HEARD : 3-4 SEPTEMBER 2008, 11 SEPTEMBER 2008 & 6 OCTOBER 2008

Criminal law and procedure - Dangerous sex offender - Whether a serious danger - Turns on own facts

Dangerous Sexual Offenders Act 2006 (WA)

1 The Director of Public Prosecutions (WA) ('DPP') applies for an order that the respondent is a serious danger to the community and an order that he be detained in custody for an indefinite term for control, care or treatment.

2 Those orders are opposed by the respondent who also argues that if the court finds he is a serious danger to the community it should order that he should be subject to a supervision order.

3 The application was heard on 3 and 4 September 2008. The two psychiatrists appointed by the court, Dr Febbo and Dr Tanney, gave evidence and were cross-examined on their reports.

4 The State also called Adam Smith a Senior Community Corrections Officer who prepared a report in relation to possible supervision and the suitability of premises where the respondent might reside if released under supervision.

5 By agreement, subject to objection, a book of documents, prepared by the applicant, was tendered in evidence, each item in the book receiving an exhibit number corresponding with the index.

6 The respondent called two witnesses. Mr Annand Kamalesh is a clinical psychologist who has been treating the applicant since last year. Ms Diane Winter is the respondent's fiancé and the person with whom he would live if and when released.

7 At the end of the hearing, the court was advised that two relevant decisions of the Court of Appeal were due to be delivered the following Monday, 8 September 2008: DPP (WA) v GTR [2008] WASCA 187; Woods v The DPP (WA) [2008] WASCA 188. As the reasons in each of those decisions would have a bearing on the resolution of the present case, it was agreed to delay final submissions until Thursday, 11 September 2008, so that the decisions could be examined. On that date the matter was by consent further adjourned until 6 October 2008 when the arguments were concluded.

8 A finding that the respondent is a serious danger to the community is a finding under the Dangerous Sexual Offenders Act 2006 (DSO Act) s 7.

9 In DPP v GTR the court examined the concepts 'serious danger' and 'unacceptable risk'. Steytler P and Buss JA said:

In our opinion, the definition of 'serious danger to the community' in s 3, read with s 7 (in particular, s 7(1)), suggests a Parliamentary intention that if the court is satisfied that there is an 'unacceptable risk' of the kind described, then the person will necessarily and automatically be a 'serious danger to the community'. Although s 7(3) enumerates various matters to which the court must have regard in deciding whether to find that a person is a 'serious danger to the community', those matters must be relevant (alternatively, also relevant) to the court's determination of whether there is an 'unacceptable risk' of the kind described. [21]

10 The court examined what constituted an 'unacceptable risk' and agreed with the judgment of Wheeler JA in DPP v Williams [2007] WASCA 206; (2007) 35 WAR 297 at [63] - [65] and in particular:

[T]he 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. [63]

11 Under the DSO Act s 7(3) the court must have regard to a number of factors in deciding whether to find that a person is a serious danger and an unacceptable risk to the community.

Any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person (s 7(3)(a))

12 As indicated, two psychiatrists gave evidence by way of report and oral evidence. Dr Tanney has provided a number of reports under the DSO Act, and has previously been accepted as a witness with appropriate expertise, including by me. I find that he is a psychiatrist with expertise in the assessment of risk in dangerous sexual offenders. Dr Febbo is also well qualified as a psychiatrist. This is his first report under the DSO Act. I consider that he also is qualified to provide significant assistance by way of opinion on the assessment of risk.

13 Dr Tanney was able to achieve a greater rapport with the respondent and undertook five interview sessions over a total of nearly 11 hours.

14 Dr Febbo was able to achieve less rapport noting that only limited history was obtained from the respondent who became increasingly unwilling to participate in the interview. There were four interviews in all, although the first was truncated due to the respondent's previous appointment to play in a football game.

15 I am unable to conclude whether the respondent had an aversion to participating in the process or simply did not like Dr Febbo but do not hold any lack of participation against him. However, the result is that Dr Febbo's report relies extensively on other documentation, including various reports in the book of documents. Dr Febbo found there was no evidence to suggest the presence of a major psychiatric disorder. Dr Febbo's summary and opinion was as follows:

It is my view that at this point [the respondent] is a high risk of committing a serious sexual offence following release. It is fair to say that [the respondent's] failure to engage in the interview process resulted in the information obtained from risk assessment tools as being less than optimal. However, the high risk of reoffending was confirmed by all the risk assessment instruments used in this assessment and which have been based on a careful review of the documentation provided, and information, albeit limited, from interview with [the respondent]. [The respondent] has a number of static and dynamic factors that place him at high risk of reoffending. Whilst his static factors are largely unchangeable and cannot be influenced by treatment [the respondent] can address a number of the dynamic factors by accepting and engaging in treatment. [The respondent] has not engaged in the Sex Offenders Treatment Program, a substance abuse program, or a program directed towards general aggression over the last eight years.

