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[2008] WASC 297
Supreme Court of WA
2008-12-18
Murray J, Dr P, Wheeler JA, Blaxell J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- ITALIANO [2008] WASC 297
BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for a continuing detention order or supervision order - Whether the respondent is a serious danger to the community - Turns on own facts
Finding that the respondent is a serious danger to the community
Order made that respondent be detained in custody for an indefinite term for control, care, and treatment
1 BLAXELL J: This is an application by the Director of Public Prosecutions (WA) (the DPP) pursuant to s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) for a continuing detention order or supervision order in respect of the respondent (Mr Italiano).
2 The application was made on 17 July 2008 at which date Mr Italiano was serving terms of imprisonment totalling 10 years (without parole) for eight serious sexual offences committed on children under the age of 13 years. The sentences expired on 15 October 2008, but the respondent has remained in custody pending the determination of the present application.
3 On 17 July, Murray J made preliminary orders pursuant to s 14 of the Act, including an order that Mr Italiano undergo examinations by the court-appointed psychiatrists, Dr P A Wynn-Owen, and Dr G Wojnarowska. The psychiatrists have subsequently provided reports and also testified at the final hearing of the application. Other evidence at the final hearing has included some 980 pages of transcripts, psychological assessments, records of treatment programmes, and other documents, which were tendered by consent. (The numbered references which follow relate to these materials).
4 Mr Italiano's background circumstances, his history of offending, and the extent to which he has participated in treatment programmes are matters which are largely common ground. The only substantial issues to be determined are the validity of each of the assessments by the court-appointed psychiatrists, whether I can be satisfied that Mr Italiano is a 'serious danger to the community' within the meaning of s 7 of the Act, and if so, which order should be made.
5 Before I can make a finding that Mr Italiano is a serious danger to the community, s 7(1) requires that I be satisfied that there is an unacceptable risk that if not subject to a continuing detention order or supervision order, he would commit a serious sexual offence. 'Serious sexual offence' has the same meaning as in the Evidence Act 1906 (WA), and encompasses offences of that description which carry a maximum penalty of 7 years' imprisonment or more.
6 In Director of Public Prosecutions v Williams [2007] WASCA 206, Wheeler JA (with whom Le Miere AJA agreed) held at [63] that:
[A]n '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.
7 Accordingly, I must undertake a balancing exercise which (amongst other things) has regard to the nature of the risk and the likelihood of the risk coming to fruition, on the one hand, and on the other hand, the serious consequences for the offender if an order is made (Director of Public Prosecutions v GTR [2008] WASCA 187 [27]).
8 Section 7(2) of the Act provides that the DPP has the onus of satisfying me of all matters in s 7(1) by acceptable and cogent evidence, and to a high degree of probability. The words 'high degree of probability' are incapable of further definition, and import more than a finding on the balance of probabilities, but less than a finding of proof beyond reasonable doubt (GTR [28]). In the end I must identify what, if anything, constitutes the risk and makes that risk unacceptable, and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence (GTR [34]).
9 In deciding whether Mr Italiano is a serious danger to the community, I must have regard to the particular matters listed in s 7(3). Those matters include the reports prepared by the court-appointed psychiatrists which contain the assessments of risk required by s 37(2).
10 It is for me to determine what weight should be given to each of those assessments. Ordinarily, they should be given significant weight because the psychiatrists have expertise which I lack and which Parliament considers to be important. However, if the reasons for either psychiatric assessment cannot withstand scrutiny, or if the assessment is based upon mistaken factual assumptions, I am free to give it little weight (GTR [57]). Furthermore, I should bear in mind that:
As well as having difficulties with accuracy, predictions of risk may be seen as providing a veil of science over what is essentially a social and moral decision about the kind of offender who creates the greatest fear within the community. Asking mental health professionals to assess the risk of future harm shifts the burden of deciding what to do with such offenders from the community to clinicians whose primary role lies within the medical model of treatment, rather than within the criminal justice model of punishment and community protection.
(From a paper prepared by Professor B McSherry on behalf of the Sentencing Advisory Council which was referred to by Callaway AP in TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109 in comments approved by the majority in GTR [60] - [62].
11 Although I must scrutinise each psychiatric assessment and give it the weight that I consider appropriate, in the end it is my responsibility alone to determine whether Mr Italiano is a serious danger to the community, and if so, which order should be made.
