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Criminal law - Miscellaneous matters - Dangerous Sexual Offenders Act 2006 - Application for continuing detention order - Preliminary hearing - Expiration of sentence prior to preliminary hearing - Whether respondent should be detained in custody until final hearing

Dangerous Sexual Offenders Act 2006 (WA)

Order that respondent undergo examination by two psychiatrists

Order that respondent be detained in custody until final hearing

Fardon v Attorney General for Queensland [2004] HCA 46

1 BLAXELL J: This is an application under the Dangerous Sexual Offenders Act 2006 (WA) ("the Act") for an order that the respondent be subject to a continuing detention order, or alternatively, a supervision order. The Court is empowered to make these orders because at the date of filing of the application, the respondent was serving a sentence of imprisonment for a serious sexual offence. The respondent's sentence of imprisonment expired on 10 July, but at a preliminary hearing of the application on 11 July 2006 I ordered that:

(1) The final hearing of the application be fixed for 18 and 19 October 2006.

(2) The respondent undergo examination by two psychiatrists for the purposes of them preparing reports as required by s 37 of the Act.

(3) The respondent be detained in custody until 18 October 2006.

These are my reasons for decision in respect of those orders.

The scheme of the Act

2 The Act provides for a system of preventative detention of serious sexual offenders who at the time of their release from imprisonment represent an "unacceptable risk" to the community. In Fardon v Attorney General for Queensland [2004] HCA 46, the High Court upheld the validity of nearly identical legislation in Queensland. At [217] Callinan and Heydon JJ noted that the Queensland Act:

" ... is intended to protect the community from predatory sexual offenders. It is a protective law authorising involuntary detention in the interests of public safety. Its proper characterisation is as a protective rather than a punitive enactment. It is not unique in this respect. Other categories of non-punitive, involuntary detention include: by reason of mental infirmity; public safety concerning chemical, biological and radiological emergencies; migration; indefinite sentencing; contagious diseases and drug treatment."

3 The Act applies to "persons of a particular class", namely offenders serving the last six months of their terms of imprisonment imposed in respect of any "serious sexual offence" (as defined in s 106A of the Evidence Act 1906). The stated objects of the Act are to provide for the detention in custody or the supervision of such persons to ensure adequate protection of the community; and for their continuing control, care or treatment (s 4).

4 To this end, the DPP may file with the court an application for orders under s 14 and s 17(1) in relation to any such offender who might be released from custody within the period of six months after the application is made. The application and any supporting affidavit must be served on the offender within two days after filing, and under s 9 the DPP has the same duty of disclosure as if there was a criminal prosecution.

5 Section 11 requires the court to fix a date for a preliminary hearing, and that date must be within 14 days of the application being filed. The main purpose of the preliminary hearing is for the court to decide whether it is satisfied that there are reasonable grounds for believing that it might find that the offender is a serious danger to the community. Before there can be an ultimate finding that a person is a serious danger to the community, the court has to be satisfied that:

" ... there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence." (s 7(1))

6 The DPP has the onus of satisfying the court as to this, and the court has to be satisfied by "acceptable and cogent evidence" and to "a high degree of probability" (s 7(2)). Furthermore, in deciding whether to find that a person is a serious danger to the community, the court must have regard to ten particular factors as set out in s 7(3) including any report that a psychiatrist prepares pursuant to s 37.

7 If the court is satisfied at the preliminary hearing that there are reasonable grounds for believing that there might be a finding that the offender is a serious danger to the community, it must fix a day for the final hearing of the application. If so satisfied the court must also order that the offender undergo examinations by two psychiatrists named by the court for the purposes of preparing reports to be used on the hearing of the application. In such circumstances the court may also make an order for the continuing detention of the offender if he is not in custody or might otherwise be released from custody before the application is finally decided (s 14).

8 The court has a discretion to decide the preliminary hearing on the papers without any appearance by the offender and without the offender being heard (s 41(2)). The court may also receive in evidence any documentation relevant to the antecedents or criminal record of the offender, the official transcript of any judicial proceedings against the offender for a serious sexual offence, and any relevant material contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind (s 41(3)).

9 Section 37 requires any psychiatrist named by the court (pursuant to s 14) to examine the offender and to prepare an independent report. That report must indicate the psychiatrist's assessment of the level of risk of the offender committing a serious sexual offence if not subject to a continuing detention order or a supervision order, and the reasons for the psychiatrist's assessment.

10 At the final hearing the ordinary rules of evidence apply and the court must hear evidence called by the DPP and given or called by the offender (if the offender elects to give or call such evidence) (s 42). Section 40 provides that proceedings under the Act are to be taken to be criminal proceedings for all purposes (other than of course the standard of proof set by s 7(2)).

11 If at the final hearing the court finds that the offender is a serious danger to the community, it may:

"(a) order that the offender be detained in custody for an indefinite term for control, care or treatment; or

(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order." (a "supervision order")

12 In deciding whether or not to make one of the above orders, "the paramount consideration is to be the need to ensure adequate protection of the community" (s 17(2)).