16 Because of the limited opportunity for clinical assessment, less weight can be given to Dr Febbo's report and opinions. However, although less weight can be given to them, his reasoning towards the conclusion of danger is defensible.

17 Both psychiatrists had regard to a number of risk assessment tools. One of those was the Static 99 test but Dr Febbo acknowledged in evidence (ts 93) that he did not place greater importance on Static 99. He also used as tools the Hare Psychopathy Checklist (PCL-R), the Historical Clinical Risk-20 (HCR-20) and the Risk for Sexual Violence Protocol (RSVP).

18 Each tool has weaknesses described in other cases. In relation to Static 99 in particular, Dr Tanney also acknowledged the weaknesses in the course of his evidence.

19 Although some predictive tools, such as RSVP, purport to deliver customised results, they all deliver a statistical but generalised outcome.

20 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 unguided 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.

21 This is no doubt why, under the DSO Act, the provision of psychiatric opinion is mandatory, but is only one of many factors which a judge, with experience in criminal law and sentencing, will take into account.

Without effective, ongoing management (including monitoring and possible treatment) and the implementing of certain risk diminishing measures, this man is at virtually certain risk of further serious sexual offending, as estimated by available procedures and measures.

23 Although Mr Croucher made the bold submission that little if any weight could be put on the opinions of Dr Febbo and Dr Tanney, I cannot agree. While the weight to be attributed to a psychiatric report will vary from case to case, in this case I found both opinions to be instructive. For the reasons already expressed, in view of his lengthy interviews with the respondent, Dr Tanney's evidence is accorded greater weight by me.

24 I am satisfied that Dr Febbo and Dr Tanney did not solely rely on the results obtained by the risk assessment tools.

25 They also relied on the material reproduced in the book of documents and in particular psychological assessments undertaken previously, especially that undertaken by Ms Davies of the Sex Offender Treatment Unit on 30 July 2000 and reports by Ms Zuin.

26 In Woods v DPP [2008] WASCA 188 the admissibility of such reports was upheld.

27 Dr Febbo and Dr Tanney relied also on their interviews with the respondent which were by degrees (depending on the respondent's cooperation with the doctor) guided clinical assessments. The inter-relationship between the use of the tools and the guided clinical assessment is probably best encapsulated in a passage from Dr Tanney's cross-examination:

[If] you allow me to leave aside the Static 99 actuarial prohibition to use the 1999 and 2000 ones, we've got 1992, 1995, 1999 and 2000, but more than that we've got a minimal exposure period in the community to offend. If there had been four offences in 16 years we'd be going, 'All right, we need to consider that.' We've got four offences in the period of eight months. That changes it in terms of what one has to say is the likelihood of this happening again, and that leads us back into, 'Well, why did it happen?' It didn't happen because of drugs. It happened, I think there seems to be agreement, because when confronted by certain issues he can't handle them, he doesn't have the mechanisms to handle them, and that's what we've spent this morning talking about and that's when we come back to the issue about his risk. Until those are handled this man will remain at significant risk of reoffending, and that's not actuarial, that's based on a - it's based on the RSVP in part which is somewhat an actuarial and it's based on the three factor model which includes poor coping and poor inability to plan, but to me those reflect his psychological tools, his repertoire of skills and abilities and competencies that he has within him to handle what life is going to give him and I think those are deficient. 'Can they be fixed?' is the question you're asking me, and I have to tell you that [the respondent] asked me the same question and I will make to you - [the respondent] asked me the same question in our last interview. He basically said, 'Am I too far gone, doc, to be helped?'

That shows a bit of foresight?---I thought it was a very bold question and I thought it said to me - it validated for me why I spent 11 hours with him, because I thought we were able at least to have a conversation like that.

It shows he's worth helping, doesn't it?---It shows he - well, it shows that he's capable, if you give him a chance and work with him, of either being really, really good at what he does, playing cat and mouse, or that you can get through to him, and that's why I spent the time. I wanted to see if I thought and I could come to the court and say, 'I think Mr Kamalesh can do this because [the respondent] has the competency,' and I think [the respondent], in my belief, and I hope I have expressed that, has the competency and the motivation, but he may need lots of help and barriers along - lots of help and fences around him along the way. I want to share with you what my answer to him was, and I can find my words if you want but I will try to put it as clearly - and he can nod his head or not. I said he's pretty far down the path to not being able to do this. I have been doing work in - doing long-term psychotherapy with people, and that's what I call this. This is long term - leave out the word 'psychotherapy'. It's long term work readjusting and rebuilding people who have had difficult lives and where the lives have led them into all sorts of problems, whether it's suicide or substance abuse of trouble with the law. (ts 200 - 201)

28 I conclude that, in this case, I am entitled to place significant weight on the psychiatric opinion of Dr Tanney and some weight upon the opinion of Dr Febbo.