12 In the event that I do find that Mr Italiano is a serious danger to the community, there is no discretion to refuse to make an order (Williams [68] - [72] and GTR [49]). In determining which of a continuing detention order or a supervision order is appropriate, I should adopt the least restrictive alternative which is compatible with the protection of the public (Williams [79]).
The respondent's background circumstances prior to his offending
13 Mr Italiano was born in Italy in 1946 and emigrated to Australia with his family at the age of five years. He was the oldest of nine children, and received a fairly strict catholic upbringing. In this regard, Mr Italiano's father was a hardworking man who was often away from home due to his employment. The father was also a strong disciplinarian who insisted on a good work ethic within the family. Consequently, Mr Italiano as a child had little time or space to play or to express emotions.
14 Mr Italiano experienced difficulties with his early schooling because of his inability to speak English. He was also subjected to bullying because of his ethnic background. He completed only the first year of high school before ceasing his education at the age of 13 years and taking up a carpentry apprenticeship.
15 Thereafter, and throughout his life, Mr Italiano's main focus was on his work and on other physical activities such as martial arts and boat building. He had a frequently changing work history which included professional shooting, an earthmoving business, and farming.
16 As a teenager, Mr Italiano did not have any girlfriends and did not drink alcohol. At the age of 18, his parents arranged for him to become engaged to a girl whom he had never met. That engagement did not last, and at the age of 19 he met another woman who became his wife one year later. He had his first sexual experience following that marriage.
17 Mr Italiano lived with his wife for a total of 27 years and they produced three children. Although the couple had a normal relationship during the early part of the marriage, there was almost no sexual contact between them during their last 10 years together. The marriage came to an end when Mr Italiano was convicted of his first sexual offence.
18 It is relevant to note that in 1979 Mr Italiano sustained a serious back injury as a result of a motor cycle accident. This injury interfered with his normal work pattern and ultimately required him to accept a disability pension. Nevertheless, he continued to work as hard as he could in various part time handyman positions.
The respondent's history of sexual offending
19 Mr Italiano 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.
20 The relevant background to these charges was that Mr Italiano 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 Mr Italiano 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.
21 Mr Italiano 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).
22 That offence was committed near Carnarvon in late 1992. The circumstances were that the Italiano 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, Mr Italiano 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 Mr Italiano was sentenced some 18 months later, the sentencing judge noted that the effects on the first victim were 'still very bad'.
23 On 20 April 1994, Mr Italiano 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, Mr Italiano 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.
24 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, Mr Italiano and his wife had been very friendly with her parents. The two families sometimes went on holidays together, and Mr Italiano frequently visited the second victim's house (on some occasions when she was home alone).
25 It is clear from the transcript of proceedings that the two pleas of guilty entered by Mr Italiano 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.
26 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 Mr Italiano to his house where his wife was packing for the holiday. While driving to the house, Mr Italiano 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.
27 Some days later while the two families were on the camping holiday near Kalgoorlie, Mr Italiano 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.
28 During the months that followed, Mr Italiano 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.
29 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. Mr Italiano invited the second victim to accompany him in his four wheel drive vehicle on a short trip to collect food from a freezer.
30 While on the return journey, Mr Italiano 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. Mr Italiano 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.
31 Subsequently, Mr Italiano 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 Mr Italiano later made a more specific threat that he would hurt the second victim's family, but this allegation was denied by his counsel).
32 The second offence against the second victim was committed in September 1992. Mr Italiano took the second victim and her brother on a drive in his vehicle to Baldivis. On the way, Mr Italiano 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.
33 When Mr Italiano 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 Mr Italiano (who was reluctant to assist).
34 Thereafter, the second victim hid in her bedroom whenever Mr Italiano visited her family's home. She did not disclose the offences to her parents until Mr Italiano 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, Mr Italiano was sentenced to a total of 7 years' imprisonment for the offences against the second victim and made eligible for parole.
35 In the meantime, Mr Italiano 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).
36 The background to these offences was that the third victim was one of five children in a family with whom Mr Italiano had been friendly over a six month period as a result of them all attending the same church. The first offence was committed in Mr Italiano'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, Mr Italiano once again rubbed her genital area on the outside of her underwear.
37 On 29 January 1998, Mr Italiano 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.
38 After Mr Italiano 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 Mr Italiano and Ms G as a result of regular telephone conversations, and her frequent visits to see him at the prison. When Mr Italiano 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).
