Supreme Court of WA|2010-12-23|Before: Mr J, Heenan J

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BROWN [2010] WASC 405 (23 December 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BROWN [2010] WASC 405

HEARD : 24 & 25 JUNE, 25 AUGUST & 28 OCTOBER 2010

MATTER : Sections 8, 14 and 17(1) of the Dangerous Sexual Offenders Act 2006 (WA)

BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Alleged dangerous sexual offender - Application for indefinite detention following completion of sentence - Psychiatric evidence - Possibility for supervised residence in the community - Serious danger to the community - Response to prison based sexual aversion programmes - Possibility of supervision order

Respondent : Mr P F Tehan QC and Mr A P Tehan (on 24 - 25 June) Mr C A Boyce and Mr A P Tehan (on 25 August and 28 October)

Director of Public Prosecutions (WA) v Allen [2009] WASC 360

Director of Public Prosecutions (WA) v Comeagain [2008] WASC 235

Director of Public Prosecutions (WA) v Decke [2009] WASC 312

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307

Director of Public Prosecutions (WA) v Narkle [2010] WASC 7

Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297

Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575

Italiano v The State of Western Australia [2009] WASCA 116

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

The State of Western Australia v Latimer [2006] WASC 235

TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109

1 EM HEENAN J: By application dated 27 April 2010 the Director of Public Prosecutions for Western Australia (the DPP) has sought orders under s 14 and s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) in relation to Alwyn Wayne Brown, the respondent, pursuant to s 8 of the Act. In short, the applicant submits that the court should make an order under s 17(1)(a) that the respondent be detained in custody for an indefinite term for control, care or treatment (an indefinite detention order); alternatively, the applicant submits that an order under s 17(1)(b) should be made that, for a specified period, the respondent be subject to a conditional supervision order (supervision order), the details of which were put forward in the course of submissions and which are mentioned later in these reasons.

2 By contrast, the respondent submitted, by his counsel, that the evidence does not establish to the degree required by law that either an indefinite detention order or a supervision order should be made; and, alternatively, that, if contrary to these submissions, the court were to find that the respondent is a serious danger to the community, a supervision order rather than an indefinite detention order should be made.

3 A preliminary hearing as required by s 11 and s 14 of the Act took place before McKechnie J on 13 May 2010. On the evidence then before the court his Honour was satisfied that there were reasonable grounds for believing that the court might, under s 7(1), find that the respondent is a serious danger to the community and, accordingly, a date was fixed for the hearing of the application for a Division 2 order. Also, after that preliminary hearing, McKechnie J, while making other orders, also ordered and directed that:

(2) the respondent undergo examinations by two psychiatrists, namely Dr Bryan Tanney and Dr Sam Febbo, for the purposes of preparing the reports as required by s 37 of the Act that are to be used on the hearing of the application for the Division 2 order;

...

(4) the two psychiatrists...liaise with the Department of Corrective Services as to a management plan (if appropriate) for the respondent to be supervised in the community;

(5) pursuant to s 122 of the Criminal Investigation Act 2006, the two psychiatrists may be supplied with and may view any audio-visual recordings of interviews with the respondent, or transcripts of the same, for the purpose of preparing their reports;

(6) the respondent's current anticipated release date being 26 June 2010, the question of whether the respondent ought to be detained in custody until the application for a Division 2 order is heard and determined, pursuant to s 14(2)(b) of the Act be adjourned sine die.

4 The two appointed psychiatrists duly examined the respondent and prepared detailed reports which have been received and which were the subject of further evidence in the course of the hearing during the evidence-in-chief and the cross-examination of each of those two specialists. The Division 2 hearing commenced on 24 June 2010 and proceeded on 25 June 2010. In the course of that hearing it became evident that more evidence about possible suitable accommodation for the respondent, if he were to be subject to a supervision order, was needed and so the respondent's counsel sought an adjournment to allow that issue to be more fully investigated in co-operation with the various authorities. For that reason, the hearing was adjourned until 25 August 2010.

5 By 25 June 2010 it had been become apparent that no decision on the application would be possible before 26 June 2010, the date when the respondent was due to be released from custody. Accordingly, and without opposition on behalf of respondent, I ordered that pursuant to s 14(2)(b) of the Act the respondent's release date should be extended by 60 days, meaning that he was not eligible for release on 26 June 2010.

6 The application came on for hearing again on 25 August 2010. However, on that date counsel for the respondent tendered an affidavit sworn on 19 August 2010 in support of his case that suitable accommodation for the respondent, to enable his adequate management in the community under a supervision order, was available and specifying the proposed arrangements. Counsel for the respondent, however, acknowledged that if this affidavit were to be considered it would be necessary for the Department of Corrective Services to make its own assessment of the address proposed for the residence of the respondent and the arrangements for his supervision, and that this would, inevitably, take further time. In the result, and at the request of the respondent, the proceedings were again adjourned until 28 October 2010 to allow investigation of the proposed accommodation arrangements.

7 In view of this development, and again without opposition, I extended the non-release order until 29 October 2010 with liberty to apply to vary or to discharge that order.

8 The next, and third, hearing occurred on 28 October 2010, when evidence was adduced about proposed accommodation and supervision arrangements for the respondent in the community. On that occasion evidence was also given on behalf of the applicant in relation to those proposals which, essentially, was to the effect that the proposed accommodation would not be suitable and that residence of the respondent at the proposed address would constitute an unacceptable risk to the community. After that evidence had been taken, final submissions were made by counsel, including written submissions, and I thereupon reserved my decision. A further extension of the period of detention was then made, without objection, until 7 December 2010 and, because it has not been possible for this decision to be given by that date, it has been extended further, until 23 December 2010.

The respondent's convictions and present periods of imprisonment

9 Alwyn Wayne Brown was born on 8 July 1970 or 8 July 1971 in Mungindi in New South Wales, the third in a family of eight children. At the age of two he and four of his siblings went into foster care but he was reunited with his family at the age of 15. He attended school in Sydney, leaving halfway through year 10, and between the ages of 16 and 20 he undertook work in the areas of shearing, cotton and fencing, and then at the age of 21 completed a screen-printing apprenticeship over four years. From then on, he ceased employment.

10 The respondent's criminal record dates back to 1987 when he was a juvenile. It includes multiple convictions for breaking and entering, stealing, assault, resisting arrest, malicious damage, breach of recognisance, assault occasioning actual bodily harm, and failing to appear, and it includes convictions in New South Wales for wilful and obscene exposure, obscene exposure, and in Victoria for wilful and obscene exposure, and indecent acts. In Western Australia he has been convicted of attempted sexual penetration of a child, breach of a suspended imprisonment order and detaining another with intent to cause detriment and sexual penetration of a child under 13 years.

11 For present purposes, it is important to focus on convictions of the respondent on indictment in this State leading to sentences of imprisonment. It is in respect of these that he was still serving his sentence of imprisonment when this application was instituted.

12 The first offences charged against the respondent by indictment in this State were that:

(1) on 30 July 1999, at Broome, Alwyn Wayne Brown, with intent to deprive any parent, guardian or other person who had the lawful care or charge of ABC, a child under the age of 16 years, of the possession of such child, forcibly took or enticed away ABC (a female child); and

(2) further, that on the same date and at the same place, Alwyn Wayne Brown attempted sexually to penetrate ABC, a child (girl) under the age of 13 years, by attempting to penetrate her vagina with his fingers.

13 Brown pleaded guilty to those charges before Blaxell DCJ (as his Honour then was) in the District Court of Western Australia sitting at Broome on 6 October 1999. After hearing submissions and receiving a pre-sentence report in relation to the offender, Blaxell DCJ imposed sentences of imprisonment upon the respondent on 8 October 1999. For the first count in the indictment Brown was sentenced to an immediate term of imprisonment of 3 years. On the second count, for what his Honour considered to be the more serious offence, Brown was sentenced to an immediate term of 6 years' imprisonment. Blaxell DCJ ordered that these two terms should be concurrent but made the respondent eligible for parole in respect of each sentence. Both terms of imprisonment were backdated to take effect from 1 August 1999. His Honour also directed that earlier terms of imprisonment imposed in 1999 for other offences which had been suspended should be served.

14 This reference to an earlier term of imprisonment was to a sentence of 12 months' imprisonment suspended for two years imposed on the respondent in the Broome Court of Petty Sessions on 9 February 1999. That sentence was imposed for two convictions of committing an indecent act which involved Brown deliberately masturbating in front of women on two separate occasions. At the time he claimed that he could not recall these offences clearly because he had been affected by alcohol and cannabis at the time.

15 The details of the facts leading to the commission of the offences in Broome on 30 July 1999 were not contested. The facts were supported by the depositions in the brief and the following outline comes from the summary given by Blaxell DCJ during the course of sentencing:

On the evening of 30 July 1999 Brown went to a hostel in Paddy Court, Broome. There he spoke to a little six-year-old girl and, having talked to her, he enticed her into some adjacent bushland. The girl became upset and began crying. He then placed his hand over her mouth and took her to beyond a fence where he removed her clothing. At the time he was dressed only in a pair of shorts. He removed these shorts and got on top of the child. He then attempted to penetrate her vagina with his finger but this did not succeed because he was disturbed by the girl's father who, with a group of other people, were searching for her. At this point, Brown picked the girl up and threw her over a fence and jumped over himself. In the course of this he slapped the girl on the face and pulled her hair, again putting his hand over her mouth. She kept on telling him that she wanted to go home and he threatened to slap her again. Eventually, he put her clothes back on and walked her back towards the hostel and released her. Subsequently, he was located by the girl's father, who beat him up, as a result of which he was admitted to the Broome Hospital, where he was arrested by the police and charged with these offences.