Any other medical, psychiatric, psychological or other assessment relating to the person (s 7(3)(b))

29 On 3 April 1995 Ms Cinzia Zuin concluded her report:

I am of the opinion that [the respondent] presents an extremely high risk of reoffending without intensive treatment. As such, I recommend his inclusion in the intensive Sex Offender Treatment Programme at Casuarina Prison.

30 On 13 July 2000 Ms Davies, in the report to which I have made mention, says:

[The respondent], despite engaging in sex offending treatment therapy in 1999, continues to present with significant treatment issues. The underlying issues that motivate his sexually violent offending behaviour appear to be deeply entrenched. He has disclosed that there are a numerous other victims of his sexual offending behaviour that he has not been convicted for. He has stated that he is not to be trusted and furthermore he is unable to trust himself ... He appears to have progressed from opportunistic or situational sex offending to premeditated and predatory type behaviours. All of the sex offences have involved high level violence. [The respondent] is assessed as being extremely high risk of reoffending in a like manner against either male or female child or adult.

31 On 22 September 2000 Ms Zuin made the following risk assessment:

Quite clearly when taking into account actuarial factors, [the respondent] is assessed as presenting a high risk of reoffending. This risk is further thought to be extreme given the range of deviant behaviour he disclosed during interview with Ms Davies, for which he has never been caught and the fact that he committed two serious sex offences within weeks of being released from prison for sex offences and while he was engaging in maintenance counselling.

32 The reference in those reports to the disclosure of other offences is a reference to a comment made by the respondent that he had offended against some 41 other people. In an interview with Dr Tanney the respondent said this statement was untrue, and said in the context of sex offender treatment therapy to outdo others. I am unable to decide on its truth and will ignore it.

33 Mr Kamalesh's report is of significance as he has conducted about 15 sessions with the respondent between October 2007 and August 2008. Although some comments were made by Dr Tanney, perhaps querying Mr Kamalesh's qualifications for dealing with a sex offender such as the respondent, I find that Mr Kamalesh's experience as outlined in his evidence (ts 108) is such that I may rely upon it. He is also accepted as an expert by the DPP. There is an immediate difference between the approach of Dr Febbo and Dr Tanney on the one hand, and Mr Kamalesh on the other. Unlike the psychiatrists, who examined the respondent to provide an opinion to the court, Mr Kamalesh is in a therapeutic relationship with a client. The principal aim of that relationship is the treatment of the client's issues, not an assessment of risk. Importantly, Mr Kamalesh is prepared to give a commitment to work intensively with the respondent in the future, something that the psychiatrists and Mr Kamalesh both agree is vital for risk reduction. In his evidence Mr Kamalesh was careful to reiterate a point he made in his report:

Unfortunately, we have not yet been able to adequately address the triggering emotional states, thinking and circumstances that led to the more recent offences, when [the respondent] was last released from prison. Therefore I cannot say with any confidence that his good intentions and personal maturation will be sufficient to prevent further offending.

[W]e would need, for any successful treatment, to be looking at what are the circumstances in terms of what's happening and his emotions and his thoughts which actually precede - and substances, perhaps, which precede his offending, therefore to identify risk things and work out ways of coping differently and those are things that we haven't got around to. (ts 110).

35 Mr Kamalesh does not know whether or not the respondent has insight into his risk factors because it is not a matter they have yet explored (ts 113).

Information indicating whether or not the person has a propensity to commit serious sexual offences in the future (s 7(3)(c))

In my view 'propensity' in this context means what it ordinarily means in the context of the criminal law. It means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder. [178]

37 That was the manner in which I understood the expression in my original judgment in DPP (WA) v GTR [2007] WASC 318 and is the definition which I apply to considerations under s 7(3)(c).

38 The previous offending is summarised by Dr Tanney:

There have been five sexual offending victims and one 'similar fact' crime in 1992. Physical violence was present in the majority of offendings to further the act and subdue his victim. He was intoxicated on substances in four of the six episodes. Victims were all white Caucasian peers or adult women save for the Geraldton 1994 offending against a 9 year old child.

