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[2015] WASC 249
General information, not legal advice.
Supreme Court of WA
2015-07-13
Simmonds J
Original judgment source is linked above.
(This judgment was delivered orally on 4 June 2015 and has been edited against the transcript.)
1 This is an application under Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) s 8 (the present application). The present application is for orders under s 14 and s 17(1). The present hearing is for orders under s 14. The present hearing is called in the DSO Act a preliminary hearing, the term I will employ henceforth: see s 3(1) 'preliminary hearing' read with s 11(1).
2 The preliminary hearing came on first on 27 May 2015. It was adjourned to allow for the late appointment of a legal representative for the respondent. The preliminary hearing came back on 29 May 2015. It was further adjourned to 2 June 2015 to allow for the reception of a completion report in respect of a sex offenders programme Mr Dodd had completed in December 2014. At the 29 May 2015 hearing, the occasion was taken to admit certain matter into evidence, including that report, by consent.
3 At the conclusion of the hearing of 2 June 2015, I reserved my decision for delivery orally on 4 June 2015. I did this in view of submissions put to me at the hearing on 2 June 2015, particularly on the evidence represented by that report.
4 In these reasons, I first review the statutory background to the present application. I then describe the nature of the materials for the preliminary hearing and what may occur at that hearing.
5 I will then describe the law applicable to what may occur at the preliminary hearing and apply that law.
6 The final section of these reasons describes my conclusions and the orders I would make.
The statutory background to the present application
7 DSO Act s 8(1), (3), (4) and (5) provides as follows:
(1) The DPP may file with the Supreme Court an application for orders under section 14 and section 17(1) in relation to a person (the offender) who is under sentence of imprisonment wholly or in part for a serious sexual offence.
...
(3) If the person under sentence of imprisonment is in custody, the application cannot be filed unless there is a possibility that the person might be released from custody within the period of 6 months after the application is made.
(4) The application filed with the court must -
(a) state the orders sought; and
(b) be accompanied by any affidavits to be relied on by the DPP for the purpose of seeking an order or orders under section 14.
(5) The DPP has to cause the offender to be given, within 2 days after the application is filed, a copy of the application and any affidavit to be relied on by the DPP.
8 The present application specifies the orders sought as '[o]rders under s 14 and s 17(1) of the [DSO Act] in relation to the Respondent, pursuant to s 8 of the [DSO Act]' and was accompanied by an affidavit to be relied upon by the applicant: see s 8(1) and s 8(4). As will be seen, the applicant has since filed a further affidavit. As I have already noted, further material has been tendered into evidence. However, it is not contended there has been no compliance with s 8(1) and s 8(4).
9 The respondent is a sentenced prisoner serving his term for seven counts of sexual penetration of a child under 16 years who he knew to be a lineal relative, contrary to Criminal Code (WA) (Code) s 329(2); one count of indecent dealing with a child under 16 years of age whom he knew to be a lineal relative, contrary to Code s 329(4); and one count of rape, contrary to former Code s 326. It is not in contest that each of those offences is a 'serious sexual offence' within DSO Act s 3(1) read with Evidence Act 1906 (WA) s 106A 'serious sexual offence' (a) and (b): see DSO Act s 8(1).
10 The respondent's sentence expires on 24 August 2015 next, while the present application was 'made' on 19 May 2015, which means that DSO Act s 8(3) is met.
11 Although I do not have an affidavit or other evidence to that effect, it is common ground that the respondent was served with a copy of the present application and the first of the two affidavits relied upon by the applicant within two days after the present application was 'filed': see DSO Act s 8(5). No objection is taken to the other affidavit on service grounds. I reach the matter of the further material below.
12 I consider the present application to have been properly made.
13 However, I return below to the matter of the timing of the present application raised with me by counsel for the respondent.
14 There are two affidavits of Susan Markham on which the applicant relies.
15 There is an affidavit of Ms Markham sworn 18 May 2015 with annexures. The annexures to the Markham affidavit of 18 May 2015 include criminal histories for the respondent from this State, South Australia and the Northern Territory; and documents providing information, including sentencing transcript, with respect to offending by the respondent. The annexures also include various reports on the respondent.
16 There is a further affidavit of Ms Markham sworn 21 May 2015 with one annexure providing sentencing information on the respondent.
17 For the requirements for such affidavits, see DSO Act s 13. No objection was taken to the contents of any of the Markham affidavits.