39 Ms G encouraged Mr Italiano 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 Mr Italiano 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.
40 All of these offences were committed in the course of (and on the pretext of) Mr Italiano 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.
41 Mr Italiano 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.
The assessment and treatment of the respondent while in prison
42 Within one week of receiving his first sentence of imprisonment in 1994, Mr Italiano was interviewed at Casuarina Prison to determine his attitude towards his offending behaviour and his suitability for the Sex Offender Treatment Programme (SOTP). However, Mr Italiano totally denied responsibility for his offence and indicated that he would be lodging an appeal. Consequently, he was considered to be unsuitable for participation in a programme at that stage.
43 Mr Italiano was reassessed on 31 August 1994, but still continued to deny responsibility for his offending behaviour. However, from about November 1994 there was a change of stance and Mr Italiano sometimes admitted that he was guilty of the offence of which he had been convicted. However, he would later retract this admission and return to his former stance of outright denial. On 8 December 1994 a formal recommendation was made to the Parole Board that Mr Italiano should not be released to parole until he had completed an SOTP.
44 In January 1995 (approximately two months prior to the earliest possible release date) Mr Italiano requested a reassessment of his suitability for a SOTP. When interviewed, he admitted the offence of which he had been convicted and also said that it was preceded by deviant fantasies and deviant arousal that had built up over a period of time. Nevertheless, he blamed the first victim for triggering his deviant fantasies by talking about sexual issues and exposing herself to him. Notwithstanding this very twisted acceptance of responsibility for his offending behaviour, Mr Italiano was recommended for participation in a SOTP. Unfortunately it was not possible to follow through on this recommendation after Mr Italiano was charged with the offences in respect of the second victim. Consequently his parole was continually deferred until his eligibility period expired, and he was ultimately released on 9 April 1996.
45 When Mr Italiano was sentenced on 15 August 1997 for the offences in respect of the second victim, he freely admitted all of his offending until then. His counsel also acknowledged:
A history of him wishing treatment and moving slowly to the point of accepting full responsibility for his offending, but there has been some vacillation. [485]
46 This vacillation continued when Mr Italiano returned to prison for the second time, and in this regard the Senior Programmes Officer of the Sex Offender Treatment Unit reported on 24 October 1997 that:
Mr Italiano accepts responsibility for his current convictions although throughout the assessment interview he continually minimised and justified his offending behaviour placing blame upon the victim. Although Mr Italiano attempted to conceal his sexual interest in female children, his endeavour to do so further revealed that his deviant behaviour extends far beyond what he is willing to acknowledge. Mr Italiano has little insight into the consequences of his offending behaviour or the possible long and short term effects his offending may have had on his victims. He displayed no remorse for his victims justifying his behaviour by stating, 'she was being abused anyway.'
Notwithstanding that Mr Italiano was in borderline denial, and that his desire for treatment was not considered genuine, he was waitlisted for participation in the Intensive Sex Offender Treatment Programme. The adoption of this recommendation was delayed by the fact that approximately three months later, Mr Italiano was convicted of the offences in respect of the third victim. Nevertheless, he commenced an intensive SOTP at Riverbank Prison in August 1999 and presented as eager to understand what had motivated him to offend. During the early stages of treatment his vacillation continued in that he denied the majority of his offending and contended that he was the innocent victim of misunderstanding as well as sexually inappropriate behaviours perpetrated by his victims. However, by the time the intensive SOTP was completed in May 2000, Mr Italiano appeared to have gained a better understanding of the factors which had triggered his offending behaviour. These factors included his limited sexual development during adolescence and early adulthood, his limited sexual knowledge, the loss of his only sexual outlet within his marriage, and the changes in lifestyle brought about by his back injury. The combination of these factors had caused Mr Italiano:
[T]o focus on and distort the actions of pubescent and prepubescent females who presented as a safe and non-threatening sexual option for him. As described by Mr Italiano, he became quite obsessive about sex with fantasies of young girls dominating his life to the extent of him leaving the city to seek solace and distance via a period of shooting feral goats. However, once he returned, and was again within proximity of young girls, he experienced fantasies as being beyond his control. (598) - (599)
47 At the time of the intensive SOTP, Mr Italiano had commenced his relationship with Ms G. The facilitators of the programme were aware of this relationship and in their final report dated 12 June 2000, expressed concern that Mr Italiano's potential for reoffending was linked to his tendency to attach to needy people, typically women, or families. Their report went on to state:
Of particular concern is Mr Italiano's current relationship which satisfies all the factors outlined above. Consequently, he has been repeatedly challenged by the group and the facilitators regarding the similarities between his current relationship and the relationship he had with the victims' families. Mr Italiano's approach to his relationship highlights both the treatment gains he has achieved and the limitations or deficits remaining with regard to his comprehension and capacity to abstain from situations that present a high risk of reoffence. Mr Italiano's partner has four children, two of which are pre-pubescent females. From Mr Italiano's disclosures regarding his role in the family thus far, it would appear that his partner was discussing issues associated with her daughter's menstruation difficulties etc. Although unclear and based solely on Mr Italiano's self report, such discussions raise concern about appropriate boundary keeping within this family and bear a distinct similarity to conversation topics initiated by Mr Italiano with his victims. ...