The contribution of emotional distress involving proximate arguments with family/friends or with girlfriends is notable in 1989, 1994 and 2000 offendings.

The observation of opportunistic offending in 1987, 1990 becoming more premeditated in 1999 and 2000 was confirmed by [the respondent]. [BD 315 - 316]

39 The 'similar fact' crime referred to by Dr Tanney was an assault occasioning bodily harm which the respondent indicated was a precursor to sexual activity.

40 The respondent's criminal history, relevant to this application, is as follows:

41 On 13 November 1987, in the Children's Court, Geraldton, he was convicted of two counts of aggravated sexual penetration and placed in the care of DCS until the age of 18 years.

42 On 4 April 1990, in the Perth Children's Court, he was convicted of four counts of aggravated sexual assault and sentenced to detention for 28 months. He was also convicted of one count of deprivation of liberty and received 4 months' detention concurrent.

43 On 18 September 1992, in the Perth Court of Petty Sessions, he was convicted of one count of assault occasioning bodily harm and sentenced to 10 months' imprisonment.

44 On 26 March 1993, in the Perth Court of Petty Sessions, he was convicted of one count of escape legal custody and received 5 months' imprisonment, cumulative on other sentences.

45 He was eventually released on parole on 17 April 1994.

46 On 15 March 1995, he was sentenced to 10 years' imprisonment concurrent on each charge, with parole eligibility, for a series of five sexual offences committed on a child under 13 years (a 9-year-old) committed on 8 November 1994 (which is less than seven months after being released on parole on 17 April 1994).

48 Thirty four days after release on parole, on 16 December 1999, and 37 days later, on 22 January 2000, he committed a series of six offences (2 x deprivation of liberty, 3 x aggravated sexual penetration and 1 x aggravated burglary and commit offence in dwelling (aggravated sexual penetration, threat to kill and unlawful detention)) on two complainants in their own homes in Bunbury and Geraldton.

49 On 17 August 2000, in the District Court at Geraldton, he was sentenced to 12 years' imprisonment without parole.

50 The respondent was assessed at high risk of offending, an assessment I accept. Despite completing a sex offenders treatment program (SOTP), the respondent almost immediately offended upon release.

51 Counsel for the DPP also referred to portions of two records of interview made by the respondent. The first interview was made on 23 January 2000 and related to the crimes committed on 16 December 1999 in Bunbury. After describing the offence the interview concluded:

1. Just one thing that I wanna say.
2. Sure.
3. Um, yeah, (indistinct) I know what I done down there was wrong too. It was a stupid move. I only just got out of prison less than a month before it I think. What was the date - can you tell me the date (indistinct)
4. 16th of December.

1. Three days - out of prison. Um, ah, I been doin' it all me life I spose. Um, it - it's stupid. Um, I got a big problem. It's way big. It's too big. That female is - it's not her fault either. She got hurt and she (indistinct) um, I know it's too late to say sorry but, um, it's done and I am sorry for it. Um, she didn't deserve it because she's - she's - she was a - she's just a young girl. Just young. Didn't have much meat on her. So she got hurt. And that's what I done.

52 The other interview was on the same day and related to the crimes committed in Geraldton on 22 January 2000.

53 At the conclusion of that interview the respondent answered:

1. ... Um, I been doin' this stuff for years. Um, people say there's a cure for it but for what I got I don't think there is.
2. You're just got a very strong urge.
3. Well I dunno. Just cannot control it. I've done my months - I've just got out from doin' five years already. I've done nine months for a sex offender's treatment programme. I learnt all about how to - how to control it and urges and (indistinct) situations and all that sort of stuff, you know, and that was very good that course. I enjoyed it. But, um, I'm not blamin' the course cos this is - it's me. You know, that course it helped, you know, cos I was into kids before so that course really did help cos it changed me around and all that. It's just that I just done something stupid in Bunbury. Um, I knew it was stupid.

54 I am conscious that these statements were made eight years ago. The respondent has not, however, completed a SOTP in the meantime and his work with Dr Kamalesh is still in its formative stages

55 The respondent's history of offending as detailed, together with the other matters I have just outlined, abundantly establishes that the respondent has a propensity to commit violent sexual offences against females.

Whether or not there is any pattern of offending behaviour on the part of the person (s 7(3)(d))

56 As well as the respondent having a propensity to commit offences, there is a general pattern of offending. The offending tends to involve adult Caucasian women, latterly after some attempt to establish a superficial relationship. The respondent pursues his sexual outcome with violence.

