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[2013] WASC 403
General information, not legal advice.
Supreme Court of WA
2013-11-11
McKechnie J, Jenkins J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- DINAH [No 6] [2013] WASC 403
Criminal law and procedure - Dangerous sexual offender - Annual review - No new principles
Expressly decline to rescind the order for continuing detention
(This decision was delivered in draft and has been edited before publication.)
1 This is an annual review of detention under s 29 and s 31 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act). Mr Dinah seeks an order that he be released under a supervision order. The DPP seeks an order that Mr Dinah be further detained in custody for an indefinite term.
2 The relevant history of this matter is set out in a series of decisions: The State of Western Australia v Dinah [2009] WASC 123; Director of Public Prosecutions (WA) v Dinah [No 2] [2010] WASC 112; Director of Public Prosecutions (WA) v Dinah [No 3] [2011] WASC 130; Director of Public Prosecutions (WA) v Dinah [No 4] [2011] WASC 278; Director of Public Prosecutions (WA) v Dinah [No 5] [2012] WASC 29 and Director of Public Prosecutions (WA) v Dinah [2011] WASCSR 145.
3 For the purpose of this decision it is necessary for me to repeat some of that history and the various views of and conclusions reached by other judges who have considered whether or not Mr Dinah should be detained under the Act.
4 On 23 April 2009, McKechnie J found that Mr Dinah was a serious danger to the community and ordered that he be detained in custody: The State of Western Australia v Dinah [2009] WASC 123. His Honour said:
Each psychiatrist reports that the respondent is presently a high risk of reoffending. The other reports which the DPP has tendered, particularly psychological reports, tend to confirm that fact. While I could not find that he has a propensity to commit serious sexual offences in the future, there is a disturbing pattern in his offending over 25 years. That pattern involves alcohol and imposing himself sexually on women around him.
The respondent has made few efforts to address the causes of his offending behaviour. He has done some courses but I think it fair to say, as the applicant submits, that he remains an untreated sexual offender. Consequently, and bearing in mind the programmes that he has undertaken and then further offended, it is not possible to say that any rehabilitation programme has had a particularly positive effect on him [5] [6].
5 McKechnie J's opinion that it had not been proved that Mr Dinah had a propensity to commit serious sexual offences in the future is not one that I share. McKechnie J noted that the psychiatrists who had prepared court reports queried whether Mr Dinah would benefit from doing an Intensive Sex Offender Treatment Programme (ISOTP) due to his psychopathy but neither psychiatrist suggested that it would be a positive disadvantage. His Honour continued:
The opportunity of undertaking an ISOTP has not been availed by the respondent of until now. It is a significant fact in making the decision that the respondent is a person who has spent much of his adult life in prison and, in the short time when he has been out of prison, has persistently offended against women and yet has taken no positive steps to address the causes of his offending. Indeed all the reports would suggest that he has grossly minimised the extent of his offending.
Based on his past offending, alcohol is undoubtedly a high risk factor. I am not satisfied that the respondent has taken sufficient steps to deal with this issue either. Mr McKenzie argues quite persuasively that that is a risk that can be managed by monitoring in the community, probably by breath testing because alcohol tends to go from the blood. That is true but monitoring, even random visits, can only do so much.
I am completely unpersuaded that the respondent's proposed expressed method to deal with this, namely abstinence, is realistic. I am sure that at the moment he believes it is. I do not question his honesty or intentions in this regard but having regard to the other material I think abstinence would appear to be a completely unrealistic response. Nor do I think that community programmes will provide sufficient safety either. There has to be a fundamental change in the respondent, which disturbingly has not yet occurred. He is now about 48 years of age, and unless there is that change then I doubt that this risk can be adequately reduced or managed within the community by way of monitoring, even to the extent suggested by Mr McKenzie [9] [11].
6 Justifiably, McKechnie J was concerned that Mr Dinah had not taken the steps that were necessary to rehabilitate himself to a sufficient point where his risk of sexual reoffending could be managed within the community. I emphasise that his Honour noted the requirement for a fundamental change in Mr Dinah before his risk could be managed.