18 The further material was made exhibits 1 to 3 by consent at the hearing of 29 May 2015.
19 Exhibit 1 is a Program Completion Report for an Intensive Sex Offender Treatment Program (ISOTP) at Bunbury Regional Prison. The programme finish date is given in exhibit 1 as 4 December 2014. It was common ground that exhibit 1 is not taken account of in either of the Markham affidavits.
20 Exhibit 2 is a single page document entitled Prison Fellowship Australia Sycamore Tree Project. It describes in outline 'an intensive 8 12 week inprison faithbased program that brings groups of crime victims into prison to meet with groups of unrelated offenders', to 'talk about the effects of crime, the harms it causes, and how to make things right'. I understood that the respondent had completed that programme in 2010 or 2011. It was common ground that his completion or indeed undertaking of the programme was not taken into account in either of the Markham affidavits. However, I was not told more about that undertaking or completion, and no emphasis was put upon either in submissions put to me by either counsel. I put those matters aside accordingly, for my purposes, save in this respect. I consider exhibit 2 confirms what appears in other material before me that the respondent has displayed while a sentenced prisoner a will to rehabilitate himself.
21 Exhibit 3 is a Program NonCompletion Report for the Pathways Program showing the last session registered 26 April 2013. It will be seen that account was taken of that report in one of the reports annexed to the Markham affidavit of 18 May 2015, Annexure P.
22 The respondent may file affidavits for the preliminary hearing: see DSO Act s 12. However, no such affidavits were filed.
23 The DSO Act provides that the 'main purpose' of the preliminary hearing is to decide whether the court is satisfied that there are 'reasonable grounds for believing the court might, under s 7(1), find that the offender is a serious danger to the community': s 11(3).
24 If the court is satisfied in terms of DSO Act s 11(3), two results must follow, and a further result may follow.
25 The first result is that the proper officer of the court must fix a day for the hearing of the application for a 'Division 2 order'. A 'Division 2 order' is an order under DSO Act s 17(1)(a) or (b): see DSO Act s 3(1) 'Division 2 order' read with 'Division 2 continuing detention order' and 'supervision order'. It will be recalled that the present application includes an application for such an order: see s 14(1).
(1) If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may -
(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.
27 An order under DSO Act s 17(1)(a) is a 'Division 2 continuing detention order': s 3(1) 'Division 2 continuing detention order'.
28 An order under DSO Act s 17(1)(b) is included as a 'supervision order' under s 3(1) 'supervision order'.
29 The second result is that the court must order the offender undergo examination by two psychiatrists named by the court for the purposes of them preparing reports required by DSO Act s 37. These are reports that are to be used at the hearing of the application for a Division 2 order: see s 14(2)(a).
30 The third result is that the court 'may' where (as is common ground here) the respondent is in custody and might otherwise be released from custody before the application for a Division 2 order is 'finally decided', order the respondent be detained in custody for a period stated in the order: see DSO Act s 14(2)(b).
31 The applicant provided a minute of proposed orders and the respondent provided a minute of proposed additional orders. The effect of the latter was to vary the former in some respects.
32 Subsequently, at the hearing of 2 June 2015, I was provided instructions from which it was possible for the court to prepare a 'Minute of [Proposed] Orders made by the Honourable Justice Simmonds on 4 June 2015', a document which I was told by both counsel had the effect of consolidating the two other minutes with amendments, and represented an agreed set of proposed orders were I to attain the satisfaction in DSO Act s 14 and determined to make a s 14(2)(b) order.
33 The most recent minute, which I call the Consolidated Minute of Proposed Orders, reads as follows:
The applicable law: attaining the satisfaction under s 14
34 Before a court dealing with an application under the DSO Act may find a person is a 'serious danger to the community', the court has to be satisfied that 'there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence': DSO Act s 3(1) 'serious danger to the community' read with s 7(1).
35 The Director of Public Prosecutions (WA) (DPP) has the onus of satisfying the court as just described by 'acceptable and cogent evidence' and 'to a high degree of probability': DSO Act s 7(2).
36 In deciding whether to find a person is a serious danger to the community, the court must have regard to a list of specific items: see DSO Act s 7(3), listing the items as s 7(3)(a) (j).
37 There is authority on how a judge should understand the requirements for attaining the satisfaction in DSO Act s 14 which counsel and I have identified. It will be seen that the authority is made up of decisions of a judge of coordinate authority to my own, and so do not bind me. However, I should follow those decisions unless I consider they are plainly wrong: see Re York Street Mezzanine Pty Ltd (in liq) [2007] FCA 922; (2007) 162 FCR 358 [22] (Finkelstein J). I do not consider any of the decisions to be plainly wrong.
