DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- COMEAGAIN [2008] WASC 235 (22 October 2008)

DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- COMEAGAIN [2008] WASC 235 (22 October 2008) - WASC 2008 case summary — Zoe

[38]

[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)

[82]

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)

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DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- COMEAGAIN [2008] WASC 235 (22 October 2008)

Legislation Cited (2)

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