16 Brown was later convicted of two more indictable offences following his pleas of guilty in the District Court of Western Australia on 11 June 2004. These offences were that:

(1) on 26 December 2003, at Morley, Alwyn Wayne Brown unlawfully detained DEF; and

(2) further, that on the same date and at the same place, Alwyn Wayne Brown, sexually penetrated DEF, a child (girl) under the age of 13 years by inserting his penis into her mouth.

17 For those convictions, Kennedy CJDC imposed two sentences of immediate imprisonment, each of 2 years 3 months, and directed these should be cumulative, making a total of 4 years 6 months' imprisonment. The sentences were ordered to take effect as from 27 December 2003, and directed that the respondent should be eligible for parole under each sentence.

18 The facts of these offences, as established in the brief for the prosecution and sentence, and accepted by her Honour, were that on the evening of 25 December 2003 Brown met the complainant, a 7-year-old girl, and her 10-year-old female friend in the street near her home by chance. The respondent showed pornographic images from a magazine to both girls before returning to his temporary lodgings in Columbia Way, Beechboro. On the next day, 26 December 2003, Brown again met the 7-year-old girl and her friend at a park in Morley and asked for something to drink. The little girls left and returned a short time later with water. The victim's friend rode her bike to another part of the park whilst the victim went up to Brown to give him the water. At this point, Brown grabbed the 7-year-old girl by the waist and dragged her into some nearby bushes, where he threw her on the ground, removed his penis from his shorts, and demanded that she suck his penis. The little girl, fearing for her life, complied with his demand for a few seconds before he ran from the scene. Both the victim and her young friend ran back to their home. At about 4.00 pm that day, as a result of information received, police attended at a bus stop on Crimea Street, Morley, where Brown was apprehended. He was taken to the major incident group, where he participated in a video record of interview and admitted the offences. The victim was a 7-year-old girl of slight build. Brown remained in custody for those offences from his arrest on 31 December 2003 until he was sentenced on 11 June 2004.

19 Brown was next convicted of four offences on indictment in the District Court of Western Australia upon his pleas of guilty on 26 July 2007. The charges before the court on that occasion were that:

(1) on 1 November 2003, at Bedford, Alwyn Wayne Brown unlawfully detained GHI;

(2) on the same date and at the same place, Alwyn Wayne Brown unlawfully detained JKL;

(3) on the same date and at the same place, Alwyn Wayne Brown indecently dealt with GHI, a child (girl) under the age of 13 years, by masturbating in front of her;

(4) on the same date and at the same place, Alwyn Wayne Brown indecently dealt with JKL, a child (girl) under the age of 13 years, by masturbating in front of her.

20 After receiving those pleas of guilty and hearing submissions in relation to sentence, Kennedy CJDC reserved her decision upon the sentencing until the following day, 27 July 2007. On the following day, her Honour sentenced Brown to four terms, each of 2 years' imprisonment, each to be served concurrently but cumulative upon the sentences which Brown was then still serving. On this occasion, her Honour declined to make the respondent eligible for parole.

21 The circumstances were that Brown was charged with these four last offences while still serving his earlier sentences of imprisonment. For reasons which are not presently relevant, he had not been charged with these last four offences until much later, although they had been committed in November 2003, almost two months before the two offences for which Brown had been sentenced by Kennedy CJDC in June 2004, although no charges had been laid in respect of these earlier four offences at that date. When Brown was sentenced for these four offences he was still serving the terms of imprisonment which had been imposed earlier. Although Kennedy CJDC had made him eligible for parole under the sentences imposed in June 2004, he was denied parole because of a perceived high risk of reoffending.

22 The facts and circumstances of the offences committed in November 2003, and for which Brown was sentenced in July 2007, were ominously similar to those of the previous offences for which he had been convicted on indictment.

23 The two girls who were the victims of Brown's offences in November 2003 were aged 12 years and 8 years at the time of the offences. At about 4.00 pm on 1 November 2003, Brown left his home in Dianella and was in possession of a backpack which contained a pornographic magazine. He took this with him because he intended to go and masturbate in a public toilet. He walked to the shops in the vicinity of Rosebery Street in Bedford, where he saw the first young girl, GHI, at the phone box at the shops. She was the 12-year-old. As she walked to a nearby oval, Brown followed her and approached her at the park. There he struck up a conversation with her and asked if she would go for a walk with him, and he offered her some money and asked if she would touch his penis.

24 Brown then produced a pornographic magazine and showed this to GHI. He then coaxed her over to a small shed on the oval and sat down next to her on the grass and again showed her the magazine. At this stage, he was sexually aroused and had an erect penis. He asked GHI if she knew where there was somewhere they could go, and he again offered her money. They then walked towards a street in Inglewood and GHI's younger sister, JKL, who was 8 years of age at the time, joined him and the three of them began to walk off.

25 Next, they arrived at a set of units which were then under construction and Brown walked the two girls to a unit in the middle of the complex. He took them to a storeroom in the garage of the unit and that storeroom had walls, a roof, and a concrete floor. He took the pornographic magazine from his backpack and placed it on the ground. He then pulled his shorts down and exposed his erect penis. He asked GHI if she would like to touch it. Both girls began to cry. GHI told Brown that she did not like looking at the magazine and obviously she was upset at that stage. Brown moved to the doorway of the storeroom so that the girls were stopped from leaving. He licked his hand and then began to masturbate in front of the girls. At this stage, the girls became distraught and attempted to move past Brown in order to leave the room. However, he pushed them into the corner and then told them to face the wall. He continued to masturbate for several minutes, until he ejaculated, with his ejaculate going on to the wall and the floor of the storeroom, and with some of it landing on GHI's clothing. At that stage, the two girls were able to push past Brown, who did not appear to have stopped them, and they ran away from the unit.

26 The delay in identifying and prosecuting Brown for these offences was due to a necessity to conduct identification via DNA tracing.

27 The overall effect of these three sets of sentences has been that, being denied parole, Brown was required to serve his total sentence of 11 years' imprisonment and would have been eligible for release at the expiration of the accumulated terms on 26 June 2010 but for the extension of his detention by the orders made in the course of these proceedings.

28 The result of these sentences has been that except for a short period of six months from 22 July 2003 to 27 December 2003 Brown has been in prison since 1 August 1999, which is the date from which the sentences imposed by Blaxell DCJ in Broome on 8 October 1999 took effect. Until 26 June 2010 that amounts to a total amount of 10 years 11 months in prison.

29 In addition to the offences already described which were dealt with on indictment in Western Australia, the respondent, as already noted, has a criminal record in New South Wales dating from February 1987 in the Inverell Children's Court at Kempsey and elsewhere for a variety of offences extending from then until November 1995. He received various sentences for these offences, including several short terms of imprisonment, but none involved sexual offending. However, in November 1995 he was convicted in New South Wales of wilful and obscene exposure and was again convicted of that offence in April 1996, when he received a fixed term of 3 months' imprisonment. In October 1996 he was charged in New South Wales with an aggravated act of indecency with a person under 16 years, aggravated sexual assault and illegal sexual intercourse, and was committed for trial on those charges in December 1996. He did not appear at the Moree District Court on those charges in December 1996 and bench warrants issued for his arrest, but the New South Wales DPP later decided not to proceed with those charges. He was again convicted of wilful and obscene exposure in July 1997 in New South Wales.

30 In November 1998 Brown was convicted of three counts of wilful and obscene exposure in public in Victoria, but the details of that offence are not known to the authorities and have not been revealed by the evidence in this case.

31 The two convictions for indecent acts in Western Australia which occurred on 9 February 1999 resulted in a suspended term of imprisonment, as already mentioned. When sentencing Brown for the subsequent offence in Broome in 1999 Blaxell DCJ ordered that that suspended term of imprisonment should then be served. The details of those two offences are as follows.

On 29 November 1998, when a woman was walking along the beach, she noticed the respondent walking towards her. When he got to within about 70 m he removed his pants and began masturbating. He followed the woman as she returned to her car and drove away.
On 5 December 1998 a woman and her younger sister went to a Broome park. Brown was there and, seeing them, Brown pulled down his pants, removed his shirt and masturbated. He gestured to the complainant to join him but she left the park with her sister.

32 Following the sentences imposed by Blaxell DCJ on 8 October 1999, Brown applied for parole but had his applications refused on 12 June 2003 and again on 25 May 2006. He was released from prison under those sentences on 22 July 2003, after receiving 10 days early discharge.

33 Following the sentences imposed by Kennedy CJDC in the Perth District Court on 11 June 2004, Brown applied for parole on 25 May 2006, but his application was denied by the Prisoners' Review Board, resulting in his sentence being (administratively) changed to a finite term. Those terms were extended as a result of the further sentences imposed on 27 July 2007, again by Kennedy CJDC.

34 On 17 December 2008, Brown was transferred from custody in Western Australia to Silverwater prison in New South Wales, where he served 358 days of his sentence. He was returned to Western Australia in custody on 9 December 2009 to continue his existing sentence.

35 In the latest available Sex Offender Risk Update Report, prepared by the Department of Corrective Services and dated 16 February 2010, the acting principal psychologist of the clinical governance unit reported on the respondent's treatment history in prison since 1999 as follows:

In 2000 Mr Brown was deemed suitable for an Intensive Sex Offender Treatment Programme (ISOTP) and at the time of the assessment he was willing to undertake the programme (reference to a contemporary report). However, he declined to participate in a programme due to commence at Bunbury prison in November 2000, citing concerns about his safety if he were to move there from Casuarina prison (reference given). Mr Brown was waitlisted for the next ISOTP to be held at Casuarina prison.