Unfortunately, his current relationship was established prior to the program and Mr Italiano's gains are not sufficiently developed at this stage to extricate himself fully from a relationship he recognises as being contrary to his needs and direction for the future. Consequently, external controls such as Family and Children's Services intervention and Parole conditions, are strongly recommended and have been initiated. Mr Italiano appears relieved that external controls are being implemented which, we believe, reflects his recognition of the limitations of his skills in his current situation. (599) - (600)
Mr Italiano was released to parole very soon afterwards, and it was a condition of his parole that he regularly attend a maintenance programme in respect of his SOTP. Throughout his attendances at the maintenance programme, Mr Italiano maintained that he was residing with his father and was only a visitor to Ms G's house. He was also adamant that he did not have any unsupervised contact with Ms G's children. However, on 16 October 2000, Mr Italiano informed the relevant officer that he had reoffended over the previous three weeks by fondling the fourth victim's vagina. Mr Italiano placed some of the responsibility for this situation on the fourth victim (because she failed to stop him offending against her), and also blamed Ms G for not being more vigilant with her daughters. Mr Italiano still held these views when interviewed for the purposes of a psychological assessment prior to sentence for the offences committed on the fourth victim:
Mr Italiano externalised blame and, therefore placed responsibility for his behaviour elsewhere throughout the interview. In relation to holding the victim responsible, he said that she requested that he rub her groin region, that she and her younger sister would enter the bedroom and walk around the house naked and would sit on the bedroom floor naked when previously told not to. He claims he had no sexually deviant fantasies or tendencies and suggests the victims were responsible for creating his sexual thoughts and urges, culminating in him acting out. In relation to the victim's mother, he said that he would have expected her to be more protective. (868)
48 In light of these and other factors in Mr Italiano's presentation, the psychologist commented in her report dated 18 March 2002 that:
Overall, Mr Italiano's treatment needs are great, primarily incorporating the need to accept responsibility and a level of acceptance that change is necessary and to be carried out and maintained by himself. In addition, addressing issues surrounding his lack of victim empathy, emotional attachment and expression and knowledge regarding gender role identification would be potentially beneficial. The assessment revealed a man whose general personality and functioning comprises rigidity, the strength of which would perhaps be exacerbated by his years. The implications of the above in relation to treatment outcome are not favourable as his presenting personality characteristics incorporate difficulty in learning from mistakes, particularly given the strength placed in denying and justifying his deviant behaviour over time. In addition, testing results suggest that Mr Italiano is not motivated for treatment and does not consider his behaviour to warrant this. Unless experiencing subjective distress, motivation to commit to and engage fully in treatment is questionable. (872)
49 During his most recent period of imprisonment, Mr Italiano has not completed any sex offender specific treatment programme. 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 Mr Italiano 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 Mr Italiano was reassessed and recommended for a sex offender high intensity programme. However, such a programme was not available prior to the scheduled date for Mr Italiano's release from prison.
50 The voluntary faith-based programme which Mr Italiano 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.
51 Mr Italiano 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 Mr Italiano, as well as two facilitators (one of whom was the solicitor and former president of the Prison Fellowship, Mr Michael Cockram).
52 Since completing the STP, Mr Italiano 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 Mr Italiano, 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.
Respondent's current attitudes towards his offending
53 It is Mr Cockram's evidence that the Sycamore Tree Programme appeared to have a significant effect on Mr Italiano's attitude towards his offending. In this regard there was a 'memorable impact' at one particular session when Mr Italiano 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, Mr Italiano has consistently expressed (non-specific) feelings of remorse about his victims, and Mr Cockram has no reason to doubt the sincerity of those statements.