38 The principles I extract from the authority on how a judge should understand the requirements for attaining the belief in DSO Act s 14 are these.
(1) At a preliminary hearing the judge must have a belief in the possibility that a later court will be satisfied to a high degree of probability that a person is a serious danger to the community: that belief is the threshold that must be crossed before a judge can order the respondent to undergo examination by two psychiatrists for them to undertake an evaluation of the respondent: Director of Public Prosecutions (WA) v Free [2010] WASC 255 [11] (McKechnie J).
(2) Although DSO Act s 14 directs attention to s 7, and necessarily to s 7(3), it is conceivable a person who may satisfy a criterion representing only one of those listed in s 7(3) may be the subject of a Division 2 order; and so, even in the absence at a preliminary hearing of any reports from a psychiatrist or other medical, psychiatric or psychological assessment, and on the basis of an offender's criminal record, there might be reasonable grounds for concluding a court might be persuaded that the offender is a serious danger to the community: Director of Public Prosecutions (WA) v Ugle [2014] WASC 58 [16] [17] (McKechnie J).
(3) However, reasonable grounds for such a conclusion will ordinarily require more than a simple recitation of offending behaviour; an assertion without proper evidential foundation that an offender presents a greater risk simply because, for example, they deny the offending for which they have been sentenced: Director of Public Prosecutions (WA) v Wesley [2014] WASC 125 [49] (McKechnie J).
(4) For the court to form that conclusion there must be sufficient facts or circumstances to ground in reason an inclination towards the proposition under review: Director of Public Prosecutions (WA) v Samson [2014] WASC 199 [20] (McKechnie J).
The applicable law: making an order under s 14(2)(b)
39 It is not in contest before me that the power to make the order is discretionary. There is authority on the exercise of the discretion in Director of Public Prosecutions (WA) v Allen [2006] WASC 160 (Blaxell J), a decision of a judge of coordinate authority to mine. I should follow that authority as I do not consider it to be plainly wrong.
40 It may be noted that the court may, instead of determining whether or not to exercise the discretion to make an order within DSO Act s 14(2)(b), adjourn the preliminary hearing so far as that determination is concerned. Such an adjournment might be on the basis of a personal undertaking by the respondent to the court that on their release they would comply with the stipulated conditions in the undertaking. Such conditions could include supervisory conditions and other requirements. On any breach of such a condition the preliminary hearing could quickly be relisted and an order under s 14(2)(b) made: see DPP v Allen [60] [61], [63].
41 However, I should indicate it is not clear to me such a relisting could occur once the date for the commencement of the hearing of the application for a Division 2 order had arrived. Therefore, it would seem to me that if the preliminary hearing were adjourned as indicated, a date should be fixed for its resumption prior to that commencement date. That would be subject to any earlier relisting for breach of condition in the personal undertaking.
42 I extract the following principles from DPP v Allen, being the three factors referred to there to guide the exercise of the discretion if it is enlivened:
(1) One factor is the relative strength of the applicant's case that the respondent represents an unacceptable risk to the community and may commit an offence before the application for a Division 2 order can be finally heard: [62].
(2) Another factor is the extent to which the court can be confident any such risk would be sufficiently minimised by the respondent's adherence to the supervisory conditions and other requirements of their personal undertaking: [63].
(3) Still another factor is the consideration, fundamental to our system of justice, of the undesirability of depriving a person of their liberty prior to the application for a Division 2 order being finally determined: [64]. As Blaxell J explained in that paragraph:
In the event that the court ultimately dismisses the application or alternatively makes a supervision order, any interim detention of the respondent will have been unnecessary and possibly damaging to the long-term interest that that community has in him maximising the chances of future rehabilitation.
43 It may be noted that the grant of the application for orders under DSO Act s 14(1) and (2)(a) was refused in each of DPP v Free and DPP v Samson. It may also be noted that orders were made of those sorts, but a decision not to make an order in terms of s 14(2)(b) was arrived at, in The State of Western Australia v Narrier [No 1] [2008] WASC 157 (Murray J); and an order adjourning the preliminary hearing without making a determination under s 14(2)(b) was made in DPP v Allen.
44 I deal first with whether I am satisfied there are reasonable grounds for the belief that a court might under DSO Act s 7(1) find the respondent is a serious danger to the community. I rely here on the affidavits of Ms Markham, exhibits 1 to 3, and the submissions of counsel.