7 On 30 April 2010, at the first annual review of the detention order, McKechnie J expressly declined to rescind the detention order: Director of Public Prosecutions (WA) v Dinah [No 2] [2010] WASC 112. Mr Dinah had commenced an ISOTP but had not completed it.
8 On 9 May 2011, at the second annual review of the detention order, Commissioner Sleight rescinded the detention order and made a supervision order. His Honour's decision was supported by the DPP and Mr Dinah: Director of Public Prosecutions (WA) v Dinah [No 3] [2011] WASC 130.
9 Commissioner Sleight concluded that Mr Dinah had made some progress in rehabilitation. However, notwithstanding the changes, he was satisfied, applying the criteria of the Act, that Mr Dinah remained a serious danger to the community. His Honour continued:
Mr Dinah made minimal progress after he completed a Pathways treatment programme on 19 February 2010. In the report dated 4 March 2010 it states that Mr Dinah demonstrated limited treatment gains in relation to responsibility taking, coping/emotional regulation, problem solving, conflict resolution and relationship issues. It was recommended that Mr Dinah complete a Sex Offender Intensive Programme and repeat a Pathways programme.
Mr Dinah completed a Sex Offender Intensive Programme on 16 December 2010. In a report dated 6 February 2011 it was concluded:
'He is considered to have made moderate treatment gains given the challenges that such a process obviously posed for him. He made some shifts in terms of acceptance for responsibility, but there remains considerable evidence of minimisation. He has been assessed as a high risk of reoffending and clearly management of risk remains a significant challenge for him and those responsible for his supervision. However, he is considered to be more amenable to supervision than has been the case during his previous periods in the community.'
A report of Dr Wojnarowska dated 24 April 2011 noted that Mr Dinah's last 12 months' imprisonment were 'incident free' and noted the positive aspects of the report of the Sex Offender Intensive Programme. Dr Wojnarowska concluded:
'Mr Dinah's treatment gains, although not perceived as major, had been more significant than expected given his previous attitude and personality structure. His risk of reoffending remains high but the positive change in his manageability have been a significant negotiating factor.'
The report goes on to state Mr Dinah has achieved his potential and his risk of reoffending is not likely to be alleviated with continuous detention. The report concludes with a recommendation that a supervision order be considered. Dr Wojnarowska expresses the opinion that further detention may result in loss of gains and institutionalisation [14] [17].
10 Commissioner Sleight concluded that on the basis of the evidence he was satisfied that further progress was likely to be made in Mr Dinah's management by a community supervision order being made. He said that the danger of a continuing detention order was that there could be deterioration in Mr Dinah's condition and he may become institutionalised. He was satisfied that the community could be adequately protected by a strict supervision order.
11 Mr Dinah next came before the court on 28 September 2011 for breaching his supervision order. The supervision order had been made on 9 May 2011, for a period of five years, and it included 31 conditions. Condition 25 of the supervision order prohibited Mr Dinah from using illicit substances. Condition 29 prohibited Mr Dinah from using alcohol. Mr Dinah's compliance with the supervision order had been poor. He had breached the supervision order by using cannabis and alcohol.
12 Despite warnings, Mr Dinah has returned positive urinalysis results on nine occasions for cannabis and made three disclosures of alcohol consumption. In the past when Mr Dinah has committed sexual offences, alcohol had consistently been involved. Commissioner Sleight found that the use of illicit substances was likely to also be a risk factor in terms of the chances of Mr Dinah reoffending.
13 Psychological progress reports prepared by Ms Tina Marley, dated 25 August 2011 and 21 September 2011, indicated that initially Mr Dinah performed well on the supervision order. However, following a review of his risk management factors in August 2011, Ms Marley concluded that there was evidence that Mr Dinah was using cannabis on an ongoing basis. He was ruminating on the negative aspects of his life. Mr Dinah saw himself as a victim of a harsh community supervision regime. There was evidence of his reluctance to disclose reasonable information and there was an increased risk of hostility towards his former partner, due to a breakdown in their relationship.