54 However, Mr Cockram's impressions are contradicted by the psychiatrists who interviewed Mr Italiano for the purposes of the reports required by s 37 of the Act. In this regard, it is Dr Wojnarowska's evidence that Mr Italiano 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'.
55 To the limited extent that Mr Italiano 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.
56 When interviewed by Dr Wynn-Owen, Mr Italiano 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.
57 With regard to the first victim, Mr Italiano 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'.
58 Furthermore, Mr Italiano 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'.
59 When preparing the reports required by s 37 of the Act, each psychiatrist reviewed all of the materials (which have been tendered at the final hearing by consent), and conducted interviews with Mr Italiano for approximately six hours. The psychiatrists were cross-examined as to the extent of communications which passed between them, but I am satisfied that each of their reports was prepared independently and without knowledge of the particular opinions of the other.
60 In Dr Wojnarowska's report, there is a commentary on Mr Italiano's cycle of offending. In that regard, and in respect of his choice of victims:
Mr Italiano has consistently offended against young females with his first victim being a 14 year [old] post-pubescent girl, while the subsequent ones were much younger, aged 11 to 9. The first sexual offence occurred after approximately two years of a friendship between Mr Italiano and the victims' parents'. In the [first victim's case], it was approximately one year before he started offending, while in the [third, fourth and fifth victims'] cases it was a matter of several months. All of the victims have been known to Mr Italiano and it appears that the offences were preceded at least to a degree by a build up of fantasies. Mr Italiano does not have a history of approaching a child who is a stranger. (926 - 926)
Dr Wojnarowska has also expressed the following opinion concerning the extent of Mr Italiano's coercion and grooming of his victims:
Mr Italiano developed an effective way of grooming the families of the victims. It is possible that the friendship with the parent's of his first victim ... was genuine, and initially Mr Italiano did not plan to offend. His life circumstances at that time (relationship difficulties and unemployment), destabilised him to the point that he started to act on his deviant sexual fantasies. It would be very unlikely if those fantasies appeared de novo at the age of 46 when he offended for the first time. The further victims were more carefully chosen with Mr Italiano targeting vulnerable families who were initially grateful for his willingness to help. It is of note that on at least one occasion [second victim], Mr Italiano threatened the girl to harm her family if she disclosed his behaviour, while the others were just asked to keep a secret. (926)
With regard to Mr Italiano's current attitudes towards his offending, it is Dr Wojnarowska's assessment that:
He did not appear to be able to identify himself as an offender who committed crimes against specific victims. Instead, he has been using diversion techniques such as producing paintings to donate money to the victims of crime. These actions, irrespective of their superficially human appearance, in Mr Italiano's case, signify his difficulty in facing his victims' suffering and in facing his emotional responsibility. (927)
61 Her report then sets out a psychiatric diagnosis which includes the following 'diagnostic formulation':
Mr Italiano meets the criteria for paedophilia as evident by his pervasive pattern of re-offending. It is highly likely that the deviant sexual interest was present for a long time before he started offending. The marriage and employment provided him at the time with the necessary structure and outlet for his drives. The collapse of this structure became a destabilising factor, which when the opportunity arrived, (friendship with[ first victim]), disinhibited him and led to offending. In the author's opinion, further offending was pre-meditated and planned as the motivating factor has been his 'discovered' sexual preference towards female children. Mr Italiano's later relationship with an adult woman (Miss G) did not provide him with the same degree of containment. He re-offended despite having a frequent and satisfying sexual life. Mr Italiano's narcissistic traits have proved to hamper his treatment and continue to prevent him from facing his deviant behaviour and therefore truly admitting responsibility. In psychodynamic terms, Mr Italiano uses quite immature defence mechanisms such as denial to protect himself from devastating reality.
The report then expresses Dr Wojnarowska's assessment of the level of risk of Mr Italiano committing a serious sexual offence if not subject to a continuing detention order or a supervision order. When making that assessment, Dr Wojnarowska utilised actuarial instruments and structured clinical guides. The actuarial instruments used were the STATIC-99 and Hare Psychopathy Check-List (HPCL-R). The former is based upon mainly static risk factors which are unchangeable. The latter assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The structural clinical guide utilised by Dr Wojnarowska was the Risk Sexual Violence Protocol (RSVP).