57 Dr Tanney was asked about offending without counting the offending before the age of 18. He replied (ts 200):

I would think then we have there 1992 and that he's admitted was sexual in its intent, we've got 1995, and then we would have 1999 and 2000, so we would have a pattern of sexual offending at that point even if we leave out the childhood ones, so we've got a pattern that's established that something needs to stop it.

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 program (s 7(3)(e))

58 Clearly the SOTP that the respondent completed did not have sufficient impact to cause him to refrain from offending shortly thereafter. In the words of Dr Tanney (in cross-examination):

The point I want to make is that I think I understand the perspective that he had about the sex offender treatment program, and I go back to what I said a few moments ago, that he was, I think, devastated by the fact that he took this program. Ms Morfitt said he had done well. She said his risk had gone down to medium. She was providing him with counselling afterward. The day after he offended, he went to see Ms Morfitt.

Yes. 'What's gone wrong?' he was saying, effectively?---Exactly, and he simply did not understand that the process wasn't finished and that he hadn't - I won't elaborate, speculate on my hypothesis about how he operates psychologically any more than that, but he isn't even offered the opportunity for seven years. I would hope at some point in there he would have come to a conclusion and settled down and said, 'I don't want to do this,' and he's been saying since he was 14 that he doesn't want to do this, but that he feels internally driven to it, so he knew what I told you before, that the reasoning for this is an inner psychological process that he has. It's not a brain tumour, it's not head trauma, it's not substance abuse. It's that he has inner issues that he hasn't resolved that come out this way, so when he says, 'I know I need to handle these. Here is the way I think they need to be handled' - and they simply don't make that available to him ... (ts 190, 191)

...

I think Mr Kamalesh points it out in his report and he has also done so in evidence here, and I think you may have had this experience with him yourself by talking to him, that [the respondent] himself recognises, or at least takes the view that he's got to deal with his own victimisation, if you like, before he can have proper empathy with or understand the causes of his own offending?---Yes, but I think it's important to be aware that Ms Morfitt established this with him in 1999 and Mr Luoma established this with him in 1987, virtually the same discussion that he's having with Mr Kamalesh.

Yes, but he's now having it with a professional organised by him?---Okay, but he did have it with - I agree, he did not have what numerous people said, 'This man needs treatment and help,' okay, but I think it's unfair. I think Ms Morfitt provided professional treatment to him. You suggested he hadn't seen a professional and he was provided professional treatment and professional follow-up. (ts 192)

59 I accept that intensive SOTPs in prisons are limited. The respondent initially declined to join the SOTP although he later did agree to attend. I acknowledge the point by Mr Croucher that there was little incentive for the respondent to engage in a SOTP. He was serving a sentence which did not have a parole component and therefore was bound to be released at the conclusion of the sentence. The DSO Act was not passed until 2006. It is not, I think, realistic to expect a person such as the respondent to suddenly gain motivation to address his offending behaviour in circumstances where, from his perspective, the previous program had not worked.

60 I do not draw any adverse inference against the respondent in respect of this. As Dr Tanney points out, 'it would have required a move to the Greenough Prison ... it would have been virtually impossible because it meant he would have to change his security classification and that is a remarkably difficult thing to do'. Furthermore, as Dr Tanney said:

So we're left with saying that the offer that he has from the government about sex offender treatment programs is for a program that he can't figure out why it didn't work, and it should have because he did his best - and he did do his best - and he's saying, 'Why should I go back and do it again? Why don't I do something different?' and they say, 'Well, if you want to get out you have to do it,' and he fights them and says, 'Go away,' and later on because he does want to deal with this and he does want to leave prison in September 2007 he said, 'Yes, I will do it,' and again then at that point for institutional reasons it's not available, and here is where I think we have to say, 'This man now demonstrates how much he wants to address this issue.' Maybe we could say he's just doing it because he just wants out of prison, but I don't believe that. I think he's been consistent and true to himself in saying, 'I don't want to be this way any more. If I'm going to get out of prison in a year from now I don't want to do this again.' Also I think he enters into the agreement with Kamalesh in good faith. (ts 191)

61 It must be acknowledged that the respondent has only lately renewed his efforts to address his offending behaviour. However, I accept under this subsection that he has made genuine efforts to address some of the causes of his offending behaviour by commencing treatment with Mr Kamalesh. That treatment is therapeutic and may eventually deal directly with his sexual offending but, as Mr Kamalesh clearly acknowledges, it has a long way to go. The fact that the respondent has made these steps, together with the evidence of Ms Winter as to the relationship that the respondent has formed with her, persuades me that while he is, in the words of Dr Tanney, 'far down the road to being irretrievable' in the way he is living his life, there is nonetheless hope for the future.