45 I begin with the respondent's criminal history, both in this State and elsewhere. I then refer to reports for the respondent at various times in connection with the sentencing of him, being reports of a presentence kind and from a psychiatrist, as well as referring to matter drawing from a report on him by a psychologist. I refer also to a report from a senior Community Corrections officer for the purposes of the assessment of the respondent for parole, a report which addresses programmes he had embarked upon up to the date of the report, 18 July 2013.
46 I then refer to exhibits 1 and 3. I have previously indicated what I take from exhibit 2.
47 I should emphasise I have no other materials of the kinds referred to in DSO Act s 7(3).
48 I follow the descriptions of the respondent's criminal history in the Markham affidavit of 18 May 2015. I leave aside, however, the respondent's time in custody on a fine default warrant. I also leave aside sentencings in this State for trafficrelated offending, disorderly conduct offences, an offence of being on premises without lawful excuse, and two offences of aggravated assault, for none of which the respondent received a custodial sentence.
49 The respondent's date of birth was 4 February 1961.
50 The respondent's first sentencing, with those exceptions, was on 16 March 1983 by Northampton Children's Court, for the offence of aggravated assault. A term of imprisonment of 1 month was imposed from that date. The date of commission of the offence was not apparent to me. No further details of the offence were provided to me.
51 The respondent's next sentencing, with those exceptions, was on 21 February 1997, by the Darwin Court of Summary Jurisdiction in the Northern Territory, for an offence of indecent treatment of a child under 14 years of age. The respondent pleaded guilty. He was released on a good behaviour bond.
52 The offence was committed on 25 November 1992, when the respondent was 31 years old. The circumstances of the offence were as follows (Markham affidavit of 18 May 2015 [11]):
The Respondent was sleeping on a mattress with his children, including the victim, his 11yearold biological daughter, [name suppressed]. The Respondent put his hand down the victim's pants and rubbed her vagina in a circular motion over her underpants for a short time. The victim told her mother the following morning. When he was interviewed by the police the Respondent said he was under the influence of alcohol and cannabis and had no recall of the incident, but did not dispute his daughter's allegation.
53 The respondent's next sentencing, with those exceptions, was on 1 April 2003, also by a court in the Northern Territory, for an offence of indecent dealing with a child under 16 years of age. He pleaded guilty. He was sentenced to 6 months' imprisonment, conditionally suspended for 2 years.
54 The offence was committed between 1 June 1997 and 31 July 1997, when the respondent was 36 years old. The circumstances of the offence were as follows (Markham affidavit of 18 May 2015 [12]):
At about 5 AM on the morning the Respondent entered the bedroom of his 12yearold stepdaughter, [name suppressed]. He lay on the bed next to her, tried to kiss her and inserted his tongue in her mouth. She turned her head in an effort to stop them. The Respondent rubbed his groin against the victim's thigh and tried to kiss again, but she pushed him away. The Respondent then left the room but came back shortly after and apologise to the victim. A complaint was made by the victim on 5 May 2001.
55 The respondent's most recent sentencing, being the sentencing following which he remains in custody at present, was on 29 April 2011, by the District Court in Perth. He was sentenced for nine offences, being the nine offences of rape, sexual penetration of a child relative, and indecent dealing with a child relative, to which I referred at the commencement of these reasons. He pleaded guilty to all of this offending. He was sentenced to a total effective term of imprisonment to be immediately served of 5 years and 3 months, backdated to 25 May 2010.
56 The rape offence was committed on a date between 31 August 1983 and 2 September 1984, when the respondent was 22 to 23 years old. The victim was the respondent's 24yearold halfsister. The circumstances of the offence and their disclosure were as follow (Markham affidavit of 18 May 2015 [10]):
[T]he victim was staying with the Respondent and his then partner in Boulder, Western Australia. Approximately one week into her stay that Respondent came home alone one night and got into bed with the sleeping victim. He was intoxicated. Despite her protests he pulled down her underwear and sexually penetrated her for 5 to 10 minutes. The victim never reported the offence to the police. In the course of his interview with police on 24 May 2010 the Respondent admitted to this earlier offence.
57 The eight remaining offences were committed between 1 June 2009 and 1 May 2010. The victim in each case was the respondent's then 6yearold granddaughter. The circumstances of those offences and their disclosure were as follow (Markham affidavit of 18 May 2015 [13] [14]):
Between June 2009 in May 2010 the Respondent was living, intermittently, with his daughter and granddaughter in Perth. On 21 May 2010 the Respondent confessed to his daughter that he had been sexually abusing his granddaughter. The Respondent subsequently admitted himself to the Mental Health Unit at Swan Districts Hospital. On 24 May 2010 the respondent left the hospital and went to Midland Police Station where he participated in a video recorded interview and admitted the offences committed against his granddaughter as well as the offence committed against his half-sister between August 1983 and September 1984.