14 In her report dated 21 September 2011, Ms Marley commented as follows:
It must be first noted that since his release on 9/5/11 Mr Dinah has presented significant challenges to those managing and supporting him in the community. Likely as a result of his personality features and associated antisocial attitudes, he has resisted authority, provided information of dubious truthfulness (or did not disclose information at all), was not open to interventions that addressed the underpinnings for offending or support for his adjustment to the community and viewed any interactions that were not amiable or compliant to his desires, requests or identity as hostile.
15 Ms Marley's report of 21 September 2011 suggested further interventionist programming if Mr Dinah was to be placed into the community under a supervision order. Ms Marley indicated that it was important that the court made it clear to Mr Dinah the consequences of his noncompliance. Her report dated 21 September 2011 included as follows:
Adherence to the conditions of any Order is going to present with significant challenges for Mr Dinah, but at this stage it appears too early to determine that the risk posed by him cannot be managed. However, the factors he presents with indicate he may need assertive management with natural consequences for noncompliance given he does not appear to have the internal mechanisms for self-management. He is potentially a risk to his partner given his offending history. An additional complicating factor is his personality and procriminal attitudes and beliefs particularly relating to intimate relationships. During his recent period in the community, he concealed information about his relationship, provided information of dubious truthfulness and demonstrated a tendency to become more hostile with supervision and supports as his risky behaviour escalated. Those managing him will therefore be mindful of changes in his demeanour and functioning for signs of non-compliance and poor coping.
Communication with Mr Dinah in prison since his remand in custody indicates that he is very keen to return to the community; and is contrite and mindful of the mistakes he recently made. I have discussed the above framework with him and he expressed a willingness to undertake these strategies. He will continue to receive close psychological involvement should he be released to the community.
16 On 28 September 2011, Commissioner Sleight concluded that Mr Dinah should be released on the same terms as the supervision order of 9 May 2011. However, due to his regular breaches of that order, his Honour amended the previous order so that the term of five years would recommence.
17 On 25 January 2012, Commissioner Sleight rescinded Mr Dinah's supervision order and ordered that he be detained indefinitely. The reasons for that decision are explained in Director of Public Prosecutions (WA) v Dinah [No 5] [2012] WASC 29. The immediate reason was Mr Dinah's multiple breaches of the supervision order. In early November 2011 he had failed to report to his supervising officer, lied about why he had failed to report, consumed alcohol, cut off the bracelet which was then monitoring his whereabouts, breached his curfew and failed to continuously reside at his address.
18 Whilst not wishing to question the seriousness of these breaches of his supervision order, I also note that Mr Dinah did not commit any unrelated offences, in particular sexual offences, whilst on the supervision order. Mr Dinah was arrested on 16 November 2011 in Northam and he has been in custody under the detention order for the last 23 months. For eight months of that period he was serving a sentence for offences of contravening requirements of his supervision order.
Past offending and behaviour on community based orders
19 Mr Dinah's record of convictions includes the following convictions and penalties for sexual offences. In the following summary I have added very brief details of the offending:
20 Mr Dinah also has many convictions for nonsexual offending. Some of his convictions are for offences of violence, being:
21 Mr Dinah has been released on parole on four occasions and has breached each parole order by committing sexual or violence offences. He also has three convictions for breaching bail.
22 Whilst in prison over the past 30 years, Mr Dinah has incurred a record of minor drug and disciplinary infractions. He has also been reported on a number of occasions for predatory sexual behaviour with other inmates. To his credit there has only been a single incident whilst he has been detained since November 2011 and that was for dishonesty. He is reported as currently being a polite and respectful prisoner. This improvement has to be tempered with the observation that Mr Dinah's behaviour in custody had also improved prior to his release in 2011 (see for example the report of Dr Wojnarowska, 24 April 2011, page 31). Despite the improvement at that time, Mr Dinah breached his supervision order within a few months of his release.
(1) When the court, on an application made under section 29 or 30, reviews a person's detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
(2) The court may, if it finds that the person subject to the order remains a serious danger to the community, either -
(b) rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.