Whether or not the person's participation in any rehabilitation program has had a positive effect on the person (s 7(3)(f))

62 It is simply too early to be able to conclude that the respondent's participation has yet had a positive effect. It is common cause that the respondent will require very intensive counselling over a period of years. The parties differ as to whether this is best conducted at this stage within detention or under supervision but that is a different issue. In respect of the issue under this subsection, I cannot conclude there has been a positive effect because of the limited opportunity for improvement so far. As Mr Kamalesh reports the process is in its early stages:

[The respondent] probably on half a dozen times has mentioned himself. Like he says things like, 'We're just getting started here, aren't we?' or, 'We've barely scratched the surface, haven't we?' and, you know, probably half a dozen times he's mentioned that spontaneously so there's a recognition. It doesn't guarantee we're going to get there, but it's a recognition on his part that in fact there are layers untouched. (ts 124)

63 The situation then is that the respondent has not undertaken a SOTP and is at the beginning of a long therapeutic intervention.

64 Clearly the earlier SOTP was ineffective. It is too soon to say whether the respondent's treatment with Mr Kamalesh will have a positive effect on managing the risk of his reoffending.

The person's antecedents and criminal record (s 7(3)(g))

In our respectful opinion, these provisions require the admission of evidence establishing the commission of prior sexual offences while a juvenile. If there is any conflict between them and the provisions of the Young Offenders Act to which we have referred then, in our opinion, the later provisions override the former to the extent of the inconsistency: Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1, 7 (Griffith CJ) [56]

However, I am of the opinion, having regard to the terms of all of the provisions to which I have referred, including particularly what follows from the operation of s 38(4) of the DSO Act, that the evidence of these Children's Court convictions was admissible in the proceedings under the DSO Act within the exception in s 190 of the Young Offenders Act. There was an obligation to disclose them to the CEO, an obligation upon the CEO to disclose them to the psychiatrists, an obligation upon the psychiatrists to have regard to them in making their reports, and therefore necessarily to disclose them in those reports, and an obligation upon the court under the various provisions of s 7(3) to which I have referred, to have regard to the reports and to the fact of the convictions. [113]

Albeit by slightly different reasoning, the Court of Appeal has unanimously held that Children's Courts convictions and the circumstances of the offending are admissible in applications under the DSO Act.

67 The respondent was born on 3 June 1973 and is now 35. He first offended at the age of 10 and offended as a child thereafter, culminating in offences for sexual assault in November 1987 and April 1990. He offended on release from detention before being sentenced for assault occasioning bodily harm on 18 September 1992, an offence as previously identified with a sexual overtone. He offended while he escaped and offended further before committing serious sexual offences as previously outlined.

68 The respondent's antecedents, along with his record, indicate that he has had very few occasions, since being an adult, where he has been out of prison and on every occasion shortly thereafter he has offended in a major way. His record is bad and his antecedents, by reason of his custodial imprisonment, are poor.

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; the need to protect members of the community from that risk ( s 7(3)(h), (i))

70 Section 7(3)(h) is a degree otiose because it is subsumed by the larger question posed under s 7(1)(i) 'the need to protect members of the community from that risk'.

71 Section 7(3)(h) is also circular by reason of s 17(2):

In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is the need to ensure adequate protection of the community.

72 To the extent that it is not otherwise covered in the determination as to whether the respondent is a serious danger to the community, I find on the evidence that there is a risk that the respondent will commit a serious sexual offence if not subject to a detention or supervision order. However, I reach this conclusion by my analysis of the risk of danger under the preceding subparagraphs.

73 I do not consider there is any other relevant matter.

74 The respondent is a serious danger to the community.

75 The evidence I have received is acceptable and cogent. It satisfies me to a high degree of probability that the respondent is a serious danger to the community if not subject to a continuing detention order or supervision order. I have set out my views under s 7(3) individually. Combining all those matters, my overwhelming impression is that at present, if some formal order is not made, it is inevitable that the respondent will soon offend in a violent sexual way. Such a prospect is unacceptable.

76 The DPP seeks a detention order. The respondent argues for a supervision order and places considerable reliance on the evidence of Mr Kamalesh, Ms Winter and Dr Tanney. I accept Ms Winter as a truthful witness and as a person who obviously cares deeply for the respondent. She has a realistic appreciation of the difficulties that are likely to be confronted by them. Although they are engaged, by necessity, they have not had an opportunity to experience what was described by counsel as 'courtship'. No-one knows how the respondent will react to the stresses and strains of everyday life. The respondent has not shown a strong commitment to giving up cannabis.