In his video recorded interview with police, the respondent admitted to 8 offences of sexual penetration against his granddaughter, including digital penetration, penile penetration and cunnilingus.
58 I also note the following convictions and sentencings in the Northern Territory for offences of violence against women, predominantly his female partners (Markham affidavit of 18 May 2015 [16] [18]):
The first offence was committed on 6 November 1991 at Bulman Outstation in the Northern Territory. The Respondent grabbed the victim, [name suppressed], by the shoulder and shook it, leaving some slight bruising. [She] was not in a relationship with the Respondent. The Respondent was charged and unlawful assault and later released on a $500 good behaviour bond.
Between 1 December 2000 and 5 December 2000 the Respondent contravened a restraining order by entering the residence of the protected person, [name suppressed], and their children, in the early hours of the morning whilst armed with a knife. The Respondent lay on top of [her] and pushed the knife into her forehead, causing a cut. On 6 February 2001 the Respondent entered the same residence by smashing, and then climbing through, a rear window. [She] fled her home in fear. The Respondent removed his children from the residence for several hours before returning them. On 8 May 2001 he was sentenced to 3 months' imprisonment, conditionally suspended, for three offences arising out of these incidents.
On 9 June 2008, while armed with a meat cleaver, the Respondent threatened to kill [name suppressed], a former partner with whom he shared one young child. The Respondent kicked [her] to the side of the head and, in the course of the same incident, committed similar acts against her sister, [name suppressed]. The Respondent's young son was present during the incident. Further, on 7 January 2009, the Respondent contravened a violence restraining order when he went to the residence of [the former partner] where he verbally abused her and smashed a pot plant. On 12 September 2009 the respondent was sentenced to a total of 9 months' imprisonment, conditionally suspended, for the two offences arising out of these incidents.
59 It was put to me for the respondent that these matters had little or no relevance to the preliminary hearing, as they did not go to the risk of a serious sexual offence. I disagree. It seems to me they go to matters of self-regulation to which the latest report on the respondent, in exhibit 1, draws attention as a specific treatment need for him. I return to that aspect of that report and his progress in that regard below.
60 I turn now to reports for the respondent at various times, or matter derived at least in part from those reports as follows (Markham affidavit of 18 May 2015 [19] [20]):
Pre-sentence reports dated 19 February 1997 and 30 April 2001 were prepared to assist with sentencing the Respondent for offences committed by him in the Northern Territory. The 1997 report of John Elliott, Senior Case Worker with the Northern Territory Correctional Services [annexure 'L' to the Markham affidavit], noted that the Respondent was genuinely remorseful and accepted responsibility for his offending but continued to have emotional difficulty coming to terms with his conduct toward his own daughter. Mr Elliott noted that since committing the offence, the Respondent had taken responsibility for his conduct and assisted others who had similar substance abuse problems.
The 30 April 2001 pre-sentence report of Helen McDonald, Probation and Parole Officer for Northern Territory Correctional services [annexure 'M' to the Markham affidavit], was prepared ahead of the Respondent's sentencing for trespass, assault and breach of a restraining order. At interview, the Respondent stated that he was sorry for having committed the offences and admitted to a continuing drug and alcohol problem. Ms McDonald stated that the respondent's participation in a substanceabuse rehabilitation program had been curtailed due to his behaviour. While he initially made gains, the Respondent had a problem with anger management. He became possessive about another resident in the programme and subsequently lost his focus.
61 The respondent has a significant history in relation to drug and alcohol use, which the following indicates with matters of context (Markham affidavit of 18 May 2015 [21]):
As the sentencing judge noted on 29 April 2011 [sentencing transcript in annexure 'F' to the Markham affidavit], the Respondent came from a background of abuse and neglect. Both his parents both abused alcohol and their relationship was marked by violence. When that relationship ended, the Respondent's mother commenced a relationship with a violent alcoholic with prior convictions for child sex offences who physically abused both the Respondent and his mother. The Respondent spent time in institutional care, where he was sexually abused by priests and was eventually returned to the care of his father who was violent and unpredictable and reportedly drank to excess. The Respondent left home at age 15 and worked as a farm labourer. He began to drink alcohol and experience suicidal thoughts. He first attempted suicide by hanging at 15 years of age. The Respondent's drinking and suicidal ideation continued throughout his life to a point where, between 1995 and 2000, he was homeless and drank every day, including drinking methylated spirits. The Respondent had three significant relationships which produced 10 children. However, he remained unsettled and transient throughout his life.