Mr Brown commenced an ISOTP at Casuarina prison on 5/09/2001 which he failed to complete, withdrawing from the programme on 7/11/2001. The facilitators noted that Mr Brown 'failed to demonstrate a willingness to engage in treatment. His attitude and inappropriate behaviour within the programme suggested a distinct lack of motivation to address his offending behaviour'. As such, Mr Brown was considered to remain at high risk of recidivism (reference given).

A further assessment of Mr Brown's treatment needs in 2002 (reference given) reiterated Mr Brown's high risk of sexual recidivism, highlighting issues that required addressing as victim empathy, sexual deviancy, and insight into the psychological underpinnings of his offending. Rather than group based treatment, it was recommended that Mr Brown receive individual psychological counseling. Mr Brown subsequently participated in 12 individual sessions over the period 18/11/2002 to 03/06/2003. According to the Treatment Completion Report, Mr Brown 'recognised his risk factors, has motivation to change, and is willing to take responsibility for his offences'. Nevertheless, the author considered that he 'would not have sufficient skills to be confident of not re-offending' (reference given).

Mr Brown was waitlisted for another ISOTP due to commence in May 2003, however, his earliest date of release was in August 2003, which did not allow sufficient time for him to complete the programme (reference given). Mr Brown was released from prison on 22/07/2003 (after receiving an early discharge).

Following his return to prison for Unlawful Detention and Sexual Penetration of a Child Under 13 Years, Mr Brown commenced an ISOTP on 29/11/2004 (comprising six hours group work per day, three days per week for six months), completing it on 24/06/2005. According to the Treatment Completion Report (reference given), Mr Brown 'demonstrated an intellectual understanding of his issues...but at the conclusion of the programme, had not translated his understanding into behavioural change'. The report identified outstanding treatment needs in the following areas: management of inappropriate sexual fantasies and sexual preoccupation; distorted attitudes towards women and the issues underpinning these; emotional expression and regulation; emotional intimacy with adults; and life goals. It was also noted that Mr Brown's difficulty trusting others and his need for control impeded meaningful therapeutic engagement. The facilitators recommended that Mr Brown be assessed for another ISOTP as well as undergo an assessment of his personality structure (to aid in determining the most appropriate treatment mode for Mr Brown. Mr Brown expressed his willingness to engage in further treatment to address outstanding treatment needs.

Mr Brown completed a Managing Anger and Substance Use (MASU) Programme (comprising 10 x five hour sessions) on 08/09/2005. The Treatment Completion Report described Mr Brown as an active participant 'providing valuable feedback and challenges to group members'. He was also observed to respond appropriately to challenges about his anger and violent behaviour.

Mr Brown was interviewed for another ISOTP in September 2005 but declined as he considered that he already had the skills to prevent a relapse (reference given). Mr Brown apparently changed his stance on undertaking another sex offender programme and completed a second ISOTP in March 2007. An assessment of Mr Brown's personality as per the recommendations from the previous ISOTP Treatment Completion Report was not undertaken, however the programme content was adapted to cater for Mr Brown's personality structure. The Treatment Completion Report stated that:

... he met few programme objectives, made few treatment gains, was observed to gain limited understanding of the factors underlying his attending and did not demonstrate greater acceptance of responsibility for his behaviour...Mr Brown has now completed two Intensive Sex Offender Treatment Programmes and made few gains. Mr Brown's participation in multiple treatment programmes appears to have assisted him to be able to present more favourably to others and to have avoided directly addressing his own treatment needs. While he has an intellectual understanding of the factors associated with his offending, he does not appear to have made changes to those behaviours...

In the final week of this programme, Mr Brown was charged with additional (and previously undisclosed in the group) offences. Of further concern to the facilitators was that the details of these additional charges had not been discussed or addressed in the programme and therefore had not been considered in his relapse prevention plan.

36 The report from the dangerous sexual offender psychologist of 16 February 2010 then went on to address the risk of reoffending for the respondent and reported that:

The STATIC-99 is an internationally recognised risk assessment measure that combines 10 static (unchanging) risk factors that have been shown to be associated with increased risk of reoffence and has been used to estimate Mr Brown's risk of sexual reoffending. Mr Brown's STATIC-99 score places him in the 'high' risk category. Based on a sample of sex offenders from Canada and the UK upon which the STATIC-99 was developed, individuals with these characteristics, on average, reoffend at 39% over five years and at 45% over ten years.

Although the STATIC-99 has not been normed specifically on Australian Indigenous males, a study investigating the predictive accuracy of several risk sexual recidivism tools on a Western Australian cohort found that the STATIC-99 had similar accuracy rates as those found in Canada, Sweden and the Netherlands, performing second to the 3-Predictor model (Allen, Dawson and Allen 2006). While caution should still be exercised in drawing conclusions from Mr Brown's STATIC-99 score, his lengthy and persistent history of sexual offences and relatively short time between sanction and reoffence suggests that the STATIC-99 is likely a realistic representation of his risk of a sexual recidivism.

Conclusions

Mr Brown's STATIC-99 score which is based on unchangeable, historical factors indicates he presents a high risk of sexual reoffending. He has a history of committing sexual offences that range from exposure to sexual penetration and detainment of a child.

Mr Brown has commenced three Sexual Offender Treatment Programmes (and completed two), as well as had individual psychological counselling around his sexual offending. The reports from all of these interventions similarly state that Mr Brown has made minimal treatment gains and continues to have outstanding treatment needs around his sexual offending.

37 The materials before the court include statements from the victims and witnesses of the offences of which Mr Brown has been convicted, transcripts of video records of interview conducted with him by investigating police officers and a series of pre-sentence reports, psychiatric reports and psychological reports prepared for use by the judges who sentenced Brown following his various convictions, together with the Sex Offender Treatment Completion Reports which have been referred to in the recent passage cited.

38 In the first psychiatric report prepared for the sentencing in Broome by the psychiatric registrar of the North-West Mental Health Services on 3 February 1999, he concluded that there was no obvious evidence of psychotic illness or depression. He reported a long history of childhood deprivation related to both his biological parents and his initial foster parents and concluded that Brown had consequent problems with normal interpersonal relationships which these generate. His diagnosis was of a paraphilia (exhibitionism) for which inter-oriented psychotherapy was recommended. It is not insignificant to note that the doctor found it difficult to form a rapport with Brown and cautioned that his insight into his behaviour was therefore limited.

39 A further pre-sentence report was prepared in September 1999 and was accompanied by a clinical psychological report of 30 August 1999. That psychological report was to the effect that the respondent showed no evidence of mental illness or other psychological abnormality but was evasive about the offence charged. The psychologist concluded that the respondent had problems of sexual deviancy which he acknowledged and attributed to a combination of alcohol abuse and an excessive interest in sex, but the psychologist noted that the repetition of exhibitionism and the assault on a small girl suggested a disordered sexuality. The pre-sentence report from the Roebourne Community Corrections Officer of 27 September 1999 reported that it was then apparent that Brown remained at risk of further offending in a like manner without treatment and questioned whether or not he would be suitable for the Sex Offender Treatment Programme.

40 In a specialist report from the Prisons Division Offender Programmes by a psychologist dated 20 May 2004, prepared in advance of Brown's sentencing in June 2004, a long history of his previous offending behaviour was given, together with his family and social history. The psychologist concluded that based on the tripartite model of risk assessment an initial classification upon consideration of actuarial factors placed the respondent at a high risk of reoffending. After emphasising the various features of his case leading to this conclusion, the psychologist reported that the respondent's other risk factors include an entrenched deviant sexual interest in children, a preoccupation with sexual issues and the compulsive nature of some of his sex offending behaviour. A separate pre-sentence report prepared by Community Justice Services and dated 10 June 2004 for use at the June 2004 sentencing adopted the findings and observations of the psychologist and recommended that if a custodial penalty was imposed Brown should complete the Sex Offender Treatment Programme.

41 The materials before the court also include a series of pre-parole reports by psychologists attached to the Prisons Department and correspondence with the Parole Board in relation to associated matters.

42 A psychiatric report dated 1 July 2007 prepared for the sentencing in July 2007 reported that Brown had no underlying psychiatric disorder and stated that his offending was clearly related to his anti-social and narcissistic personality disorder, complicated by his poly-substance abuse. No specific recommendations regarding psychiatric treatment were made but the psychiatrist expressed the view that at some point he may benefit from a trial of anti-androgen medication as an adjunct to psychological intervention for alcohol and drug rehabilitation, but that his risk of reoffending in the community then remained high. In the psychological report also prepared in July 2007 for the then imminent sentencing, emphasis was placed on the respondent's distorted attitudes. This recorded that he had exposed himself on a tri-weekly basis to young women (and children on occasions) since he was a teen. In the summary the writer noted that many of his offences involved significant planning and that he presented with entrenched sexual interests in children. The report included an observation that an actuarial reoffence risk assessment placed Brown in the high risk category, with a 4 in 10 likelihood of sexual reoffence within 5 years, although caution was expressed in dealing with the results of the STATIC-99 risk assessment.

43 Although I have not canvassed all the details of the various sex offender treatment programme reports or the recommendations to the Parole Board or the Prisoners' Review Board at the time of the various reviews of his potential for release on parole (all refused) these are essentially consistent with the various reports which have so far been specifically mentioned.

44 It was on the basis of this history and information that the applicant initiated this application for orders under the Act on 27 April 2010. Accordingly, it is now necessary and appropriate to consider the reports of the independent psychiatrists appointed by the court to examine and assess the respondent.