77 Because his work with Mr Kamalesh is still in its early days, the respondent is psychologically unprepared for the stresses and strains of normal living.

78 Rejection and stress have been precursors to his past offending. The respondent has not undertaken a SOTP during his current term of imprisonment. Although such courses are available in the community, I have reservations as to the respondent's ability to make use of them. A supervision order will necessarily be very restrictive. Mr Kamalesh was asked about the possibilities that the respondent might be released into a structured environment which would include doing a SOTP, supervision by the relevant authorities, and a continuation of the therapeutic relationship. His response:

I suspect steam will be coming out of his ears. I think he would not be that impressed with being that controlled. It would depend on how much it impacted on him. I think he would be quite willing to continue seeing me, I suspect. (ts 115)

79 Dr Tanney was prepared to concede the possibility of supervision but heavily qualified the possibility:

The question again is can we help him externally with tools, can we put fences around him so he doesn't do it, and the answer to that I think clearly is we can put up fences but he can jump over them. It has to be his choice to stay within the paddock that he's given. The question then is, can he do that. I have said I hope it's possible. I think with an immense amount of help and support, both in terms of externally and with someone to address these issues internally with him, that it's a possibility. But I want to first address one of the things that you said, because it's in the report as well, about why he went to see Mr Kamalesh. You said it was to deal with his relationship, to deal with issues that were happening in the prison and to deal with the experience of victimisation. It was all three, and Mr Kamalesh says this here. I don't think that that's possible. (ts 193)

80 Dr Tanney suggests that Mr Kamalesh and the respondent would have to work intensively. Mr Kamalesh has given that commitment. Dr Tanney suggests that Mr Kamalesh would need a supervisor to monitor his work. I am far from persuaded that such a course would be necessary. I see no reason why an experienced clinical psychologist would require supervision in the way suggested by Dr Tanney. This is not to deny, of course, the need, as Mr Kamalesh may see fit, to discuss and seek advice from colleagues but that is a different thing. However, the real issue is not whether Mr Kamalesh's work can continue (supervised or unsupervised) as well or better in the community than in prison. The real issue is the risk to the community.

81 Mr Smith, a Senior Community Corrections Officer, prepared a report in relation to supervision. He gave evidence and also dealt with the question of proposed accommodation. His evidence was not that of an expert but he provided factual information should a supervision order be contemplated. The accommodation which was proposed at the time of the report is not the accommodation now proposed. The proposed accommodation was close to a primary school, high school and park. Ms Winter has given evidence that upon concerns being raised as to the proximity of the premises to a school, she terminated the lease and has moved to an address in Upper Swan, nowhere near a school, on a semi-rural property.

82 The details of the proposed supervision order conditions are set out in Mr Smith's report (exhibit 46). They are restrictive conditions. Moreover, the respondent would separately have to comply with Ancor requirements under the Community Protection (Offender Reporting) Act 2004 (WA).

83 A fact in favour of the supervision order is the involvement of Ms Winter. She is older than the respondent and is his fiancé. She has a Bachelors Degree in Sociology and Legal Studies. She has worked for the Aboriginal Legal Service. My conclusion on her evidence is that she has a comprehensive knowledge of the respondent's crimes. In the last six years she has noted that the respondent has matured a lot and started to take responsibility for his actions. It is clear that there is a strong bond between she and the respondent. She seems to appreciate the task ahead:

I don't doubt for a minute it's not going to be easy. It's going to be hard, but we've gone the hard road for the last six years and we'll continue going the hard road for the rest of our life. It is going to be hard. There's no easy way around it. You know, there's going to be restrictions and - like you said, he's been in prison for eight years living with lots of people; I've lived on my own for years with no-one. I mean, just that adjustment for us as a couple to live together on its own is going to be a big adjustment. (ts 215)

84 Ms Winter does not tolerate the use of drugs and alcohol.

85 Ms Winter is prepared to accept the burden and responsibility that would accompany the respondent's release under supervision. I am quite satisfied that she accepts this burden because of her love for the respondent; a love she feels is reciprocated.

86 I accept also that the respondent is now taking preliminary steps through his involvement with Mr Kamalesh. I have also taken account of Dr Tanney's evidence about supervision. That said, my firm conclusion is that the risk to the community in releasing the respondent, following the completion of his sentence, is completely unacceptable at this stage. The only safe course is to order his continuing detention. His situation will have to be reviewed in a year and it may be that during that time significant progress will be made with Mr Kamalesh. The respondent may have been offered and taken part in a SOTP in the past. I say that, recognising the difficulties posed by the very different processes between such a program and the therapeutic intervention by Mr Kamalesh. I have taken account of the possibility of anti-libidinal medication in considering supervision, but I accept Dr Febbo's evidence is that this would be an adjunct to rather than the treatment itself.