62 With the STATIC-99, Dr Wojnarowska obtained a score of 7 out of 12 for Mr Italiano which indicated that he was within the 90-100 percentile range which has a four in 10 chance of sexual reoffending within five years. (However, during cross-examination Dr Wojnarowska acknowledged an error in her scoring which should have been six instead of seven. Nevertheless, this error did not reduce the predicted degree of risk of reoffending).
63 Mr Italiano's score on the HPCL-R was less than would allow him to be considered a psychopath. However, he had a relatively high score on factors which measure features such as shallow affect, lack of empathy, failure to accept responsibility and being manipulative. It is Dr Wojnarowska's opinion that these personality characteristics are not readily changeable even with the appropriate therapies (ts 38).
64 Dr Wojnarowska's structured clinical assessment based upon the RSVP resulted in an assessment which included the following comments in her report:
Dr Wojnarowska's report concludes with the following comments and recommendations:
RISK SCENARIOS
Mr Italiano is likely to commit similar offences to the ones that he did in the past. The likely victim will be a female child, known to him through the families which he befriended. Mr Italiano's behaviour will be motivated to obtain sexual gratification and possibly some degree of intimacy that he has been lacking in his life. The harm to the victim will be both psychological and physical. Mr Italiano is likely to offend on the first opportunity of being in the close proximity to an unsupervised child that is known to him. He is not likely to abduct a child. There would be no specific warning signs except for attempted grooming.
SUMMARY
In summary, Mr Italiano's offending has been motivated predominantly by his paedophilic interest and to some degree by his personality deficiencies. The destabilising factor was strongly present in the first offence and included marital disharmony and a lack of employment opportunities due to the chronic back pain. The disinhibiting factor for Mr Italiano is he being in the presence of a pre-pubertal, female child, which he befriended.
In the author's opinion, Mr Italiano's risk of re-offending is currently very high, if not subjected to the Continuous Detention Order.
RECOMMENDATIONS
Mr Italiano should undergo Intensive Sex Offender Treatment Program. This type of program is only available in a prison setting and there are no alternatives to it in the community. The maintenance program, which was previously offered to Mr Italiano is of a lesser frequency and intensity and offers very limited supervision. It is possible that on the conclusion of his Intensive Sex Offender Treatment Program, he may be found suitable for pharmacological (antilibidinal) treatment, which has not been discussed at this point in time. (934 - 935)
65 Dr Wynn-Owen's report comments on Mr Italiano's 'personality style' in terms of subjective and objective factors. Subjectively, Mr Italiano regards himself as a good person and is proud of his hard work and achievements (most recently in raising funds for the Sycamore Tree Project).
66 However, objectively, Mr Italiano's history suggests a limited capacity to understand and recognise emotion. His sexual offending and subsequent denial also suggests a capacity to meet his own needs with disregard and lack of empathy for his victim. He has also been deceitful and demonstrated a lack of remorse. In Dr Wynn-Owen's opinion, this pattern is suggestive of a 'Cluster B personality disorder' which may help explain why he is able to deny offences of which he has been convicted. In this regard, it was Dr Wynn-Owen's oral evidence that:
It leaves me concerned about the level of self-awareness in relation to his offending and his ability to compartmentalise his offending from his other ostensibly good behaviours and to see only those things about himself which are not related to offending.
67 Dr Wynn-Owen's psychiatric diagnosis categorises Mr Italiano's paedophilia as a personality disorder rather than a clinical disorder (as diagnosed by Dr Wojnarowska). In his oral evidence, Dr Wynn-Owen has explained that he does not consider paedophilia to be a 'treatable' clinical condition, but sees it as 'part of a person's make-up'. He further explained that there is a current debate within the psychiatric fraternity concerning this issue.
68 When carrying out the risk assessment required by s 37 of the Act, Dr Wynn-Owen has also relied upon the RSVP, STATIC-99, and PCL-R instruments. The report on his review utilising the RSVP includes the following comments:
In addition to failure to benefit from the SOTP, Mr Italiano did not comply with parole conditions in relation to residence, and put himself at risk.