45 The procedure followed at the hearing of this application was that a series of witnesses was called by the applicant and each gave oral evidence in amplification of earlier reports and was cross-examined. The witnesses for the applicant were the psychiatrists, Dr S Febbo FRANZCP, and Dr Bryan Tanney FRANZCP. They were followed by Mr David Matene, a senior Community Corrections Officer responsible for community supervision assessments, and Dr Tarmala Caple, a forensic psychologist to whose team Brown would be referred if he were to be placed on a supervision order. At that point, the proceedings were adjourned to allow potential accommodation arrangements in the community to be investigated and assessed. When the hearing resumed on 28 October 2010 evidence was given by Ms Carrie Clements, Community Corrections Officer, who produced exhibit 71, being a report on certain proposed accommodation within the Perth metropolitan area. This evidence was followed by Detective Sergeant Edward Clayton Gwilliam, responsible for supervising the programme for dangerous sexual offenders living in supervised accommodation within the community who had inspected and assessed the proposed accommodation as suggested on behalf of Brown. It will be necessary to consider the significance of the evidence of these witnesses in order.

46 Dr Febbo had produced a comprehensive report on the respondent which was dated 13 June 2010. This extends over 56 pages and is exhibit 64. There is no challenge to the qualifications, experience or suitability of Dr Febbo to express opinions on the issues for consideration in this case. He had access to all the documentary materials prepared for the applicant and tendered in this case and he interviewed Mr Brown on three separate occasions extending over a total of 9 3/4 hours at Acacia Prison on 27 and 31 May 2010 and again on 3 June 2010 taking a detailed psychiatric history in the course of that process. Dr Febbo then approached the process of risk assessment using several different risk assessment tools, falling into two categories: the first, 'actuarial instruments', and the second, 'structured professional judgment'.

47 In the former category Dr Febbo used the STATIC-99 test which placed Brown in a high risk category, but because this does not take into account dynamic factors Dr Febbo was of the opinion that it was of limited value in this form of assessment. On the Hare Psychopathy Checklist - Revised (PLC - R) he gave the respondent a pro-rated score of 32.6 points out of a possible 40, which put him at the 93rd percentile when his score is compared to those based on a pooled sample of 5,408 male offenders. Dr Febbo explained this as meaning that 7% of correctional offenders are more psychopathic than Brown is and that 32.6 on that score is above the cut-off traditionally used to diagnose psychopathy, which is 30 points or higher out of 40. On the same test his scoring relating to interpersonal and affective features of psychopathy was 12 out of a possible of 16, putting him at around the 83rd percentile. That measures features such as lack of remorse or guilt, shallow affect, a lack of empathy, in addition to a failure to accept responsibility. It includes markers for manipulation and a grandiose sense of self worth. On the social deviance scale on this test Brown's score was 17 out of a maximum possible of 20, putting him at the 91.5 percentile. This is said to reflect his tendency to impulsivity and irresponsibility, juvenile delinquency, revocation of conditional release and early behavioural problems.

48 According to the literature, the PCL-R scoring has a good predictor validity with respect to sexual offences, particularly when combined with sexual deviance. Again, according to the literature, when psychopaths were defined as those with a PCL-R score of at least 25, within 10 years approximately 90% of psychopaths and 50% of non-psychopaths had violently recidivated. The psychopathy was also significantly related to the sexual recidivism but the strongest effect was obtained when the PCL-R was combined with a measure of sexual deviance.

49 On the HCR-20 method, which is used with civil, psychiatric, forensic and criminal justice populations, the 20 items identified (also included with the PCL-R score) capture relevant past, present and future considerations and operate as a structured set of guidelines. Using that basis, Dr Febbo considered that Mr Brown had a significant risk of future violence.

50 Next, Dr Febbo employed the RSVP test, which is intended for use with men aged over 18 years who have a known or suspected history of sexual violence. It includes static risk factors such as prior offending history. These are used for evaluating long-term risks and dynamic variables are also identified and estimated. This involved assessing Mr Brown's history from several domains. The first was the sexual violence history, which was both persistent and frequent, involved voyeurism, exhibitionism and sexual assault, and indicated a progressive escalation in the severity of sexual violence, and was accompanied by the use of physical force.

51 In turning to the second domain of psychological adjustment, Dr Febbo noted that Mr Brown did not engage in minimalisation or denial of sexual violence, so that that factor was absent, however he considered that the long-standing nature of the respondent's belief in the system suggested that he had attitudes which condoned sexual violence. With regard to problems of self-awareness it was Dr Febbo's opinion that there were indications that the respondent has serious problems with self-awareness. In relation to problems with stress or coping, Dr Febbo noted that the respondent continues to have serious problems with stress or coping and he also noted that he has serious problems resulting from child abuse.

52 Turning to the third domain of mental disorder, Dr Febbo considered that the respondent demonstrated serious sexual deviance; a psychopathic personality disorder, but did not have a major mental illness. He also considered that he had serious problems with substance abuse in view of his history (alcohol and cannabis) and that there was a possibility that he had serious violent or suicidal ideation. On the domain of social adjustment, Dr Febbo thought that Mr Brown had serious problems with intimate relationships and with non-intimate relationships and possibly serious problems with employment. As a result of his early criminal record, Dr Febbo believed that he had engaged in serious non-sexual criminality. On the domain of manageability, Dr Febbo thought that Mr Brown had serious problems with planning for the future, in undergoing sex offender treatment and difficulties in submitting to supervision.

53 Turning to risk scenarios and applying the RSVP method, Dr Febbo believed that Mr Brown's level of function and behaviour may well deteriorate, that he might breach supervision requirements such as abstaining from alcohol and substances and avoiding locations where he may meet children. He offered the opinion that it would be at that point that Mr Brown would be at significant risk of reoffending against female children.

54 Finally, Dr Febbo reported that considering the extent of the respondent's personality pathology, there had been some progress in addressing the sexual offending during the course of two completed and one uncompleted sex offender treatment programmes. He said that the respondent's history suggested that he had gained some insight into a number of issues, including his own needs, his attitude towards women, the sexual offending and the impact of his offending on victims. Denial or minimisation was largely absent and the respondent expressed what Dr Febbo accepted to be a genuine wish not to reoffend.

55 Nevertheless, Dr Febbo maintained the opinion that the respondent remains at high risk of a serious sexual offence if he were to be released without a number of treatment needs being addressed. Of these, the one of most concern is the stable dynamic risk of sexual deviancy because Brown continued to report the presence of inappropriate sexual fantasies and arousal involving children and employed these fantasies as an aid to masturbation several times a week. There was the possibility of anti-libidinal medication to assist in addressing the sexual deviancy and it was hoped that this might be explored through the prison psychiatric service.

56 The final expression of opinion by Dr Febbo was as follows:

To conclude it is my view that currently Mr Brown is at high risk of committing a serious sexual offence if not subject to a continuing detention or supervision order. It is my opinion that there are a number of issues that need to be addressed prior to release.

In my opinion Mr Brown's level of risk is likely to decrease to a more acceptable level if the following are addressed and made part of a supervision order. If these issues are addressed in a timely fashion then it may be that Mr Brown could be reconsidered for release within the next 12 months, assuming the legal process allows this.

Psychotherapeutic input with an experienced clinical psychologist to address a number of issues (and risk factors) that Mr Brown has commenced to explore in the context of SOTP. This input can commence while Mr Brown is in custody but needs to continue in the community as part of the supervision order.

It is important to make the point that in individuals with personality structures such as Mr Brown's there may well be significant difficulties with engagement in a therapeutic relationship, and progress, particularly initially, may be slow and limited.

Mr Brown is considering treatment with antilibidinal medication. There are indeed a number of aspects to Mr Brown's presentation that suggest antilibidinal medication may well be a valuable adjunct to treatment. These include the history of multiple paraphilias, sexual preoccupation and the extent of sexual deviancy.

In my view this medication, together with psychotherapeutic intervention and monitoring, is the most likely combination of treatment strategies to decrease Mr Brown's risk of reoffending.

Antilibidinal medication may have a negative impact on psychological stability with, for example, additional depression as an individual adjusts to changes in his perception of his masculinity and this, in turn, can be associated with an elevated offending risk. It would be appropriate to consider commencing this medication in a custodial setting.

Social work intervention including assistance in practical issues such as accommodation, social support and possibly employment. Ideally accommodation should support positive social interaction and social support.
The use of antidepressant medication, an SSRI, as a therapeutic trial to address Mr Brown's intermittent depressive symptoms. The additional benefit is that the use of this medication may well be associated with a decrease in sexual drive.
Community support and monitoring with a case manager through the Department of Corrective Services if possible, at least initially, twice a week.
Some continuing input to address the alcohol and substance abuse and consolidate the treatment gains made whilst in custody. It would be appropriate to consider services such as the Aboriginal Alcohol and Drug Services (AADS). It would also be appropriate to consider urinalysis.
Every attempt should be made to limit Mr Brown's contact with children. I understand that this monitoring is carried out utilizing both Corrective Services and police resources.

57 In the course of cross-examination Dr Febbo acknowledged that the STATIC-99 test had not been validated for indigenous Aboriginals, that it had to be used with caution, and that it had not been designed for serious crimes. He acknowledged that it was a static-based test only and he said that he would not rely upon this alone. He regarded the RSVP test as a good tool, but acknowledged that it had a tendency to over-protect the community by reason of its conservative balance. To the cross-examiner Dr Febbo noted that Brown had earlier been placed on a suspended sentence but had reoffended, and expressed the view that he needed 6 to 12 months' treatment in prison at least before being released. In re-examination he stressed that the reasons to prefer treatment in custody included problems engaging and in gaining the trust of the respondent, of establishing a satisfactory therapeutic engagement, and the risk of distressing experiences which made the exercise safer in prison.