(3) In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.
24 For the purpose of this review Mr Dinah was ordered by the court to undergo examination by one psychiatrist, Dr Salvatore Febbo. A report dated 9 September 2013 has been produced by Dr Febbo pursuant to this order. The report concludes as follows:
It was difficult to reconcile the history that Mr Dinah provided me in relation to the offending with information reviewed in the documentation. His history suggested considerable minimisation and denial of sexual offending to a point that has been noted in previous psychiatric evaluation.
In my opinion the following factors are significant in the offending.
Mr Dinah's offending is clearly linked with alcohol abuse and there is a history of alcohol abuse/dependence. When Mr Dinah was most recently in the community alcohol abuse remained a significant issue and led to breaches of the Supervision Order.
There is evidence to suggest the presence of major personality pathology. My findings on the Psychopathy Check List Revised was in keeping with the presence of psychopathy. It is also likely that Mr Dinah would fulfil the diagnostic criteria required for both a narcissistic personality disorder and an antisocial personality disorder. Stemming from this personality structure, factors such as impulsivity and a sense of entitlement facilitate the offending particularly when there is further impairment of impulse control and judgement through intoxication.
It is also likely that this personality structure, together with limited insight and a pattern of placing responsibility for his actions on others, are responsible for the limited gain that has been gained from treatment particularly treatment in a group setting.
It is also this personality structure that, in my view, contributes to the difficulties Mr Dinah has demonstrated in the context of supervision.
In my interview Mr Dinah was able to articulate relatively appropriate comments in relation to issues such as consent, the relationship between stress and noncompliance, and the impact of alcohol on the risk of reoffending. Whilst it is certainly positive that Mr Dinah has this intellectual understanding it is likely that, in the community, he will have considerable difficulty in putting this understanding into practice.
Having made the above comments, it is not my view that lengthening the time that Mr Dinah spends in custody will be associated with a decrease in his level of risk in the community. It may actually have the opposite effect by increasing stress and resentment and further substantiating Mr Dinah's view that he has been and continues to be unfairly treated.
In my opinion Mr Dinah would be at high risk of a further sexual offence if he is not the subject of a Detention or Supervision Order.
Considering all the information I have it would be appropriate to consider a Supervision Order that involves particularly frequent monitoring requirements.
25 Dr Febbo goes on to recommend that under a new supervision order Mr Dinah would be subject initially to almost daily supervision, individual psychotherapeutic counselling, counselling or treatment to address alcohol and cannabis abuse, a curfew, relatively frequent and random urinalysis and breathalyser testing and GPS monitoring.
It is acknowledged that the strict monitoring and supervision requirements are likely to be associated with a degree of stress and resentment on Mr Dinah's part; however, on balance, it is my view that regardless of this a Supervision Order requiring close monitoring is more likely to succeed than a Supervision Order that is less intensive.
27 Dr Febbo gave evidence at the hearing of the review. He reiterated his views. He said that he was recommending a supervision order for a period of 8 years. Essentially he is of the view that nothing in terms of treatment and rehabilitation will be achieved by detaining Mr Dinah in custody. He believes that with very close supervision and prompt reaction by the authorities to any breaches of the supervision order, the public can be adequately protected from the risks posed by Mr Dinah on a supervision order in the community.
28 Dr Febbo accepts that the supervision order and the implementation of its conditions will not rehabilitate Mr Dinah in the short to medium term but he is of the opinion that they will provide sufficient control over Mr Dinah to ensure that he does not commit a serious sexual offence. His view is that the breaches of the previous supervision order occurred when Mr Dinah was under stress, particularly relationship stress. Consequently, Mr Dinah was overwhelmed and unable to cope. Dr Febbo hopes that the longer term effect of a supervision order, experience of life on the order and individual psychotherapeutic counselling will assist in the rehabilitation of Mr Dinah. Dr Febbo is of the view that Mr Dinah has to be in the community, experiencing the stresses of ordinary life and receiving counselling in order for him to learn how to manage life in the community without reoffending.
