Criminal law - Dangerous sexual offender - Whether detention or supervision - Matters to be taken into account - No new principle

Dangerous Sexual Offenders Act 2006 (WA)

1 McKECHNIE J: The DPP applies for an order under the Dangerous Sexual Offenders Act 2006 (WA) s 17. Before making such an order the Court must find that the offender is a serious danger to the community.

2 As has become the practice in these applications, prior to the hearing, the DPP compiled a book of materials. At the hearing these materials were tendered by consent. The materials include reports from two psychiatrists as required under the Act. In this case the consulting psychiatrists appointed were Dr S D Febbo and Dr B L Tanney.

3 Mr McKenzie, on behalf of the respondent, concedes that the respondent is a serious danger to the community and that the Court should be satisfied there is an unacceptable risk that if the respondent is not subject to an order he would commit a serious sexual offence. This concession is reasonable and appropriate. In considering whether I am satisfied by acceptable and cogent evidence to a high degree of probability, I take into account the matters in the Dangerous Sexual Offenders Act s 7(3). Many, though not all, of those are applicable.

4 The respondent cooperated with the two psychiatrists. Each psychiatrist, in evidence which I accept, detailed their opinions as to the respondent's risk of re-offending. Dr Febbo, for example, concludes that the respondent has a moderate to high risk of re-offending. Dr Tanney considers that without effective ongoing management and implementation of certain risk-diminishing measures the respondent is virtually a certain risk of further sexual offending; s 7(3)(a).

5 Reports prepared by various officers of the Department of Corrective Services over the year point to the respondent as a high risk; s 7(3)(b). The two episodes of sexual offending do not give rise to a pattern of sexual offending under s 7(3)(d), nor can I be satisfied that he has a propensity to commit serious sexual offences in the future, propensity being different from risks in s 7(3)(c).

6 While in custody for the first set of offending, the respondent commenced a sexual offenders treatment programme (SOTP) and was noted to be a reluctant group participant. He did four days of the 30 day programme before escaping legal custody. On his recapture, he completed the course and made a genuine and concerted effort to address his offending behaviour. Nevertheless, he offended again a short time after release.

7 For various reasons, including his declining the opportunity because the SOTP in prison is a group programme, the respondent has not completed such a programme. His rehabilitation programme has not had a positive effect on him; s 7(3)(e) and s 7(3)(f).

8 The respondent's criminal record until the present period of imprisonment is significant.

9 I am satisfied that he is an unacceptable risk to the community without some form of order and that the community needs protection from him. While not binding on me in these proceedings, it is appropriate to give weight to the concession and it is a responsible and appropriate concession by the respondent through his counsel.

10 I turn then to the form of order to be made. The DPP does not press for a detention order but considers that a supervision order under s 17(1)(b) is an appropriate order having regard to the paramount consideration to ensure the adequate protection of the community.

11 It is significant both psychiatrists consider that the unacceptable risk of further offending can be acceptably managed within the community subject to appropriate conditions. I agree. The respondent committed the offences while very young, and at the age of 30 is still young.

12 As Dr Febbo explained in the course of his evidence the respondent lacks certain personality traits which might tell against the possibility of rehabilitation and there is indeed the prospect of maturity that comes with age, provided that the other issues are comprehensibly addressed, including his substance abuse, his need for psychotherapeutic counselling and the requirement to undergo a SOTP. His substance abuse must also be carefully monitored.

13 I consider it is in the best interests of the community if the respondent can address the issues which will reduce his risk of re-offending to an acceptable level and that these issues are best addressed within the community, acknowledging that there is always some risk which I have weighed.

14 I therefore regard the DPP's submissions in relation to a supervision order, rather than a detention order, as responsible and appropriate. As I say, I consider that in the circumstances the risk can be managed within the community.

15 I have heard evidence from two witnesses from the Department of Corrective Services and also from the respondent's mother. The real issue, as it turns out, is whether the respondent should be released into supervision and his mother's care in Margaret River or Perth.

16 I say that is the real issue because I prefer Dr Tanney's evidence or opinion in this regard as it accords with my own view that the respondent, at the age of 30, has few supports, but one of the major supports has been, and will be, his mother, and therefore the possibility that he resides with his mother is most important in deciding where supervision should take place.

17 There are considerable difficulties with Margaret River which must be acknowledged. Margaret River is visited from Busselton and is not a secure place for a Community Corrections officer to monitor the respondent. Busselton has the facilities. There is a SOTP in Bunbury. That will require the respondent to travel from Margaret River to Bunbury or to Busselton several times a week. The bus services are reliable but infrequent each day. He will spend much time travelling and much time unsupervised and sitting about.

18 In Perth, because of its greater size, there is far greater ability for the department to monitor his compliance and also to provide better opportunities for counselling and SOTPs, although there appears to be no difference between the actual programmes in Perth and Bunbury.

19 On balance, his mother's support is crucial and I would favour Perth as the residential requirement. However, there is a practical difficulty and for that reason I adjourned while the parties entered into discussions.

20 The practical difficulty is this: The respondent's mother is willing to relocate to Perth but a crucial condition of supervision will be the respondent's attendance at a SOTP, if he is assessed as suitable. The respondent's mother is unable to relocate immediately and so she has agreed to postpone relocating to Perth until October to enable the respondent to attend and complete the SOTP in Bunbury, subject to his suitability.

21 The other difficulties, which are considerable in relation to monitoring, compliance, reporting and urinalysis, will simply have to be managed. They are considerable but not insuperable. The respondent can be monitored through the Busselton office and urinalysis can be collected either at Margaret River Hospital (noting as staff there are female, that may not be a possibility but it can be explored) or else at Busselton. It is not a problem which should stand in the way of Margaret River as a temporary residential place.

22 I have noted the police have difficulty in surveillance but I am unable to understand that because there is a police station in Margaret River. What the parties have asked me to do (Mr McKenzie with some reluctance but with realism) is to adjourn until 27 March 2009 so that the fine detail of a supervision order can be proposed and submitted and also, importantly, so the respondent can be assessed for his suitability for a SOTP because if he is unsuitable then everything goes back into the melting pot and I will have to reconsider the situation of detention.

23 It is unfortunate that this matter has to be adjourned because the respondent has completed his sentence and is being detained under this Act. However, it is nobody's fault; simply something which has happened. I am not prepared to release the respondent on a supervision order without everything being locked down. I will, therefore adjourn the matter. The supervision period I have in mind is a period of 5 years.

24 Upon resumption: The DPP advised that the respondent had been assessed for inclusion into the Bunbury SOTP and tendered the assessment (Exhibit 45). The parties had discussed the terms of a supervision order and submitted a draft order. I consider the proposed supervision order will provide adequate protection for the community.

25 The respondent had read the proposed order prior to court and agreed to be bound by its terms, signing an undertaking before me to that effect.

26 The respondent to be released from custody under a supervision order in terms of the proposed order filed for 5 years.