58 Dr Febbo's opinions were based on a variety of supporting approaches. He has relied upon his own psychiatric experience and knowledge; he gave regard to the detailed history and the assessments of the respondent's personality traits; and he applied and recorded the measures on the risk assessment tools which he mentioned, emphasising that, in particular, with the STATIC-99 methodology, that it would be unsafe to rely upon that alone.

59 There was nothing in the evidence given by Dr Febbo or in his cross-examination which would cause me to doubt the opinions which he expressed or to hold any reservations about how they had been reached. What may be said, of course, is that providing opinions as to the likelihood of future events, in this case, predicting the risk of future serious sexual reoffending, is an undertaking which must always be open to some doubt and which can seldom, if ever, be a matter of certainty. What can be said, however, is that Dr Febbo is a well-qualified, experienced and independent psychiatrist who has provided his opinions on these matters based on all the available current learning. He regards the respondent as being in the category of high risk of reoffending by lapsing into the kind of sexual behaviour which has led to the serious convictions on indictment in this State in the past.

60 The report of Dr Tanney is exhibit 65 and runs 24 pages. Dr Tanney was also supplied with the two books of materials, being the documents tendered by the applicant in these proceedings, and he interviewed the respondent at Acacia Prison on 25 and 28 May 2010, over a total period of 5 1/2 hours, in the course of three interviews.

61 Dr Tanney scored the respondent at 9 on the STATIC-99 test, putting him into the high risk rating for recidivism of sexual or violent offending.

62 On the RSVP test (risk for sexual violence protocol) Dr Tanney's conclusion is that there were 17 definite and three possible risk factors of a total of 22 and that this is an extremely high number of risk factors which were evenly distributed over all five clusters. He concluded there was an established pattern of deviant sexual offensive behaviour from an early age and that the respondent garnered physical and psychological satisfaction from his behaviour and that there are concerns about the sadistic elements. He concluded that all of the remaining clusters reflect lifelong impairments of his inner psychological processes. He concluded that under cluster B, psychological adjustment, there were deficits which involved both sexual and overall maladjustment with the former difficulties linked to inner psychological difficulties, suggesting deeply held beliefs and convictions which would represent major challenges to treatment and rehabilitation efforts. In relation to cluster C, mental disorder, Dr Tanney noted a strong presence of psychopathic personality traits which distorted all his external interpersonal and social relationships and his inner emotional responses. In relation to cluster D, social adjustment problems, Dr Tanney noted social maladjustment in all life domains related to interpersonal and social relationships. In relation to cluster E, manageability, Dr Tanney concluded that despite the respondent's stated personal commitments, it was clear that both the dosage and reinforcement of the treatment programme had had almost no meaningful impact on the majority of risk elements or domains that contribute to sexual offending.

63 Dr Tanney also utilised and applied the three predictor model (Allan et al) and noted that Brown's internal ways of avoiding emotions and his external ways of handling people at an emotionally mutually satisfying level constitute a major deficit and that he is minimally aware of the severity of this deficit.

64 In expressing an opinion about future risk of offending, Dr Tanney concluded that, without effective ongoing management (including monitoring and possible treatment) and the implementing of specific risk diminishing measures, the respondent is at a very high (5/5) risk of further serious sexual offending as estimated by available procedures and measures.

65 In relation to the Allan's three factor model, Dr Tanney stated that this provided virtually no support for a reduced likelihood of reoffending sexually. He then pointed out that the results from the three different structured inquiries to measure the likelihood of reoffending were in strong agreement.

The preferred objects of his sexual offending behaviour have evolved to young (pre-pubescent and pubescent) stranger females recruited opportunistically but with intent. He prefers pubescent females. They are chosen as 'vulnerable' as he can 'control' and 'put fear into them'. He further expressed that they could be 'talked into' sexual activity or were 'curious'. Further sexual re-offending would most likely be persons with similar characteristics.

A risk scenario can be clearly identified. His sexual interest is aroused, with some disinhibition by alcohol and/or cannabis. There is no readily available sexual partner or they are/have been unwilling. He has graphic pornographic material and takes it into the community, ostensibly as a stimulus for masturbation or flashing. With the evolution to contact and serious sexual offending, his community wanderings become 'trolling' for pre-pubescent, female, stranger victims. Making such contacts, he is not aggressive initially, but undertakes psychologically coercive grooming behaviour with enticements that he believes will be likely to garner a willingness to accompany him to some more isolated location. Once at such a location, there is little delay before physical violence is used to coerce involvement in the offending behaviours. Active resistance serves to abort the offending, suggesting that he has some fantasies involving consent and pleasure on the part of victims. In all known episodes, offending is concluded by such resistance or when his psychological sexual arousal is satisfied.

67 Dr Tanney was pessimistic about the prospects of further remedial treatment because, in his view, the respondent lacks the usable psychological tools needed to benefit from a treatment programme that addresses the specifics of sexual offending. Dr Tanney considered that developing such tools may be beyond the respondent's capability and/or beyond the realistic objectives for current treatment programmes.

68 In Dr Tanney's view, Brown is at a very high risk of sexual reoffending despite significant treatment of appropriate dosage and intensity during his current custody. He concluded that Brown is at a significant enough risk of serious sexual reoffending that the community deserves more assurances of safety than can currently be provided by the respondent and that at the present time the outcome of community placement would most likely lead to further serious sexual offending.

69 In the course of cross-examination Dr Tanney accepted that the available records indicated that the respondent had not received any sexual treatment programmes since 2007. He also accepted that there was no single reliable predictive test of the level of danger presented by a sexual offender for reoffending and acknowledged that the STATIC-99 test had been criticised and was of modest reliability and not designed for serious sexual offences. He also acknowledged that the predictor scale test devised by Professor Allan had not been validated by publication in peer review journals and that there was no one instrument available which could be relied upon by the court to make the assessment required by the legislation.

70 As with Dr Febbo, my impression of Dr Tanney was that he had provided a very comprehensive and professional analysis of the respondent and had considered all the available information and utilised this in coming to his opinions and, in doing so, employed the leading available tests for prediction of future risks. Again, however, Dr Tanney did not assert that there was any one determinative factor or any one objective test or that future predictions could be made with certainty. Nevertheless, the conclusions which he reached were in accordance with the published literature, his own experience and opinion and with the views of Dr Febbo.

71 Counsel for the respondent submitted that the court should place little weight upon the opinion of Dr Tanney contending that his cross-examination revealed that he had taken a somewhat polarised position against the respondent and one which lacked objectivity. It was also submitted that Dr Tanney was reluctant to take the respondent at his word in the course of his interviews when the respondent claimed that he was motivated to change his past substance abuse and that Dr Tanney was disposed to draw unfavourable inferences or conclusions because of the respondent's demeanour and non-verbal forms of communication at the interview. These submissions culminated with the proposition that the ultimate judgment of the court must be one reached by the court, and not by any expert witness, and that there is a potential for any tribunal of fact to misunderstand and misuse risk assessments by assigning greater accuracy and inevitability to predictive behaviours than is warranted - see per Calloway JA in TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109. In the same vein, it was submitted that heed should be paid to the warning expressed by Kirby J in Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, 623, where his Honour said that:

Experts in law, psychology and criminology have long recognised the unreliability of predictions of criminal dangerousness. In a recent comment, Professor Kate Warner remarked: "[A]n obstacle to preventive detention is the difficulty of prediction. Psychiatrists notoriously over-predict. Predictions of dangerousness have been shown to have only a one-third to 50% success rate."

72 Further, in this regard, counsel for the respondent draws attention to similar warnings about the difficulties and uncertainties of predictive opinion, referring to the observations of McKechnie J in Director of Public Prosecutions (WA) v Comeagain [2008] WASC 235 [20] where his Honour said:

There remains an issue with all the predictive tools in that they have not yet been validated. They were developed, in part, to overcome the perceived and actual weaknesses of an unguided clinical assessment and have been embraced by professionals, psychiatrists and psychologists, as an improvement on an un-guided assessment. Nevertheless, it would be an error to attribute a degree of scientific certainty to the tools simply because they deliver an arithmetical outcome. They remain unvalidated. Years will have to pass before a retrospective survey can determine whether and, to what extent, the predictive tools are reliable.

73 Insofar as these submissions invite the court to disregard the opinions of Dr Tanney because of alleged lack of objectivity on his part, or because of unsubstantiated reliance upon impressions gained from non-verbal communications in the course of interviews, I must, with respect, decline to accept those submissions. As already noted, I consider Dr Tanney to be well experienced and qualified and particularly familiar with the task of carrying out assessments of this kind. Given the subject matter of the investigation, and the potential significance of any report which an appointed psychiatrist must prepare for the court, it is only wise for the psychiatrist to be on guard lest the subject attempt to mislead him or to deceive him in the course of a clinical interview. This is a disposition which all psychiatrists regularly bring to their professional function and it is no more than necessary and prudent caution. The same disposition may be said to be an indispensable part of the function of counsel or, for that matter, a judge.

74 I consider that I should accept the opinions of Drs Febbo and Tanney. Not only are they cogent and consistent with the objective information but no contrary opinion has been produced or adduced in evidence from any other psychiatrist, nor do the pre-sentence reports or psychiatric reports which have been prepared over the years dealing with the respondent's case reach or suggest any contrary or inconsistent view. The issue for immediate decision, therefore, is what conclusions I should draw from this specialist psychiatric evidence.