29 Dr Febbo is also of the view that the one thing that Mr Dinah has learned from the last nearly two years in custody is that breaches of the supervision order will result in further detention and he is very motivated to avoid that.
30 Mr Ryan Bell, a clinical psychologist employed by the Department of Corrective Services to work with persons who have been declared to be dangerous sexual offenders, gave evidence. He also provided a dangerous sex offender treatment progress report dated 16 September 2013. His report outlines how, although Mr Dinah attended a sex offender maintenance program, the pathways program and had individual counselling whilst on his previous supervision order, he did not contribute in a meaningful way to them. Rather, his involvement was marked by defensiveness, minimisation and only a superficial engagement with treating professionals. He described Mr Dinah's participation in those programmes as 'generally poor'. He said that whilst Mr Dinah had a good cognitive understanding of the programme content he did not demonstrate that understanding during the course of the programmes. He said that Mr Dinah's performance represented reluctance or refusal to participate and a poor application of his good understanding of what he needs to do on his release.
31 After Mr Dinah was detained for breaching his supervision order, Mr Bell conducted a treatment assessment and he did not identify any treatment needs amenable to custodial psychological intervention. Principally, this seems to be because despite many previous opportunities having been given to Mr Dinah to participate in prison programmes he had either failed to take up those opportunities or when he did so, he failed to benefit from them.
32 Mr Bell noted that during his most recent period in custody, Mr Dinah was first transferred to Greenough Regional Prison and then to Albany Regional Prison, each move being at his (Mr Dinah's) request.
33 Mr Bell reassessed Mr Dinah's treatment needs on 8 August 2013. The only small change Mr Bell noted was that Mr Dinah is now able to articulate a small number of concrete, realistic strategies to cope with temptation in the community to drink, use drugs or place himself in situations where he would be in contravention of his order. He also acknowledged limited responsibility for relationship problems in the past and said that he would like to engage in relationship counselling.
34 Whilst Mr Bell remains of the view that Mr Dinah will not benefit from, and his risk of reoffending will not be reduced by, prison counselling, he is of the opinion that Mr Dinah and the community may benefit if he received counselling if he is released on a supervision order.
35 Mr Bell concluded that the most appropriate intervention for Mr Dinah is 'an assertive and negative consequence to noncompliance' with the conditions of a supervision order by rescinding the order and incarcerating Mr Dinah.
36 I have also received a community supervision assessment report dated 12 January 2012. This report states as follows:
He acknowledged full culpability for the various omissions that resulted in his eventual return to custody. Mr Dinah recalled that when he breached his curfew on 8/11/2011 he 'panicked' fearing that he would be immediately arrested and imprisoned. Mr Dinah accepted that in hindsight he was behaviour irrationally. He agreed that he should have dealt with the contravention by attending [supervision] as directed rather than choosing to abscond. Mr Dinah believed that his non compliance was also affected by his feelings of stress and anxiety, which he attributed to not coping with his partner's pregnancy. Mr Dinah also mentioned feeling 'pressured' to comply with the DSO Order. Mr Dinah disclosed that the combined impact of these factors resulted in him feeling as though he could no longer cope with his Order, and he subsequently chose to abscond to Northam.
37 A community supervision assessment addendum report dated 21 October 2013, provides information about accommodation which Outcare is prepared to provide for Mr Dinah in a Perth suburban area. The contents of the report were confirmed by its author, Ms Pauline Anne Hodge, in oral evidence. Although he has never lived in the area and had previously said that his preference is to live in rural Western Australia, Mr Dinah is willing to stay at the proposed address.
38 The Western Australia Police Sex Offender Management Squad (SOMS) has undertaken a desktop analysis of the proposed address. It is a unit in a block of public housing units. The only significant problems with the unit are that it is in close proximity to a number of liquor outlets and drug activity has been reported in the immediate vicinity. The liquor outlet issue can be dealt with by Mr Dinah being prohibited from going to those places and his GPS tracking device being programmed so that if he does the authorities will know of it. The potential for drug use can only be monitored by random drug testing.