13 When the court makes a continuing detention order, the Act requires that that order be regularly reviewed (s 28). Such reviews must be carried out annually on the application of the DPP (s 29), or in exceptional circumstances, at any other time on the application of the offender (s 30). On each such review, and unless the court otherwise orders, the offender must be examined by two psychiatrists for the purposes of preparing further reports to be used on the review (s 32). The purpose of each review is for the court to determine whether the offender remains a serious danger to the community and whether or not the continuing detention order should be rescinded (s 33).

14 In respect of any decision made by the court under the Act, the DPP and the offender each have a right of appeal. The appeal is to the Court of Appeal and is by way of rehearing (s 34, s 36).

The applicant's case in support of the application

15 The applicant has filed an affidavit in support of the application sworn by a psychologist and senior forensic consultant with the Offender Services branch of the Department of Corrective Services, Ms Mary-Anne Martin. The affidavit annexes a transcript of the sentencing of the respondent by Chief Judge Hammond in the District Court on 17 March 2000, a history of the respondent's criminal antecedents, and a report from the psychologist and social worker who were responsible for his treatment within the prison system.

16 What these materials show is that when the application was filed the respondent was serving terms totalling 11 years' imprisonment in respect of two offences of sexually penetrating a child under the age of 13 years, one offence of abducting a child, and one offence of assault occasioning bodily harm. Although the respondent was made eligible for parole it was never granted, and after allowing for remission on sentences, he was due for unsupervised release into the community on 10 July 2006.

17 The facts of the offences were very serious. In September 1997 the respondent attended a barbecue at a house in Katanning. While all the adults were outside the house, he went into a bedroom where the 7-year-old complainant and two other young children were playing. He then pushed the complainant onto a bed, held her hands above her head and pulled her pants down. While the other children were watching he digitally penetrated the complainant and also exposed his penis. He threatened to harm the children if they told anyone what had happened.

18 Soon afterwards, the respondent was charged with the offence of sexually penetrating the complainant and was released to bail. It was while he was on bail at Esperance on 5 December 1998 that he committed the further offences. The second complainant was a 2-year-old girl, and at the time the respondent was visiting her mother's house and watching television in the lounge room. While the mother was absent in the kitchen he walked over to the child, picked her up and carried her out of the house. He took her some 300 to 500 metres into thick bushland along a sand track, and on the way removed her T-shirt, nappy and dress. The respondent then took the child some 2 metres off the track and hit her several times about the head and face causing swelling, bruising and abrasions.

19 By this time the mother of the child had raised the alarm and a search of the bush was being conducted by police officers and friends of the family. The respondent was found with the child, and his trousers and underclothing were drawn down to his knees and his genitals were exposed.

20 When the child was later medically examined a small laceration was found in her vagina and the surrounding area was inflamed and swollen. It was clear that the child had been penetrated by some object but the identity of that object was unknown.

21 The respondent pleaded guilty to all of the offences with which he was charged, but subsequently applied to withdraw the pleas in respect of the charges involving the 2-year-old complainant. That application to withdraw the pleas of guilty was refused.

22 The respondent is now 40 years of age. He was born in Gnowangerup and had an unfortunate early childhood because of violence and alcohol abuse within his family. At the age of 6 years he was placed in a mission and thereafter had very little contact with his family. His upbringing is described as one of abandonment, isolation and rejection. From an early age he had a significant problem with substance abuse, and over the years he became a chronic user of methylated spirits. As an adult he was unable to sustain lengthy relationships and developed an "insecure attachment style".

23 Prior to the most recent offences the respondent had a record of convictions which was fairly lengthy but comprised mostly minor offences. The only previous offence of a sexual nature was one for wilful exposure in 1981 when he was 15 years of age.

24 After commencing his term of imprisonment the respondent was assessed for inclusion in the Sex Offender Treatment Programme but was deemed unsuitable because of his stance of denial concerning his offending. Thereafter he was reassessed on an annual basis and in 2001 he expressed a willingness to comply with any treatment programme if there was a prospect of parole. At that stage he was still considered to be unsuitable. When interviewed again in 2003 the respondent continued to deny his offences, but subsequently in the course of a second interview, admitted them. He was then offered inclusion in an Indigenous Sex Offender Treatment Programme but he declined because he would have been the only person participating with child sex convictions.

25 At all material times the respondent was assessed as having considerable treatment needs requiring a high level of intervention. In this regard, he appeared to lack insight into the factors contributing to his sexually deviant behaviour, showed a lack of empathy towards his victims, and was unable or unwilling to control his propensity towards alcohol abuse.

26 The respondent eventually participated in the Intensive Sex Offender Treatment Programme at Casuarina Prison during 2004. The treatment completion report dated 9 December 2004 states that he made minimal gains and still had considerable treatment needs. In particular, he appeared to be unwavering in his distorted attitudes that were supportive of child sexual abuse and seemed to be sexually preoccupied in perceiving females in non-sexual situations as being sexual. He also appeared to have limited self-management skills and coping skills, particularly in the area of impulsivity. His problems with alcohol abuse remained unaddressed. His "static risk level" in accordance with an internationally recognised risk assessment measure placed him in the high risk category of re-offending.