75 The task to be undertaken by the court is to consider whether or not the applicant has established that the respondent is a serious danger to the community (s 7(1)). To make such a finding, the court must 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. The onus of establishing that that would occur rests upon the DPP and has to be satisfied by acceptable and cogent evidence and to a high degree of probability (s 7(2)).

76 Section 7(3) directs that, in deciding whether to find that a person is a serious danger to the community, the court must have regard to:

(a) any report that a psychiatrist prepares as required by s 37 for the hearing of the application and the extent to which the person co-operated when the psychiatric examined the person;

(b) any other medical, psychiatric, psychological, or other assessment relating to the person;

(d) whether or not there is any pattern of offending behaviour on the part of the person;

(e) any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation programme;

(f) whether or not the person's participation in any rehabilitation programme has had a positive effect on the person;

(h) the 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;

(i) the need to protect members of the community from that risk; and

77 By reason of s 17, if the court finds that the respondent is a serious danger to the community, it may make one of two alternative orders but it cannot refrain from making an order. The two alternatives, one of which must be chosen in the event of a finding that the offender is a serious danger to the community, are:

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

(b) an 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 (supervision order);

and that in deciding which of the two orders to make, the paramount consideration must be the need to ensure adequate protection of the community.

78 If an indefinite detention order is made, then it must be regularly reviewed. Section 29 provides that when a person is subject to a continuing detention order, the DPP must apply to the Supreme Court for that person's detention under the order to be reviewed as soon as practicable after the end of a period of one year, commencing when the person is first in custody on a day on which the person would not have been in custody had the order not been made (in this case, that would be on 26 June 2011) and as soon as practicable after the end of the period of one year commencing when the detention was most recently reviewed under s 29 or s 30.

79 Mr David Matene, a senior Community Corrections Officer of the Department of Corrective Services, gave evidence on behalf of the applicant in relation to a community supervision assessment of the respondent which he had prepared on 15 June 2010. This became exhibit 66. This is a task performed in preparation for the release of an offender at the completion of a prison sentence and followed a series of five interviews of the respondent by Mr Matene. One of the matters undertaken for this investigation was to consider the suitability of accommodation available for Mr Brown if he were to be placed on a supervision order under the Act. Brown himself had no accommodation available nor any network of connections which would be likely to provide accommodation and was reliant upon outreach proposals with an organisation that cared for the transition of prisoners to the community.

80 As a result, Mr Matene had a number of visits from Outcare staff between April and June 2010 to investigate the potential for suitable accommodation for Brown, but the result was that Outcare was unable to provide him with release accommodation because of the nature of his offending. Mr Matene also contacted other similar organisations, Lentara Men's Hostel, St Bartholomew's House, Tanderra Men's Hostel and Wilf Sargent House, without success. No suitable accommodation arrangements could be found, although Mr Matene indicated that he would continue to explore possible options.

81 One of the practical difficulties in this respondent's case was that, because of the nature of his offences, accommodation in proximity to primary schools, parks or reserves which may possibly be frequented by children, would be unsuitable.

82 In the course of his examination and cross-examination, Mr Matene was shown a letter from Uniting Care West (UCW) of 9 June 2010 (exhibit 68) which indicated that that organisation did not have accommodation immediately available for Mr Brown but expected that suitable accommodation may become available by September 2010.

83 It also emerged that from a recent meeting with an Outcare representative Mr Matene had been told that that organisation did have accommodation available for Mr Brown as from 28 June 2010 but if it were not taken up it would be allocated to another person on the waiting list. As it turned out, that was not suitable because of its proximity to a local primary school. Other than this, no potentially suitable accommodation for the respondent had been found. The cross-examination of Mr Matene concentrated on the possibility that suitable accommodation might eventually be found, but at that time no such accommodation had been identified.

84 Then the applicant adduced evidence from Dr Tarmala Caple, a forensic psychologist attached to what is known as the Dangerous Sex Offender Psychology Team within the Department of Corrective Services. She had prepared a report in relation to sex offender treatment options which was dated 16 June 2010. This became exhibit 67.

85 Dr Caple had not herself seen Mr Brown but prepared her report as a result of information on the departmental files and after consultation with Dr Febbo and Dr Tanney. The purpose of her report was to provide an overview of intervention services which could be provided to the respondent by the department if he were to be made subject to an order under the Act. The report documented earlier reports which indicated that the respondent had a number of outstanding intervention needs in the domains of sexual interests, distorted attitudes, socio-affective functioning and self-management. According to her, his needs would typically be addressed through engagement in an intensive sex offender treatment programme but because, in his case, his needs have continued after two prior such groups, it was thought unlikely that he would be suitable for future group-based interventions. The record suggested that his personality structure was a significant factor limiting his ability to benefit from group-based interventions. This was confirmed to Dr Caple in the course of her discussions with the psychiatrists. Different approaches would be followed depending upon whether or not the court were to make a detention order or a supervision order and the respective positions would then be:

If the respondent were made subject to a continuing detention order, a specialist psychologist from the Dangerous Sexual Offenders Psychology Team would case manage the psycho-social intervention needs throughout the period of detention. That would be done by reviewing all the documentation, leading to an assessment of his suitability, motivation and readiness for identified programmes or other forms of intervention.

Because of past experience with attempted intervention therapy in Mr Brown's case it is likely that this would be a lengthy process, and if the main need factors are in the areas of psychopathy, the prognosis for improvement is likely to be less positive. From the records, Mr Brown was deemed to have a low readiness for psychological therapy and that, therefore, psychological management would be the preferred intervention strategy.

The model of service delivery in cases of supervision orders under the Act is one of collaborative multi-agency partnerships to augment supervision intervention and ongoing risk assessment. Extensive counseling is involved, together with group-based community programmes. Much of these are dependent upon the patient's readiness for treatment.

86 Solely from her review of the documents, Dr Caple was of the opinion that it was unlikely that Brown would be a suitable candidate for further sexual offender treatment programmes in view of the limited success of his previous experiences with them.

87 The cross-examination of Dr Caple focused on whether or not there were any material differences in the method of treatment or supervision depending upon whether a dangerous sexual offender remained in detention or was subject to a supervision order in the community. The suggestion was put to the witness that the only real difference was that there was a greater security in the exercise from the perspective of public protection if the offender remained in custody. However, no definite answer could be given to this suggestion by Dr Caple because she had not assessed Mr Brown personally and no attempts to construct a tailored treatment programme for him had commenced. The reserve which she expressed was based on the lack of success of previous programmes undertaken in prison and, to that extent, provided historical support for the caution underlying Dr Caple's explanations.

88 I do not consider that much can be concluded from this evidence other than to say that different methods of management and supervision of treatment are available both for dangerous sexual offenders who continue to be detained and for those who are released on supervision orders, but exactly what those programmes would be would depend on the peculiarities of the particular case, the design of the programmes prepared for the particular offender and progress of the supervision efforts after experience. All that can be taken from this evidence is that there are facilities and opportunities available for dangerous sexual offenders who continue to be detained and for those who are placed under supervised release in the community.

89 It was at this point in the progress of the case that counsel for the respondent sought an adjournment to explore the opportunity and suitability of the accommodation proposals which had emerged from the then recent correspondence from UCW Outreach services. Accordingly, the hearing was adjourned to allow this to be pursued and, when relisted, had to be adjourned further to allow the specific proposals then to be assessed by the Department of Corrective Services and the Dangerous Sexual Offenders Supervision Teams.

90 When the hearing of the application resumed on 28 October 2010, after these inquiries and evaluations had been completed, further evidence was adduced from the applicant to address the suitability or otherwise of a certain specific accommodation proposal which emerged from the UCW proposal. Accordingly, a report from Ms C Clements, the acting senior Community Corrections Officer in the Department of Corrective Services responsible for making community supervision assessments, and dated 16 September 2010, was produced and became exhibit 71. Similarly, a report of Detective Sergeant E C Gwilliam of 1 September 2010 relating to what is called an environmental scan of the proposed accommodation was also tendered and became exhibit 70. The authors of both reports were then called and gave oral evidence and were cross-examined.

91 Both reports addressed a particular accommodation proposal for the respondent which had emerged from liaison between the respondent and his legal representatives at Outreach services. The accommodation is in an eastern suburb, which should not be further identified publicly for reasons which were canvassed at the hearing. However, details are available in exhibits 70 and 71 but must not be published without leave of the court.

92 The community supervision assessment conducted by Ms Clements reported that Outreach could accommodate the respondent from 4 to 6 months with a possible extension of up to 12 months, but after that the respondent would be required to find his own independent accommodation. During the time of its support, Outreach would conduct home visits, transport to appointments and general social support. At the proposed address, a three-bedroom brick and tile house, the respondent would be the sole occupant but liaison with the Sex Offender Management Squad revealed concern about the address because there are three primary schools within a 2 to 4 km radius and it is evident that young children live in other accommodation relatively close by. Ms Clements reported that the Sex Offender Management Squad had deemed the nominated address to be unsuitable and had expressed serious concerns over the risk that the respondent would pose to the community if he were to live there. If he were to be released on supervised programmes, the Department of Corrective Services would case manage his situation in collaboration with other agencies, but Ms Clements remained concerned about the capacity of Corrective Services and the Sex Offender Management Squad to mitigate the risks associated with his offending in that locality. Her position in this regard was maintained undiminished throughout her cross-examination.

