DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MOOLARVIE [2008] WASC 37 (19 March 2008)

DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MOOLARVIE [2008] WASC 37 (19 March 2008) - WASC 2008 case summary — Zoe

[40]

When you came before me at Kununurra ... I had before me a report from the Department of Correctional Services which reveals that you are a chronic alcoholic obsessed by sex, and if you were paroled it was said that public safety could not assured. I also had before me a psychiatric report which revealed that you have an aggressive psychopathic disorder, that you show no remorse and accept no responsibility for what you do when drunk and have no intention of changing your way(s). You are totally unsuited for any form of treatment.

Because of my concern about the consequences which might be implicit in those reports I gave instructions for fuller reports to be obtained and I now have a report from a consultant psychiatrist that you are a dangerous recidivist who shows no sense of remorse or responsibility for your activities whose crimes are all alcohol related and escalating in their seriousness in which gratification of your sexual impulses is paramount.

You show an unremitting pattern of antisocial and violent behaviour. I have a report from a clinical psychologist which reveals that your history of alcohol abuse is long and intensive. It is probable that you have brain dysfunction, that you would find it extremely difficult to abstain from alcohol and that if you drink excessively it is highly likely that you will reoffend sexually.

Currently society lacks any suitable agency for the supervision of your drinking behaviour. Another clinical psychologist reports that your inability to control your drinking or your sexual urges will pose a risk of further serious offences for the foreseeable future. His view is that any attempted solution requiring some commitment from you is unlikely to succeed. Neither psychotherapy nor imprisonment have been effective in changing you and you will only be safe while you are in prison.

The pre-sentence report examines the failure of previous periods of supervision in the community and says that there is no medical or psychological intervention which would provide adequate public safety and suggests that there is no realistic alternative to the indefinite detention to which you were sentenced in 1979.

...

Your previous conviction for the identical offence occurred in appalling circumstances involving a 92-year-old woman. You have a long criminal record and it includes offences of violence against women. You will be sentenced to a term of 10 years' imprisonment on the first count; 4 years' imprisonment on the second count; 10 years' imprisonment on the third count; 10 years' imprisonment on the fourth count and 10 years' imprisonment on the fifth count, all to be served concurrently.

Attempts over the years to rehabilitate you and to supervise you in the community have failed. The history of your periods of parole speaks for itself. This offence was committed while you were on parole. I do not consider that it is appropriate that you should be eligible for parole. Furthermore, your antecedents and character and mental condition and chronic alcoholism lead me to the view that there are exceptional circumstances in this case which indicate to me quite firmly that you have shown yourself so likely to commit further sexual offences, including aggravated sexual assault, that you constitute a constant danger to women in the community when you are at liberty.

I direct that upon the expiration of the terms of imprisonment now imposed upon you, you be detained during the Governor's pleasure in a prison.

[123]

It is my opinion that his offending behaviour resulted from an inability to defer his wants for personal gratification due to his personality disorder. If this is the source or origin of his 'lack of controls', there is no currently available restitutive biomedical or psychological treatment that would afford more 'controls' and so lessen the likelihood of re-offending. Presumably, abstinence from substance abuse would lessen the progression of brain damage to his frontal lobe functioning and additionally remove a disinhibiting influence that contributes to his 'lack of controls'. The importance of such abstinence cannot be ignored as he attributes his sexual offending to 'troubles with women, only when I'm drunk' and the presence of intoxication at all offendings is known. My mental status observations at interview and the neuropsychological testing support a current diagnosis of Organic Mental Syndrome-chronic-frontal lobe dysfunction. There is some basis for concern that over time this may further lessen his ability to 'control' his personal wants.

It is also my opinion that no improvement in personal and social functioning (both generally and specifically with respect to relapse prevention strategies for sexual re-offending or alcohol abstinence) based on expectation of internal psychological changes can be expected. Neuropsychological testing and treatment experience concur that Mr Moolarvie is not able to internalise 'new learning' in this area of social controls, allowing only Coxon's suggestion that a direct instruction model might have some value.

Controls must (be) imposed from without and must be of sufficient social authority that Moolarvie accepts these. This is an endeavour with little optimism as his problems with supervision have been described in legal history and in RSVP item 20. There is, however, some evidence of potential in the comments around his institutional behaviours. Mr Moolarvie has been cooperative to helping efforts thus far. He has participated in treatment programs as recommended. He has followed the phases of Early Release over several years at Roebourne, with only one period of delay due to non-adherence to the program requirements. He has successfully managed his current period of Parole within a tightly supervised community. Within an authority-derived institutional environment that imposes controls on his behaviour, he has functioned adequately. (264 - 265)

[125]

1. This report has made effort to meet the purpose of section 37 of the DSO Act 2006, but the scientific underpinnings to satisfy the standard of predicting with high probability the likelihood of serious sexual re-offending by any offender are incomplete at this time.

2. Despite this, three instruments derived from an actuarial or guided clinical risk appraisal framework have been realized by myself, and additional comments provided over years by a number of human services professionals have been discovered. Their convergence directs an opinion that Mr Moolarvie is at High likelihood of serious sexual re-offending against adult women with accompanying violence within the next five years or sooner, should no further intervention take place. 'High' is taken to mean re-offending rates approximating 40% at five years. [This likelihood estimate informs, but does not constitute, a direct probability of personal re-offending nor does it address the ascertaining of 'unacceptable risk'.]

3. The absence of protective factors in his social, personal and care giving environment and the likely inability of Mr Moolarvie to develop such resources represents the strongest dynamic risk element of re-offending. The risk elements that are likely to exacerbate the likelihood of further serious sexual offending are substance abuse and a diminished ability to manage his own behaviours related to personality factors and organic mental disorder. Few of these dynamic risk elements seem capable of either any alteration or change in a direction that would diminish the likelihood of re-offending.

4. Any agency charged with implementing a Community Supervision order will be severely challenged to afford adequate management of unacceptable risk and to offer community-based rehabilitation services sufficient to lessen the likelihood of re-offending. Relapse prevention strategies and the development of social and personal protective competencies are not feasible, and likely not possible. Direct supervision with consistent and straightforward behavioural controls in a structured and simple environment as described above affords the case management approach most likely to minimize the considerable risk elements for dangerous and serious sexual re-offending. (268)

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DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MOOLARVIE [2008] WASC 37 (19 March 2008)

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