Dr Wynn-Owen's review utilising the RSVP, produced the following case management recommendations in his report:
Monitoring
Mr Italiano's self report should not be relied on, supervision will need to include contact with those with whom Mr Italiano 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 Mr Italiano 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
Mr Italiano 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 Mr Italiano'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 Mr Italiano's current involvement in the Sycamore Tree Project. Mr Italiano 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 Italiano to secure access to new victims. Continued involvement may serve to undermine progress (and engagement) in SOTP, Mr Italiano 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
Mr Italiano is not in my opinion currently appropriate for community supervision, he should be required to complete an intensive SOTP above prior to release. (953 - 954)
69 Dr Wynn-Owen's scoring of Mr Italiano's risk factors under the STATIC-99 instrument produced a score of 7 out of 12. However, during cross-examination, Dr Wynn-Owen also acknowledged an error in his scoring which should have been 6 rather than 7. Although this still placed Mr Italiano within the 'high risk' group, the lower score reduced the level of confidence that he was definitely within this category.
70 Mr Italiano scored 16 (out of 40) on the PCL-L Psychopathy Check-List, which was considerably less than that which would identify him as a psychopath. Nevertheless, Mr Italiano scored highly in respect of interpersonal and affective characteristics which are associated with a tendency towards selfish, callous and remorseless use of others.
71 Dr Wynn-Owen's report concludes with a summary statement that Mr Italiano continues to present a high risk of sexual offending. His long-standing denial and distortion of his offending, his rigid personality, inability to disclose or to communicate on the emotional level and his view that he has been mistreated make him a very poor candidate for treatment. Furthermore, his breaches of bail (in respect of non-sexual offending in the 1960s), and sexual offending during court processes addressing other sexual offences and while attending a community sex offender maintenance programme, suggest a poor response to supervision.
72 As noted, both psychiatrists have reported that Mr Italiano denies that he has any current sexual fantasies or significant libido. Neither psychiatrist accepts these assertions, and they consider that his self-reporting on these matters is unreliable. Consequently, there is no reliable evidence of the level of Mr Italiano's present sexual drive and thinking.
The weight to be given to each psychiatrist's report
73 Section 7(3) of the Act requires me to have regard (amongst other things) to the report that each psychiatrist has prepared pursuant to s 37. Ordinarily, each report will be given significant weight, but if the reasons for either of the assessments do not withstand scrutiny, or if it is based upon mistaken factual assumptions, I am free to give it little weight. In this regard, I am very much assisted by the oral evidence of the psychiatrists which elaborated on their reports, and has allowed their opinions to be tested by the rigours of cross-examination.
74 Both of the psychiatrists have largely relied upon the same instruments or tools in arriving at their respective assessments. These tools (the STATIC-99, PCL-R, and RSVP) have been the subject of extensive expert evidence in other cases, and are now familiar territory for the court.
75 In Director of Public Prosecutions v Moolarvie [2008] WASC 37 [54] - [59] I reviewed some of the commentaries on these tools in single judge decisions of the court. On the basis of the expert evidence in that case, I also expressed the view that the results of the STATIC-99 on their own, had very little weight, but that the RSVP was a relatively sophisticated instrument which was carefully structured and seemed to address all conceivable risk factors relevant to the assessment required by s 38. In light of the expert evidence in the present case, I continue to hold this view.
76 In that regard, the limited utility of the STATIC-99 has been further demonstrated by the differing errors made by Drs Wojnarowska and Wynn-Owen when arriving at their scores for Mr Italiano. The RSVP on the other hand provides a structured method for clinically assessing the risk of reoffending, and it takes account of relevant static factors. This instrument mandates a disciplined approach to what would otherwise be a very subjective clinical assessment, and it minimises the inevitable difficulties in predicting the future risk. Furthermore, the RSVP requires a reasoned analysis of the psychiatrist's conclusions as to the particular factors said to contribute to the risk. The transparency of this process obviously assists the court in scrutinising the validity of the psychiatrist's overall assessment.
77 Both psychiatrists have reached the same assessment that Mr Italiano is at high risk of committing a serious sexual offence if not subject to a continuing detention order or a supervision order. (Dr Wojnarowska's assessment is that it is a 'very high' risk). They have each come to that same assessment for separate but substantially overlapping reasons.
78 After carefully scrutinising each psychiatrist's report, I am unable to discern any factual errors other than those made in respect of the STATIC-99 scoring. In my opinion, those errors were not significant, and self-evidently did not impact upon the assessments made in accordance with the RSVP.