93 Detective Sergeant Gwilliam is an experienced detective responsible for the case management of dangerous sexual offenders and, in that position, liaises with the Department of Corrective Services, the Department of Child Protection, the Department of Housing and Works and other government agencies for a co-ordinated governmental initiative to manage the higher risk offenders when they are released into the community. He stressed that it was not the function of the police to approve or to disapprove of the suitability of premises for the location of sexual offenders. The task of the Sex Offender Management Squad, which he supervised, is to appraise the environment and surrounds of the particular location with the benefit of information held by the police and not available to other agencies to identify potential risks. Detective Sergeant Gwilliam's report described the particular premises proposed, which had been used to house other convicted sexual offenders in the past, including a dangerous sexual offender, but he pointed out that such offenders who had been located in this accommodation in the past had a different history of sexual offending and had not been involved in sexual attacks upon children unknown to them or facilitated their crimes by ambush or by the use of violence, as had occurred with the respondent.

94 In the light of his review of this respondent's history, his pattern of offending and the reports which had been submitted to him, Detective Sergeant Gwilliam considered that the location of Mr Brown at these premises would constitute a risk to the public. He was not able to suggest any condition which would mitigate the risk posed by the respondent at this location to an acceptable standard. The details of this risk and the reasons for it appear from the environmental scan, exhibit 70, but cannot further be summarised without the risk of disclosing the address. It is sufficient to say that I accept that the report of Detective Sergeant Gwilliam does identify a number of potential risk factors to members of the public which appear to be significant were Brown to be accommodated there, and also to indicate that, in a practical sense, there is very little, if anything, which could be done to eliminate those risks or to reduce them to an acceptable level.

95 Detective Sergeant Gwilliam was cross-examined at some length dealing with the specific attributes of the particular accommodation and methods of dealing with other dangerous sexual offenders. It is not necessary to summarise this cross-examination for it is apparent that it did not in any way detract from the identification of risk factors to the public which would arise if Mr Brown were to be accommodated at the proposed location. The essential nature of these risks lies in the proximity of the premises to major suburban centres, its proximity to busy arterial traffic and pedestrian routes and the location of families with children in the near vicinity. Given the nature of Mr Brown's predatory behaviour towards children in the past, the risk of casual or coincidental meetings with children leading to the commission of offences would be ever present.

96 Mr Brown himself did not give evidence. There was, however, one affidavit tendered in support of the respondent. This is the affidavit of Jean McKenzie sworn 19 August 2010. Ms McKenzie is a clinical supervisor at the UCW Outreach Services and a clinical supervisor employed by that organisation whose role is to support prisoners whilst in custody and upon their release. She described out UCW Outreach Services had supported the respondent for approximately four years in prison before he was transferred back to New South Wales on remand for outstanding matters and how, after his return to Western Australia, UCW Outreach Services had been engaged with him since 25 May 2010. Ms McKenzie explained that as a result of the contact between UCW Outreach Services and the respondent it had developed a support release plan for him which would include:

accommodation (at the designated address) for an initial period of 6 months, starting from 26 August 2010;
transport from prison to that address;
contact and support helping the respondent setting up his home and making contact with the relevant Community Corrections Centre, banks, Centrelink and local transport system;
the provision of a phone number of a UCW Outreach worker to the respondent whom he could contact in case of any emergencies;
support from UCW Outreach helping the respondent to find constructive ways to use his time and, in doing so, putting him in contact with the appropriate outlets and institutions.

97 This was the proposal which was examined by the Department of Corrective Services and which was subject to consideration by Ms C Clements and Detective Sergeant Gwilliam.

98 Furthermore, in the course of the proceedings, counsel for the respondent and for the applicant had liaised over the terms of a possible proposed supervision order in the event that the court might decide to place the respondent on such an order. Because the terms of such orders are extensive and specific, it is impractical to repeat the terms in the text of these reasons or to attempt to summarise them. However, because the proposed terms give significant content to the role and effect of a supervision order, I am annexing an edited version of that supervision order at the end of these reasons and incorporate that as indicating the terms which counsel are agreed upon might be imposed by the court, were a supervision order to be made. The editing of the order has been conducted so as to exclude the address of the proposed residence and other addresses or indications which might suggest where that accommodation is located. The edited proposed terms are appendix 1 to these reasons.

99 The resolution of these proceedings, therefore, rests largely upon the conclusions which can be drawn from the case presented for the applicant and its features which emerged through the cross-examination of the applicant's witnesses.

Proof required for finding that a person is serious danger to the community

100 The material provisions of the Act were examined by Steytler P and Buss JA in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, a decision in which Murray AJA gave separate reasons for agreeing that the appeal should be dismissed. This examination and the ensuing principles were again set out by Buss JA in Italiano v The State of Western Australia [2009] WASCA 116 [31] - [41].

101 Before any order under s 17 of the Act may be made, it is essential that the court be satisfied and find that the offender is a serious danger to the community. Before any such finding that a person is a serious danger to the community can be reached 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)). The term 'serious sexual offence' has the meaning given by s 106A of the Evidence Act 1906 (WA) which consists of an offence under a section or chapter of the Criminal Code mentioned in pt B of Schedule 7 of the Evidence Act 1906 for which the maximum penalty that may be imposed is 7 years, or more than 7 years, or is an offence of attempting to commit such an offence.

102 The legislation requires that the court must be satisfied by acceptable and cogent evidence and to a high degree of probability (s 7(2)). This is said to be a standard that is greater than a finding on the balance of probabilities but which is less than a finding beyond reasonable doubt, but is otherwise incapable of further definition: GTR [28]. No challenge to that proposition was made in the course of these proceedings and, as I am bound by the decision in GTR, the disapproval consistently shown by the superior courts to a third or intermediate standard of proof arising at common law need not, on this occasion, be considered - see Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 170 and G v H [1994] HCA 48; (1994) 181 CLR 387, 399. These are, strictly speaking, neither civil proceedings nor criminal proceedings, but a hybrid of the two whose genome has not yet fully been revealed but which, nevertheless, are proceedings for which a specific statutory standard of proof has been prescribed by s 7(2), thus making recourse to analogies in other areas of the law of doubtful utility. So it has been said that this does not necessarily mean that the risk must be at some high percentage of probability - a risk may be less than 50% yet still be unacceptable. However, the court is required to identify what it is that constitutes the risk and what makes it unacceptable and then to consider whether or not those factors have been proved to a high degree of probability by acceptable and cogent evidence - GTR [34].

103 Once it is proved to the satisfaction of the court that there is an unacceptable risk of the kind described in s 7 of the Act, it will necessarily and inevitably follow that the respondent is a serious danger to the community: GTR [22].

104 It has been submitted by the applicant, and I accept, that a finding that there is an unacceptable risk that unless an order were made under the Act that the person would commit a serious sexual offence is an 'evaluative and predictive finding of fact': Italiano v The State of Western Australia [2009] WASCA 116 [4] (Pullin JA). As Buss JA said in Italiano [46], this description of an 'unacceptable risk':

... necessarily connotes a balancing exercise, requiring the court to have regard to, amongst other things, the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order), on the other, if an order is made.

105 In GTR Murray AJA explained [97] how the extraordinary powers provided by this legislation are intended to be exercised, not for the purpose of imposing additional punishment on an offender who has served the sentence imposed upon him or her and who has been discharged from that service, but for the ultimate purpose of protection of the community, not only by continuing to exercise control over the person the subject of an order, but also by providing for the care and treatment of the offender in the hope that by this means the danger posed by that individual to the community, or sections of it, will be reduced. As already noted, in deciding whether to find that a person is a serious danger to the community the court is obliged to have regard to the factors set out in s 7(3) of the Act which have already been mentioned in [76] above.

106 In Director of Public Prosecutions (WA) v Williams [ 2007] WASCA 206; (2007) 35 WAR 297 Wheeler JA [63] explained how 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.

This balancing exercise involves an assessment on the one hand of the nature of the risk and the consequences if it were to eventuate of the person committing a serious sexual offence again and the serious consequences to that person in the restriction of his liberty if the order were to be made.

107 It follows from s 7 and s 17 of the Act that if and when the court finds that the offender is a serious danger to the community, one or other of the two types of orders available under s 17 must be made or, in other words, that the court cannot decline to make such an order - GTR [51] and Williams [68] - [72]. In choosing between the orders to be made the paramount consideration is to be the need to ensure adequate protection of the community - s 17(2) but, consistently with that objective, the court should adopt the less restrictive alternative compatible with sufficient protection of the public: Williams [79].

108 The criterion of protection of the community being the paramount consideration applies to the choice of orders to be made under s 17. However, at the anterior point where the court is required to consider whether the person is a serious danger to the community as required by s 7(1) and s 7(3), the task is to make an objective assessment of whether there is, or is not, any such danger and, if so, whether it is serious. Performance of that exercise will, if correctly undertaken, ultimately achieve the legislative purpose of the protection of the community but that objective will only come to be addressed once those anterior requirements have been demonstrated, if they ever are. Put another way, the fact that a person has committed a serious sexual offence in the past does not necessarily connote that he or she represents a serious danger to the community that, unless an order under the Act were made, he or she would commit a serious sexual offence in the future: Director of Public Prosecutions (WA) v Narkle [2010] WASC 7 [13].

109 Moreover, once a finding has been made that an offender is a serious danger to the community, it becomes necessary to make one or other of the orders available under s 17. The paramount consideration becomes the need to ensure 'adequate' protection of the community, but this qualification itself entails a judgment between the adequate needs of the community for protection and the interests of the offender in maintaining at least some degree of liberty which, in turn, calls for an assessment of whether or not continuing detention or a supervision order should be directed. It will not always be the case, nor can there be any assumption that it must be the case, that the protection of the community will always favour a continuing detention order: Director of Public Prosecutions (WA) v Decke [2009] WASC 312; The State of Western Australia v Latimer [2006] WASC 235; Williams [79]; and Director of Public Prosecutions (WA) v Allen [2009] WASC 360.