87 Mr Croucher referred to Roadley (1990) 51 A Crim R 336 and Freeman v Harris [1980] VicRp 30; [1980] VR 267. In Freeman v Harris Murphy J said:

It is not open to the Court to punish an offender more, because he is ill, and because it is considered to be for his own benefit to try to cure him. The gravity of the offence must be the first and paramount consideration. (281)

88 In Roadley a sentencing judge, dealing with a person who was intellectually handicapped, concluded that because the offender needed help and there was a lack of appropriate treatment centres outside the prison system a prison sentence was appropriate. In quashing the sentence the court said:

His Honour was plainly of opinion that the applicant should not be imprisoned. Yet this is what the Judge did. He did so for two reasons. First, because he was satisfied that there was no appropriate social service assistance outside the corrections system available to cater for the applicant's needs. Secondly, he took the view that unless supervised and treated, the applicant would under the influence of uncontrollable impulses again be guilty of child molestation. In this prediction we think the Judge was undeniably correct. But neither consideration is a legitimate component to be taken into account in the determination of an appropriate sentence proportionate to the offence.

The first amounts to the surrender of the Court's duty to act judicially in order to supplement the community's social services which society has failed to provide in adequate measure. The second involves the imposition of preventative detention that goes beyond what is a sentence proportionate to the crime in order to safeguard the community from a perceived risk of a repetition of similar unlawful behaviour.

89 In R v Clarke (1975) 61 Cr App R 320 Lawton LJ said:

This Court readily understands why the Crown Court at Exeter found it impossible to deal with this appellant by way of a probation order. The picture which presented itself was one of a violent woman in her mid-20s who could not be controlled in an open hospital, one who clearly at that time was not fit to go out into the community without the prospect of further trouble. The judge and the magistrates were of the opinion that it was their duty to protect both the public and the appellant from herself by passing a sentence of 18 months' imprisonment. We have no doubt at all that they conscientiously felt that this was the best thing to be done. They fell into grave error in so thinking. There is some evidence that the attitude of the social services was, `We cannot cope with this woman, let the Courts cope with her.' The first thing to be said, and said very firmly indeed, is that Her Majesty's Courts are not dustbins into which the social services can sweep difficult members of the public. Still less should Her Majesty's judges use their sentencing powers to dispose of those who are socially inconvenient. If the Courts became disposers of those who are socially inconvenient the road ahead would lead to the destruction of liberty. It should be clearly understood that Her Majesty's judges stand on that road barring the way. The Courts exist to punish according to the law those convicted of offences. Sentences should fit crimes. The crime in this case was breaking a flowerpot in a fit of temper and doing damage to the extent of 1 pound sterling. (323)

90 When a judge is exercising a duty to sentence an offender these principles are, with respect, undoubtedly correct. But they have a very confined influence in an application under the DSO Act. When a court comes to choose between detention in custody or a supervision order, the court has already made a determination that the person is a serious danger to the community. One or other order must be made. In deciding which order, Parliament has mandated that the paramount consideration is to be the need to ensure adequate protection of the community.

91 In The State of Western Australia v Latimer [2006] WASC 235 Murray J said:

In my opinion, the Court would not make a continuing detention order if an adequate degree of protection of the community might be obtained by making a supervision order having regard to the terms of such an order as described by s 18 of the Act. A supervision order is for a defined period.

...

I turn then to the decision whether I should make a continuing detention order or a supervision order. I do so against the background of my view that, as the Act is to be properly construed, I should choose the option which is the least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community. [22], [49]

92 When a judge sentences an offender, the judge's duty is to determine the appropriate punishment for the crime having regard to the circumstances of the offender; no less, no more. However, when a judge is considering an application under the DSO Act s 17, punishment is not a relevant consideration. The respondent has already been punished for his crimes. What is relevant is the protection of the community. If the judge cannot be satisfied that the community is adequately protected by a supervision order then the judge must make a detention order. If there are no adequate facilities within the community to enable a supervision order to be considered as an acceptable risk then detention must be the default order.

93 Whether there is any scope for a judge to order close supervision and treatment when the State's commitment or ability to provide the same is suspect is a question that can await another day. In the present case, I am very firmly persuaded at this stage that no supervision order could provide adequate protection for the community. A detention order is the only appropriate order. The risk of serious sexual offending is simply too great notwithstanding the tendrils of hope that his engagement with Mr Kamalesh and his engagement to Ms Winter inspire.