Criminal law and procedure - Dangerous sex offender - No new principles

Dangerous Sexual Offenders Act 2006 (WA)

Declare respondent remains a serious danger to the community

1 McKECHNIE J: On 9 November 2012 Simmonds J found that the respondent remains a serious danger to the community and expressly declined to rescind the continuing detention order. At that time there was an indication of the need for continuing interchange with the psychological team and transfer to a minimum security prison closer to Perth.

2 For the purpose of this hearing I have received a psychiatric report from Dr Mark Hall dated 29 October 2013 who says:

It is my opinion that, provided Mr Teague continues to receive the psychological assistance that is currently in place, maintains a commitment to abstain from the use of alcohol, and achieves a lifestyle with structure and purpose characterised by educational or occupational activity and facilitated by increasing independence, his risk of committing a serious sexual offence lies in the moderate range. It is assumed, however, that the interventions that have been put in place to assist Mr Teague to manage the above would be prerequisites to a supervision order.

In the theoretical, albeit unrealistic, event that Mr Teague were to receive no further intervention from this point, then his risk of committing a serious sexual offence if not subject to either a continuing detention order or supervision order would be considered to lie in the moderate to high range.

...

Mr Teague' key risk factors for reoffending are those of the emotional deficiencies inherent to Asperger's disorder, and his deviant sexual arousal. Given the longstanding and chronic nature of the above, his past history of sexual offending and his still young age, it is unlikely that his risk would reduce to a low level in the foreseeable future.

3 On the basis of previous judgments including mine: Director of Public Prosecutions (WA) v Teague [2010] WASC 58, and accepting, as I do, the opinion of Dr Hall, I am satisfied that the respondent remains a serious danger to the community unless a continuing detention or a supervision order is made.

4 I turn then to the choice of order. The matters foreshadowed by Simmonds J have largely come to pass. The respondent was transferred to a minimum security prison which initially he found stressful, but has settled well. Although he has, historically, attempted to isolate himself, he is now able at a minimum to tolerate social interaction which represents a marked change from his stated capacity to socialise last year. He has made, what is described as, an admirable effort to contact agencies and individuals who will assist him in the future.

5 He has worked through the year with the Dangerous Sexual Offender Psychology Team, in particular Dr Dylan Galloghly.

6 It would appear that the respondent has made, what is described as, tremendous progress in the development of an emotional literacy, empathy and social functioning.

7 In an interview with Mr Ryan Bell for the purposes of preparing a report to this court, the respondent demonstrated a firm understanding of both his own emotional experience and the emotional experiences of people with whom he has interacted. He was further able to articulate a number of strategies he could employ in response to his emotions. Mr Bell is of opinion:

More importantly, Mr Teague impresses as an individual who does have the capacity to self manage his own behaviour; it is more likely that his renewed appreciation of his own internal world and the world of others would precipitate a pattern of conduct within Mr Teague that he would respect the norms and rights of those around him. He has already developed several realistic self management strategies to address potential risk scenarios for his previous offending and I would expect that further intervention would continue to entrench these treatment gains.

8 Mr Bell has noted that through discussions with the respondent, and his treating psychologist, that he has both met and surpassed all treatment targets set at the time of the 2012 annual review; noting importantly, however, that they remain untested in the community.

9 Mr Bell is of opinion that the respondent appears to have progressed as far as he can within a custodial setting and that further similar intervention in prison is unlikely to result in further treatment gains on the basis of the necessary restrictions on his independence in this environment.

10 I note that the respondent has been meeting regularly with a representative from CamCan, a nongovernment agency aligned with Disability Services Commission, who have agreed to provide intensive support to developing daily living skills and vocational interventions.

11 Mr Bell notes that if released on supervision, the respondent will likely require weekly contact with his DSO psychologist. In addition, Uniting Care West may provide practical support for transition into the community.