110 Apart from some things such as the inevitability of death, the course of ageing and some other matters such as the progression or inevitability of certain forms of disease, there are few areas in which the course of future human behaviour can be predicted with reliability. Yet the course of human experience is sufficient to demonstrate that for certain persons who have regularly or repeatedly undertaken particular forms of conduct there is a likelihood of future repetition of that conduct and, with others, there are patterns of disposition towards particular types of conduct and, in some cases, towards forms of illegal conduct. Indeed, in many of the processes of education, organisation within large groups, discipline within military and other forces, the purpose is to control or ameliorate those tendencies or to channel activity and efforts towards particular purposes.

111 Where there has been criminal behaviour of a serious kind, particularly serious sexual offences which are so feared by the community and so harmful to the victims, the community interest is in isolating those individuals who have offended in the past of whom it can be concluded with sufficient confidence, that they represent such a serious threat to the community in the future that some form of restraint upon their liberty, beyond that contemplated by punishment for individual offences, is warranted. The difficulty is in reaching a judgment of such far-reaching consequences for an individual in a particular case. It is likely to be a rare occasion in which a judgment of that kind could be made with certainty, and that is recognised by this legislation which requires the court to be satisfied of the existence of an unacceptable risk that, if not subject to a statutory order, the person would commit a serious sexual offence by reaching the conclusion by acceptable and cogent evidence and to a high degree of probability. That test recognises that there cannot be absolute certainty and that such predictive judgments are usually, if not invariably, open to some degree of doubt. What is required is a judgment about the existence of an unacceptable risk which can be reached to a high degree of probability.

112 Accordingly, when undertaking the task imposed upon a court by this legislation, any judge will be fully appreciative of the difficulty or impossibility of reaching such a conclusion with certainty, and that any expressions of opinion ventured by others, however experienced or eminent, will usually be subject to some degree of limitation or uncertainty. That, however, does not eliminate the need to make a difficult judgment and to consider whether, in the particular case, sufficient proof has been offered to a high degree of probability to reach the statutory conclusions.

113 It becomes necessary to apply the legislative framework of tests to the evidence which has been presented in this case and, in doing so, to have regard to the criteria specifically identified in s 7(3).

114 In this case, both psychiatric reports are to the effect that the respondent remains at a high risk of committing a serious sexual offence and, in particular, a serious sexual offence associated with young female children whom he may encounter suddenly and without prior acquaintance, and to resort to violence in committing such an offence or offences. With some relatively minor reservations, both Dr Febbo and Dr Tanney were able to conduct lengthy and comprehensive psychiatric examinations of the respondent and neither suggested or implied that any lack of co-operation on the respondent's part impaired his ability to reach opinions on pertinent matters. Significantly, there has been no opposing or dissenting psychiatric opinion and, to the extent to which conclusions can be drawn from them, earlier psychiatric and psychological reports prepared for sentencing of the respondent for his previous offences have been consistent with the conclusions of both the expert psychiatrists appointed by the court. The same can be said of the review assessments of the respondent within the prison system following his intensive sexual prevention programmes and the reports of the dubious effect of those programmes after completion.

115 When it comes to information indicating whether or not the person has a propensity to commit serious sexual offences in the future, there is a consistent pattern of evidence that he has a habit of sexual deviancy, preoccupation with young girls and a history of paraphelia, exhibitionism, public masturbation and sexual personal self-indulgence. Since his youth he has had a pattern of sexual exhibitionism and sexual offences, steadily increasing magnitude. It is of particular significance that the offences which he committed in 1999 (see [12] and [15] above) were committed while he was under a suspended sentence of imprisonment for similar earlier offences and that the offences which he committed in 2004 were committed only a short period (within 6 months) after he had been released from prison for the sentences imposed by Blaxell DCJ in 1999. His internal assessments within the prison system and his discussions with the psychiatrists reveal inappropriate indulgence in sexual fantasies about young children and this has led to inferences that he is at a high risk of repeating this form of offending were he free to do so.

116 The observations already made reveal that there is a pattern of offending behaviour on behalf of the respondent. It is typically sexual exhibitionism with women whom he may find on the beach, in a park or in other areas, alone or in small numbers and, far more alarmingly, a pattern of seeking out young girls in the age group of 8 to 12, to seek to ingratiate himself with them, to display pornographic material, and then to engage them in acts of personal sexual gratification, if necessary, by force. His attempt to abduct one 8-year-old child at Broome and his offences with the two girls at Perth in 2004 are illustrative of this tendency and it is one which is recognised by the psychiatrists and which I am satisfied remains a significant and inadequately controlled tendency.

117 There have been efforts by the respondent to address the cause or causes of this behaviour although, it must be said, these efforts have been prompted by necessity or strong persuasion by undertaking sexual control programmes in the course of the prison system. These appear to have been less than wholehearted as the reports of the prison officials have revealed, with Brown initially refusing some programmes and then withdrawing or refusing to participate in others, believing that he had gained as much as possible from them. His is not a conclusion which is shared by the persons conducting the programmes and this limited degree of commitment to remedial forms of education or treatment is, I am satisfied, another facet of the respondent's personal disposition which itself constitutes a risk of reoffending. This history also demonstrates that while the rehabilitation programmes have had some positive effects on the respondent, they have not been as effective as expected and have not subdued or controlled the underlying problem.

118 The respondent's antecedents and criminal record have been stated. They are not encouraging. There is a long record of sexual offending of steadily increasing magnitude and, over the more recent years, the disquieting feature of this behaviour is his concentration upon young, vulnerable, unprotected and innocent children.

119 There is explicit evidence in the opinions of the psychiatrists that Brown remains at high risk of committing a serious sexual offence unless many features of his personality, sexual orientation and pre-occupations undergo significant change. Efforts to produce such changes in the past have not been fully effective and it is expected that it would take an extensive series of programmes over 6 months or a year, if not more, to produce change and even then change would depend on the degree of commitment and willingness of the respondent to develop suitable insight into his problems.

120 It need hardly be said that with a person of the respondent's tendencies as exhibited by his past behaviour and by the assessments of the psychiatrists and others sexual offending of the form which could reasonably be expected would represent great harm to the innocent victims of his offences and could cause a substantial community danger. It is really not necessary to elaborate upon how vital it is to take adequate precautions to prevent a real and serious danger of sexual offences being committed by a person such as the respondent with young female children in the community, nor how necessary it is to protect members of the community from that risk.

121 On the basis of the evidence, I consider that the applicant has shown that there is, and is likely to remain for the near future, an unacceptable risk that, if an order were not made under this Act, the respondent would commit a serious sexual offence. That conclusion leads to a finding that the respondent is a serious danger to the community and that follows as a matter of statutory language as the authorities which I have already examined explain. All the evidence points unambiguously to the same conclusion.

122 Consequently, it is necessary to consider which of the two forms of order under s 17 of the Act should be made in this case, the choice, as already stated, being between an order for detention in custody for an indefinite term and an order that the offender be subject to supervisory conditions considered appropriate.

123 In my view, the decision on this matter is obvious and inevitable and it is that there should be an order for detention in custody for an indefinite term for control, care or management. This conclusion is reached upon the basis of: the nature of the risk presented by the respondent; his history of offending; how quickly he has reoffended after being released in the past to the community; and his pre-occupation with sexual fantasies about adolescent or pre-adolescent girls which has continued in recent times. I am satisfied that the evidence has established that even if a suitable accommodation location could be found at which Mr Brown might live under close supervision and subject to control, without there being young children in the proximate locality, he would still represent an unacceptable risk to the community of reoffending in his present state.

124 As for the proposal that he be accommodated at the designated address proposed by UCW Outreach, I have concluded on the basis of the evidence of Ms Clements and Detective Sergeant Gwilliam, that that is an entirely unsuitable location for this respondent given the particular nature of his past offending and his individual risk pattern. I consider that for him to live there, even under the closest form of supervision which could be expected to be practically effective and upon the terms of a proposed supervision order such as has been produced in these proceedings and is annexed as an appendix, that his risk of reoffending and committing a serious sexual offence would be high, and so high as to be quite unacceptable.

125 In reaching these conclusions I fully realise that continuing detention for an indeterminate period will be a consequence of extreme severity for the respondent who has, by now, spent all but 6 months of the last 12 years in prison, but I balance that very weighty consideration against the risk that he would reoffend and commit serious sexual offences, and the impact that that would have on innocent and vulnerable members of the community. In this case, the balance comes down decisively in favour of the protection of the community and the making of an order that the respondent be detained in custody for an indefinite term.

126 Such an order will have the effect provided by s 25 and s 26 of the Act and will be subject to at least annual review in accordance with s 29. Because Mr Brown's custody has since 26 June 2010 been pursuant to orders made under the terms of this Act rather than to the sentences which had been imposed upon him and which he has served, the end of the first period of 1 year referred to in s 29(2)(a) will be 26 June 2011.

127 These reasons for making a continuing detention order are the reasons which the court is required to give under s 27(1) and are being given at the time that the order is to be made.

Sexual Offenders Act 2006

Investigation Act 2006

Director of Public Prosecutions (WA) v Allen

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (191 paragraphs)

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BROWN [2010] WASC 405 (23 December 2010)

Parties

Legislation Cited (2)

Cases Cited (6)