62 As to the respondent's mental health, I note the following (Markham affidavit of 18 May 2015 [22], drawing on the report in a letter dated 28 January 2009, Annexure N to the affidavit, from a psychologist, Ré Acacio):
The Respondent has a history of anxiety and depression and has been assessed at clinics in the Northern Territory as well as the Frankland Centre and the West Swan Valley Medical Centre in Western Australia. He has made a number of suicide attempts and has been diagnosed with bipolar disorder, depression and paedophilia.
63 I further note the following report on the respondent by a psychiatrist for the purpose of sentencing him (Markham affidavit of 18 May 2015 [24] [25]):
At the Respondent's sentencing in April 2011, the sentencing judge referred to the psychiatric report of Dr Brian Tanney dated 17 February 2011. Dr Tanney's opinion was that the Respondent suffered from an affective disorder accompanied by suicidal ideation. Dr Tanney noted that the Respondent was at chronic high risk of death by suicide. The Respondent was described by Dr Tanney as having a chronic and well established pattern of offending. Whilst the Respondent did express remorse, Dr Tanney's view was that the Respondent did not experience significant empathy for his victims because at that time he lacked a true understanding of the reasons for his conduct. In his report Dr Tanney recommended a number of programs for the Respondent including substance abuse awareness and rehabilitation, anger management (in the context of domestic relationships), psychiatric treatment, psychological counselling and cognitive therapy as well as programmes to address his chronic paedophilic, intra-familial offending behaviour.
Dr Tanney observed that whilst the recommended therapy had the potential to cause distress and provoke suicidal thoughts, the Respondent ought to receive the treatment nonetheless. The Respondent's offending was said to be chronic and well-established, suggesting that it would be difficult to change. Dr Tanney expressed his concern that the Respondent's prior counselling lacked impact and, having regard to the fact that the respondent had reoffended, had limited effectiveness in that it had not stopped him from offending. Dr Tanney's opinion was that without active treatment of his sexual deviancy, including monitoring of his access to rehabilitation and potential victims, the risk of the Respondent reoffending in a similar manner against young females and his family would be a 4 on a scale of 1 to 5, where a score of 5 is almost certain. With appropriate treatment and the proper level of support, Dr Tanney found the Respondent to have a 3 out of 5 chance of rehabilitation.
64 I note that, while Dr Tanney's report is not annexed to the Markham affidavit, extracts from it are in the transcript of the plea in mitigation in the sentencing hearing for the respondent on 29 April 2011, which is Annexure F to the Markham affidavit (see pages 56 60, 64, 66 68, 78 80).
65 It was put to me for the respondent that I needed to approach Dr Tanney's report with caution, for two reasons. One reason was that I did not have access to a complete version of the report. The other reason was that it was not possible on what I did have to examine, in full at least, the basis for Dr Tanney's opinion. His assessment of the risk of reoffending was particularly mentioned in that second regard.
66 I accept the need for such caution. However, I consider I have sufficient material as to Dr Tanney's report to consider that, in the context of the other reports on the respondent which I do have and with which I consider Dr Tanney's report (to the extent I have it) to be consistent, Dr Tanney's report is capable of providing me with significant assistance in arriving at my conclusions.
67 It is of course particularly important I note in that last regard Dr Tanney's report preceded the respondent's successful completion of the ISOTP for which I have exhibit 1. I need to weigh Dr Tanney's report, and the other material than exhibit 1 that is before me, accordingly.
68 I note the following from the presentence report for the respondent for the sentencing on 29 April 2011 (Markham affidavit of 18 May 2015 [26]):
Community Corrections Officer, Ms Daniela Piotto, prepared a report dated 25 November 2010 in relation to the Respondent's sentencing on 29 April 2011 [annexure 'O' to the Markham affidavit]. According to the report, the Respondent was remorseful but had limited insight into the actual reasons this offending. He did recognise a number of contributing factors, including his substance abuse and deteriorating mental health. The Respondent informed Ms Piotto that he had been diagnosed with Bipolar Disorder in 2004 but had been inconsistent with follow-up treatment and non-compliant with his medication regime. The respondent claimed, as at the date of the interview with Ms Piotto, that he was adhering to his medication regime. Ms Piotto's view at that time was that whilst the respondent indicated that he would comply with a community based sanction, it would be difficult to manage him in light of his transience, lack of community based supports and lack of accommodation. The Respondent indicated that he would use a prison term to address his outstanding treatment needs.
