admit, and his general lack of remorse. In my view, the only reasonable inference from the combination of these factors is that there is the substantial risk I have referred to.

(i) Implicit in my finding that there is a substantial risk of reoffending is the need to protect members of the community from that risk. The particular members of the community who require protection are young female children whose parent or parents might come into contact with and be befriended by [the appellant] (as well as the parents themselves, who are potential secondary victims). Given [the appellant's] likeable disposition, and his ability to ease himself into close friendships, I consider that there is a need for a very high level of protection.

(j) Of further relevance is [the appellant's] reluctance to reveal his present level of sexual drive and libido. Honest disclosure of his innermost sexual thoughts and proclivities is an essential first step towards successful participation in a further SOTP, and without this there will be little prospect of future treatment gains [80].

[117]

During his most recent period of imprisonment, [the appellant] has not completed any sex offender specific treatment programme [SOTP]. Although he was booked to participate in a SOTP in 2004, that booking was deferred until 2006 because of lack of available programmes. In December 2005 the booking was cancelled altogether when [the appellant] advised that he no longer wished to participate because he had completed a voluntary faith-based programme run by the Prison Fellowship. On 19 November 2007 [the appellant] was reassessed and recommended for a sex offender high intensity programme. However, such a programme was not available prior to the scheduled date for [the appellant's] release from prison.

The voluntary faith-based programme which [the appellant] had completed, is known as the Sycamore Tree Project (STP) and is conducted by the Prison Fellowship. It is a programme which encourages offenders to feel empathy towards victims of crime in general. To this end, victims of crime are brought into the prison to discuss their experiences with the prisoners participating in the programme.

[The appellant] attended the first pilot programme for the STP in 2005 which was conducted on one morning per week over seven weeks. In the course of the programme he met three secondary victims of homicides and one secondary victim of a sexual offence (committed against the woman's sister). There were six prisoners participating including [the appellant], as well as two facilitators (one of whom was the solicitor and former president of the Prison Fellowship, Mr Michael Cockram).

Since completing the STP, [the appellant] has continued to be involved with the Prison Fellowship, and has been very active in creating minor works of art which are sold to raise funds for victims of crime. In this regard, it is clear from the evidence of witnesses called on behalf of [the appellant], that he has maintained the work ethic with which he was imbued as a child. He readily volunteers for tasks which other prisoners are reluctant to perform, and has made himself a key member of the prison chaplain's congregation. He is considered to have a friendly and likeable disposition, and he makes a very favourable impression on those who work on pastoral care within the prison system.

...

It is Mr Cockram's evidence that the Sycamore Tree Programme appeared to have a significant effect on [the appellant's] attitude towards his offending. In this regard there was a 'memorable impact' at one particular session when [the appellant] broke down after hearing the story of the woman who was the secondary victim of a child sex offence. During the three year period since then, [the appellant] has consistently expressed (non-specific) feelings of remorse about his victims, and Mr Cockram has no reason to doubt the sincerity of those statements.

However, Mr Cockram's impressions are contradicted by the psychiatrists who interviewed [the appellant] for the purposes of the reports required by s 37 of the Act. In this regard, it is Dr Wojnarowska's evidence that [the appellant] displayed an inconsistent approach towards both his offending and his victims. He denied that he had ever penetrated the first victim, said that he penetrated the second victim only once, and in respect of the fourth and fifth victims, said that he 'only touched them'.

To the limited extent that [the appellant] was prepared to admit his crimes, he continued to attribute some of the blame to the victims or their families. Although he talked at length to Dr Wojnarowska about his feelings of empathy towards victims generally, he did not appear to be able to identify himself as an offender who had committed crimes against specific victims.

When interviewed by Dr Wynn-Owen, [the appellant] denied all of his offences other than a single offence of sexual penetration against the second victim which he claimed was consensual. Notwithstanding this limited admission, he displayed a lack of empathy towards the second victim by making a jocular remark about her excessive weight.

With regard to the first victim, [the appellant] denied that there was any act of penetration but admitted rubbing her vagina. He implied that this incident had been precipitated by her when she exposed herself while lying naked on a bed. He also said that whenever the first victim's mother answered the front door to him while her husband was away she was 'practically naked'.

Furthermore, [the appellant] specifically denied committing offences against the third, fourth and fifth victims. He also asserted that the fourth and fifth victims were often naked around the house, and that the charge of anal penetration had been made up because 'they'd seen me having sex with their mother from behind' [49] - [58].

[126]

It is submitted on behalf of [the appellant] that the failure of the authorities to secure appropriate treatment for him prior to the expiration of his sentence 'is not a price which ought to be paid by the [the appellant]'. Although the rationale of this submission can be readily understood, it ignores the fact that [the appellant's] failure to complete treatment was due to his own action in cancelling his participation in the programme which was booked for 2006. In my opinion, he is [in] no position to complain about the fact that he did not receive any adequate treatment prior to his scheduled date for release.

A further hindrance to [the appellant's] treatment within the prison system has been his continual minimisation and/or denial of his offending behaviour. Up until 2007, the Department of Corrective Services did not have any SOTP available to 'deniers', who were regarded as not being 'treatment ready' (ts 140). It was only between August and December of this year that the department has conducted its first 'Denier's Pilot Programme', and the results of that initiative are still to be evaluated.

These treatment issues aside, if I was to make a supervision order, it would not be feasible for [the appellant] to reside with his father and sister as he did in 2000. In this regard it is impossible to ignore the fact that during his last period in the community, those accommodation arrangements did not prevent [the appellant] from breaching his parole conditions by taking up residence with the fourth and fifth victims. Furthermore, the evidence before me shows that the father's residence is within 25 metres of a children's day care centre.

In view of this situation, a senior Community Corrections officer (Ms V J Court) has made inquiries with appropriate organisations to see what accommodation can be made available to [the appellant]. A suitable 'house or flat' has been identified which would provide [the appellant] with some support from a particular organisation, but would not involve any full-time supervision. Accordingly, these arrangements would not enable

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (129 paragraphs)

ITALIANO -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 116 (2 July 2009)

Parties

Legislation Cited (4)

Cases Cited (8)