39 If released to Outcare accommodation, Outcare will formulate an action plan to provide additional support. The plan will focus on assisting Mr Dinah to organise his own life rather than doing things for him. It will not provide formal counselling but it will provide brief intervention support.
40 If he was released on a supervision order, Mr Dinah would be subject to strict conditions such as GPS tracking, mandatory counselling, random alcohol and drug testing, a prohibition on consuming alcohol and illicit drugs and a curfew. His GPS tracking device would be set so as to trigger an alarm if he went into places, such as liquor outlets, or if he interfered with the device, such as by cutting it off.
41 Also before me is a letter which Mr Dinah wrote to McKechnie J, believing that he would be hearing this review. In the letter Mr Dinah promises that he has learned from the past two years in custody, that he will comply with all conditions of any future supervision order, that he will cooperate with all authorities who attempt to rehabilitate him and that he will not reoffend if released. He makes the point that although he breached the last supervision order, he did not offend in a sexual manner.
42 Mr Dinah remains a serious danger to the community. It is indisputable that there is a high risk that Mr Dinah will commit a serious sexual offence if he is not detained under a continuing detention order or released into the community without a supervision order, which contains strict conditions and almost daily contact with a person who is able to monitor him. The question for me is whether such a supervision order will sufficiently protect the community from such risk? In answering this question, I must apply the statutory principle that the paramount consideration is the need to ensure adequate protection of the community.
43 Dr Febbo and Mr Bell are of the view that Mr Dinah's risk can be adequately managed on a strict supervision order. Although, in fairness to them, I did not detect any great confidence in their opinions. Their views appear to be based on the following assessment:
44 Mr Dinah supports their view that he can be adequately managed on a supervision order, although he does not agree with the assumptions on which it is based. The DPP disputes that view and says that nothing has changed to prove that Mr Dinah's risk of reoffending is any less than it was when he was last released on a supervision order and history has shown that his risk could not be adequately managed in the community.
45 I make the following comments in relation to the dot points above. I have great respect for the view of Dr Febbo and Mr Bell. However, I believe that there are limits to the extent I can apply it. The first dot point is not relevant to my consideration. It would not be proper for me to release Mr Dinah because nothing could be gained by detaining him. The Act is clear. I am to detain Mr Dinah unless the community can be adequately protected by a supervision order. Similarly, the second dot point is of little relevance to my consideration. If Mr Dinah's risk of reoffending cannot be adequately managed in the community, the fact that continued detention may make it more difficult to release him after future reviews is not relevant to my decision. In essence, the third dot point says that counselling received in the community may assist Mr Dinah's rehabilitation in the longer term. However, there is no suggestion that it is going to help manage or reduce his risk of reoffending in the short to medium term, except by providing another opportunity to monitor him.
46 In my assessment it is only the last dot point which is a significant factor in my decision. I acknowledge that a supervision order will enable close monitoring of Mr Dinah and I would hope that it would substantially increase the chance of Mr Dinah being incarcerated before he committed any serious offence.
47 Unfortunately, after having given this matter much thought I am not of the opinion that a supervision order and the hope I have of its efficacy would adequately protect the community. In coming to this view I have taken into account the following matters:
48 I have also taken into account Mr Dinah's letter. Various experts have noted that during consultations and when doing courses Mr Dinah often says things which he has learned from previous courses and counselling and which are designed to make him look good. This tendency is also evident in his letter which strings together truisms and well-worn statements of good intent. I do not feel that in light of his past behaviour, I can put significant weight on his statements. In 2009 McKechnie J gave Mr Dinah the benefit of the doubt and said that he did not question Mr Dinah's honesty or good intentions in regard to his future plans. I regret that I am not able to give Mr Dinah the benefit of those assumptions. I strongly suspect that Mr Dinah is prepared to say whatever he thinks is necessary in order for him to be released, whether or not he believes that he can or will be able to comply with the conditions of a supervision order once he is released on it.
49 Accordingly, I expressly decline to rescind Mr Dinah's continuing detention order. In fairness to Mr Dinah, he should be given the opportunity to participate in rehabilitative programmes before the next annual review.