69 I note the report dated 18 July 2013 from a senior community corrections officer, Ms Portia De Guzman, for the purposes of the assessment of the respondent for parole. That report is Annexure P to the Markham affidavit of 18 May 2015. It is to the following effect (Markham affidavit of 18 May 2015 [27] [29]):
As he had done previously, the Respondent expressed remorse to his offending. Ms De Guzman reported that the Respondent commenced an ISOTP on 27 June 2012, attending 35 out of 105 sessions. However, he was formally removed from the program due to a rapid deterioration in his mental health with repetitive episodes of self-harm. The facilitator of the program indicated in the report cited by Ms De Guzman that the Respondent's truncated participation in the program was unlikely to add any significant benefit, and that according to research might have the potential to actually increase the Respondent's risk of sexual and general recidivism.
The Respondent commenced the Pathways Program on 14 March 2013 but was also removed from that program on 26 April 2013 due to a transfer to the crisis care unit. The Respondent was reportedly booked in to commence a further sex offender treatment programme prior to his release in August 2015. The Respondent reportedly accepted that he required further programmatic assistance to address his drug and alcohol misuse prior to his release to the community. He advised Ms De Guzman that he preferred to complete the Pathways Programme prior to his release into the community. While in custody the Respondent had also completed various skills training and general education courses, including a health and safety course and 'Gatekeeper' training to manage self-harm and suicidal ideation.
Ms De Guzman's view was that the repetitive pattern and escalation in seriousness of the Respondent's offending conduct was suggestive of a likelihood of reoffending. In her view, the Respondent continued to have unaddressed criminogenic needs, including a history of relationship violence, entrenched alcohol and poly-substance abuse and a lack of emotional regulation and impulse control, indicating that the risk of reoffending might remain significantly elevated. In addition, Ms De Guzman noted that while the respondent's offending behaviour remained unaddressed his return to the community, as at 18 July 2013, would 'highly compromise' community safety. The Respondent did not present a viable plan for parole in 2013. Accordingly, the Respondent's early release was not supported at that time.
70 The respondent did indeed complete another ISOTP on which he had embarked. That completion was on 4 December 2014. This may have been the programme Ms De Guzman indicated he was booked into: see exhibit 1.
71 It is to be noted that the DPP appears to have been unaware of the respondent's successful completion of the ISOTP until it was drawn to their attention by the respondent after the filing of the present application. As counsel for the respondent noted, this was both undesirable in itself and, given (as will appear) the potential significance of exhibit 1, combined with the date of filing of the present application, it meant it was practically impossible for a Division 2 hearing, should one be the result of the preliminary hearing, to be brought on and disposed of during the period of the custody from which the respondent was entitled to be released.
72 However, I note that it was not put to me exhibit 1 was provided at such a time as to prejudice the presentation of the case for the respondent at the preliminary hearing. Further, I do not consider the matter of practical impossibility referred to as one that should have substantial weight in my deliberations with respect to the attainment of the satisfaction in DSO Act s 14. Rather, in my view, its bearing is on whether to make an order under s 14(2)(b): see DPP v Allen [64]. In that context its extent is to be weighed with the other factors I referred to.
73 I consider there is nothing in DPP v Samson, to which counsel for the respondent drew my attention in this connection, inconsistent with these views of mine.
74 Exhibit 1 does indeed represent material of potential significance in the preliminary hearing. It contains what appears to be a favourable assessment of the respondent's participation in the programme and of the results for him from that participation. It must be noted, at the same time, that exhibit 1 is not a report concerned with arriving at an assessment of the risk of future sexual offending for the respondent.
75 In exhibit 1 it is noted that the respondent was observed to be open to exploring issues contributing to his offending behaviour and to actively engage in the treatment process, including group discussion, learning exercises, and homework activities.
76 There were three specific treatment needs for the respondent identified and targeted within the programme. They were:
77 As to the selfregulation issues, the respondent made gains in his awareness of factors contributing to his offending behaviour. He developed some new skills and techniques to assist him in addressing any future difficulties. These included strategies for emotional regulation and problemsolving techniques as well as alternative healthy coping strategies. He was observed to commence implementing those skills within the group setting.
78 As to the relationship issues, the respondent engaged in discussions and exercises to develop new relationship skills, especially in conflict resolution, including assertive communication, perspective taking, and listening skills. The respondent was observed to commence implementing those new skills in the group setting. He intended to continue this with his family upon his release. However, the report noted that as such he remained untested.