Whether I can be satisfied in terms of s 14

27 The main purpose of the preliminary hearing is to decide (in accordance with s 14) whether I am satisfied that there are reasonable grounds for believing that the court might, under s 7(1) find that the respondent is a serious danger to the community.

28 This is a fairly low hurdle for the applicant to overcome, and it is interesting to note that the equivalent provision in the Queensland Act sets a higher requirement that the court be satisfied that there are "reasonable grounds for believing the prisoner is a serious danger to the community".

29 The decision required to be made on the preliminary hearing is doubly predictive. Firstly, I must determine if I am satisfied that the court "might" make a final finding under s 17 that the respondent is a serious danger to the community. That finding in turn, would involve a prediction of the extent of the risk of the respondent re-offending, and whether or not that risk is "unacceptable".

30 Despite the relatively low threshold of satisfaction that is set by s 14, it is a very significant and serious task that I am required to undertake. The preliminary hearing is the first step in a process which has the potential to involuntarily deprive the respondent of his liberty for an indefinite period. Accordingly, and even though I was entitled to decide the preliminary hearing on the papers, it is highly appropriate that he was given a full opportunity to be heard.

31 The salient features of the facts presently before me are that the respondent committed a serious sexual offence on a 7-year-old girl, and while on bail in respect of that matter, he went on to commit further very serious offences in respect of a 2-year-old girl. In both instances, the offences were committed while parents were in the near vicinity and the respondent was clearly undeterred by the likelihood of discovery, or by the consequences that would flow from that discovery.

32 It is also alleged that while in the prison system the respondent has failed to respond to appropriate treatment for his sexual deviancy, and that he remains at high risk of re-offending in a similar manner. In all of these circumstances, I have no hesitation in coming to the conclusion and being satisfied that the Court might find that the respondent is a serious danger to the community.

33 This being so, I must now order that the respondent undergo examinations by two psychiatrists to be named by the Court for the purpose of preparing the reports required by s 37. The Act does not specify how the Court is to choose the psychiatrists to be named, but is clear from the terms of s 37 that the reports from each must be "independent".

34 It should also be borne in mind that the respondent may wish to engage and call his own psychiatrists as witnesses, and accordingly I need to be careful to preserve my impartiality in the event that there is any conflict in the expert evidence.

35 In these circumstances I have avoided any involvement in the selection of the two psychiatrists to be named by the Court. Instead, I have remained at arm's length and have asked the Principal Registrar of the Court to perform this task.

36 The Principal Registrar has produced the names of two psychiatrists who are willing to undertake the examinations required by the Act, and they are Dr Mark Hall and Dr Bryan Tanney. Counsel for the parties have no objection to the process by which the names were selected, nor to the appointment of those two psychiatrists. Accordingly I now name Drs Hall and Tanney in accordance with s 14(2)(a).

37 I also make the observation that in respect of future applications there may not be many psychiatrists who are willing to undertake examinations under the Act. Whatever the size of the pool of psychiatrists available for this purpose, the court will need to adopt a system of random selection for each case which is fair and transparent.

Whether the respondent should be detained in custody on an interim basis

38 Given my satisfaction in accordance with s 14 I have a discretion to order that the respondent be detained in custody from the expiration of his sentence for the period until the application can be finally heard. In my view there is a flaw in the legislation in that it does not allow in an appropriate case for a respondent to be subject to supervised release during this interim period. Accordingly, I am faced with the stark choice in the present matter of either allowing the respondent to be released without supervision or alternatively depriving him of his liberty on a preventative basis in anticipation of a possible continuing detention order.

39 When the application first came on for hearing, I adjourned it for four days to enable a third possible course to be explored. This was for the respondent to enter into a personal written undertaking to abide by conditions of an intensive supervisory nature with a view to minimising the risk that he might pose to the community.

40 During the course of the adjournment the parties agreed upon a draft undertaking containing numerous and elaborate conditions including the place where the respondent would live, a requirement for him to report regularly to a supervising community corrections officer and for him to avoid various specified places where children might be present. The DPP participated in this exercise on a provisional basis given its primary submission that the respondent should remain in custody.

41 In the end, and after giving the matter careful consideration, I have decided that I should exercise my discretion to order that the respondent be detained in custody until the final hearing of the application. In coming to that decision I have weighed the strength of the applicant's case that the respondent represents an unacceptable risk to the community against the undesirability of depriving the respondent of his liberty pending a final determination being made. I have also had regard to the measures that can be put in place to minimise any potential risk but in my view these are not likely to be effective particularly as there is no formal mechanism for dealing with any breach of the proposed personal undertaking. It also does not help that the respondent has in the past committed eight offences of breach of bail.

42 For these reasons I have ordered that the respondent should continue to be detained in custody from the expiration of his sentence until 18 October 2006.