79 Furthermore, the substantive opinions and conclusions reached by each psychiatrist are consistent with the undisputed facts as to Mr Italiano's cycle of offending, his lack of treatment gains, and his current attitudes towards his victims. From the lay point of view they also accord with common sense. For all of these reasons, I consider that each psychiatrist's assessment of risk should be given significant weight.
Whether Mr Italiano is a serious danger to the community
80 I now make the following observations and findings of fact concerning the matters to which I must to have regard pursuant to s 7(3) of the Act:
(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. Mr Italiano 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 Mr Italiano being treated while in prison. The reports of these assessments show that Mr Italiano 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 Mr Italiano'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 Mr Italiano'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. Mr Italiano 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) Mr Italiano's participation in the Intensive Sex Offender Treatment Programme 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 Mr Italiano 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, Mr Italiano's current attitudes towards his offending are essentially the same as before.
(g) Mr Italiano 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 Mr Italiano 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 Mr Italiano (as well as the parents themselves, who are potential secondary victims). Given Mr Italiano'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 Mr Italiano'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.
81 To the extent that the above factual findings are not common ground, I consider that they are established by acceptable and cogent evidence. I also consider that a fair and objective assessment of all of these matters leads to the inevitable conclusion that there is a strong likelihood that Mr Italiano, in his present state, would commit a serious sexual offence against a young female child if he was given the opportunity. When that likelihood is weighed against the consequences of the finding I am about to make, I am satisfied to a high degree of probability that there is an unacceptable risk that Mr Italiano would commit a serious sexual offence if not subject to a continuing detention order or a supervision order.
82 I accordingly find (pursuant to s 7 of the Act) that Mr Italiano is a serious danger to the community.
Whether there should be a continuing detention order or a supervision order
83 Mr Italiano will continue to be a serious danger to the community until his propensity to commit sexual offences against young female children is successfully treated. The evidence establishes that the only suitable treatment for Mr Italiano is an Intensive Sex Offenders Treatment Programme as conducted by the Department of Corrective Services. At the present time this type of programme only exists within the prison system, and it is not available in the outside community.
84 I have heard evidence from Tarmala Caple, a forensic psychologist registrar with the Department as to the reasons why there is no community-based Intensive Sex Offender Treatment Programme. According to Ms Caple:
One of the things with the community is the people that have been convicted of sexual offences in the community usually don't have such a long history of sexual offences. Most people who are recidivist sexual offenders and have the more serious type of sexual offences get prison sentences. So when we have people in the community, they work - a lot of people work or have other commitments and that's why the community programs aren't as intensive. They're often one day a week for two and a half hours. They used to go for between, sort of, five to six months. The program has now been extended to nine months, but the content isn't as intensive and the therapeutic process isn't intensive either, because most people don't have the serious history of sexual offending as the people who are in prison do.
Ms Caple has also explained that it is a requirement for an Intensive SOTP that the participants transfer to a special live-in unit at either Casuarina or Bunbury Prisons for a period of six months. During each week of that six months:
It's three full days of in group time and there's also homework that is required. Obviously for people who don't have good literacy skills, there's obviously assistance that can be provided. People will have journals, they'll have work sheets, and people are required to go away into their cells and to think about the exercises and discussions that they're having in the group and to come back and to provide responses to the questions that they've been asked and they've been posed to think about. So it's not just about coming in and sitting in a seat for three days in a group setting, but also going away and thinking about your life, thinking about your history, thinking about your offending behaviour. So it's a very emotionally exhausting process as well.
85 It is submitted on behalf of Mr Italiano 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 respondent'. Although the rationale of this submission can be readily understood, it ignores the fact that Mr Italiano'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 no position to complain about the fact that he did not receive any adequate treatment prior to his scheduled date for release.
86 A further hindrance to Mr Italiano'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.
87 These treatment issues aside, if I was to make a supervision order, it would not be feasible for Mr Italiano 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 Mr Italiano 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.
88 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 Mr Italiano. A suitable 'house or flat' has been identified which would provide Mr Italiano with some support from a particular organisation, but would not involve any full-time supervision. Accordingly, these arrangements would not enable any monitoring of the people that Mr Italiano meets, or prevent him from coming into contact with young families.
89 Having considered the matter carefully, I am unable to devise any viable conditions of a supervision order which would provide adequate protection to the community from Mr Italiano. For all of the above reasons, I have come to the conclusion that the only appropriate order is that he be detained in custody for an indefinite term for control, care and treatment.
(2006) 14 VR 109