79 As to the sexual issues, the respondent had become aware of his past unhelpful attitude that all women were sexually available, including female children. He had identified the issue for him of managing sexual boundaries so as to develop relationships with women which were based on intimacy and not sex. He developed cognitive scripts that challenged his old unhealthy beliefs. Those were the beliefs which supported the objectification of women, entitlement and the valuation of his needs above the needs of others. He had practised a perspective taking account of the impact of his behaviour on others. Through his greater understanding of healthy sexuality, his improvements in selfesteem, relationship skills and healthy coping skills, the respondent had increased his ability to manage his sexual preoccupations.
80 The respondent's selfmanagement plan appeared generally realistic and appropriate. The author of the report recommended that the plan should be implemented. The report also noted that, according to literature on behaviour change, it was common during periods of learning new skills for individuals to lapse. It needed to be noted that for the new skills and behaviour to be generalised and sustained, continued practice (rehearsal) over an extended timeframe was required.
81 The author of the report suggests that, if the respondent were considered suitable for a parole order, he would benefit from the following:
82 The report indicates that the respondent was aware he had been assessed as requiring an Addictions Offending Pathways Program to address his problematic substance use. It was recommended he successfully complete that programme.
83 It will be noted that the respondent had undertaken but not completed a Pathways Program of that kind as referred to Ms De Guzman's report above. Exhibit 3 describes the respondent's participation in that programme and recommends further treatment in the following terms:
[The respondent] was punctual and displayed a positive attitude while on the Pathways Program. He mixed well with other group members and was willing to learn. [The respondent] reported the need for selfresponsibility and to put into practice what he was being taught.
[The respondent] was unable to complete the Pathways Program as he was transferred to Casuarina on the 2nd May 2013 due to a suicide attempt. [The respondent's] criminal records indicate an entrenched history of alcohol and drug abuse along with mental health issues. It is recommended that in the future [the respondent] be given the opportunity to complete further treatment in relation to his alcohol [and] drug abuse contingent upon stable mental health.
84 It is not in contest that the respondent is presently embarked on a Pathways Program which he expects to complete by his date for release August.
85 I consider that, on that body of material and in accordance with the principles I have described, I have reasonable grounds for believing that the court might, under DSO Act s7(1), find the respondent is a serious danger to the community. Indeed, on the material I have, and allowing for clear signs of improvement as discussed in exhibit 1, I consider the applicant's case is a relatively strong one. I say this in light of previous indications of improvement that preceded sexual offending, in 1997 (see Annexure L in the Markham affidavit of 18 February 2015) and in 2009 or 2010 (see Annexure M in that affidavit).
86 I particularly note the character of the respondent's offending behaviour as it emerges from his criminal record and as it is described in Dr Tanney's report as that report is available to me. That character as so described was, as I have indicated, chronic paedophilic, intrafamilial offending of a kind suggesting it would be difficult to change. This description is consistent with the other reports on the respondent in the materials before me.
87 It may be that further material, including that of a kind the order under DSO Act s 14(2)(a) might produce, might add weight to exhibit 1, to the extent that further material might show that that character so described to be of no, little or insufficient current significance. However, I must of course proceed on the materials I do have. Further, I must note that, relevant to its weight in that regard, exhibit 1, as I have described, refers to a need for or benefit from continuing arrangements for or by the respondent, the efficacy of which in one case was described as 'untested'.
88 I should further note that, unlike DPP v Samson, on which counsel for the respondent placed strong reliance, the present application in this case is not one which 'stands or falls' on the 'seriousness of a single offence' [73]. Nor is it one that involves reliance simply upon a record of offending without a proper evidentiary foundation on other material before the court so as to engage the concern referred to in DPP v Wesley [49] quoted above.
89 I turn then to the matter of whether to make an order under DSO Act s 14(2)(b).
90 On the three factors from DPP v Allen, on the materials I have, I consider that the first factor and, to a lesser extent, the second factor favour making such an order.
91 As to the third factor, I note that, in weighing this factor and even allowing for the date for the hearing of the application for a Division 2 order in the present application, were I to make orders in terms of the consolidated minute of proposed orders, the duration of any period during which the respondent would be deprived of the liberty to which he would otherwise have been entitled is likely to be relatively short.
92 Further, I should take account of the liberty to apply in the consolidated minute of proposed orders.
93 It follows that in my view the present is a case where I should determine to make an order under DSO Act s 14(2)(b), and I should not determine to adjourn the preliminary hearing without making any such determination whether with or without a personal undertaking from the respondent.
94 I have attained the belief referred to in DSO Act s 14 (1).
95 I have further determined I should make orders in terms of the consolidated minute of proposed orders.
(2007) 162 FCR 358