12 Accommodation has been provided by the Department of Housing.

13 The paramount consideration is the protection of the community.

14 I am satisfied that the respondent has reached the limit of treatment gains within a custodial setting but, on the basis of the material in evidence, is likely to continue to make substantial treatment gains when living within the community with significant supports. This is, of course, untested and I have taken this into consideration.

15 A finding that a person is a dangerous sex offender does not compel the result that a person must be detained in custody for care, control or treatment. Parliament has provided that as one option. The other option is a supervision order within the community. In each case the paramount consideration is the adequate protection of the community.

16 I am satisfied that with a closely supervised order and the supports indicated in place, the community is adequately protected if the respondent is released on a supervision order.

Given the level of support that is proposed for Mr Teague upon his release to the community, it is likely in my opinion that he would acquire and consolidate the above skills within 2 years. In addition, given that he has spent several of his formative years in the relatively abnormal social context of the prison environment, and given the imperative that he take advantage of opportunities for his social development in the community, there is likely to be, beyond the 2 years above, an inverse relationship between the length of an order with its attendant encumbrances and the social and emotional development that would otherwise serve to reduce his risk to the community. Therefore, as to the question of the duration of any supervision order, as a prerequisite to which the proposed range of psychosocial interventions would be delivered, I respectfully recommend that a duration of no longer than 2 years be considered.

19 I accept Dr Hall's recommendation. I turn to the question of accommodation.

20 The respondent has been allocated a property through the Dangerous Sexual Offenders Supported Accommodation Programme. He will be the sole occupant of the unit which is located within a small complex of semidetached two storey homes sharing a common driveway.

21 There are schools and parks and reserves within the vicinity. I have taken this into account. It is likely that any accommodation within an urban centre in Western Australia, including the Perth metropolitan area, will be reasonably close to schools and parks. I am satisfied that a supervision order can be tailored to reduce the risk of offending in this regard to a level which would provide adequate protection of the community.

22 Of more concern is the presence of a young child within the housing complex. The Department of Child Protection and Family Support have been notified and it will be their responsibility, together with the Department of Corrective Services, to remain in contact and to closely monitor the respondent.

23 This latter aspect, the presence of a young child in the complex, has caused me to reflect whether the paramount consideration can be achieved by release on a supervision order.

24 I have concluded that the level of support and supervision to be provided for the respondent in the proposed plan upon his release is such that the risk can and will be adequately managed. Nothing is ever certain but the Dangerous Sexual Offenders Act 2006 (WA) does not require absolute but adequate protection for the community.

25 The Dangerous Sexual Offenders Act does not allow for a review or a report as to the progress of a dangerous sex offender who is released on supervision. But the respondent will continue to have other obligations under the Community Protection (Offender Reporting) Act 2004 (WA) for the remainder of his life. In the circumstances, having regard to the evidence, I will make a supervision order for 2 years.

26 Finally, I note that each of the parties, that is, the Director of Public Prosecutions, and the respondent, has joined in and agree that a supervision order is the appropriate order in this case. In this area, that is not decisive because it is a judicial decision in every case. But nevertheless, the fact that the parties are in agreement is a matter of considerable weight.

27 I will make an order suppressing the unit, house and lot number and street name of the proposed address specified in condition 1 of the supervision order, which I make today 12 November 2013, and of any subsequent address approved pursuant to that condition, or any information tending to lead the members of the public to identify the suppressed information, other than the publication by the Commissioner of Police pursuant to the Community Protection (Offender Reporting) Act 2004 Part 5A, and shall not be published until further order of the court. Making that order, I consider there is a balance between possible vigilante action and other matters including the rehabilitation of the offender, and the risk to the community, which I have assessed as adequate, but not riskfree. And therefore, I will not suppress the name of the suburb in which the respondent will reside. The parties have agreed to the terms of a supervision order. I have read that supervision order. I accept that those are appropriate orders.

1. the respondent remains a dangerous sexual offender;
2. the respondent is to be released on a supervision order (which I will not read out, but which contains 32 Conditions). The term of that order will be 2 years; and
3. the continuing detention order is rescinded.