Supreme Court of WA|2009-10-29|Before: Mr J, Murray J, Hall J

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- DECKE [2009] WASC 312 (29 October 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- DECKE [2009] WASC 312

MATTER : Application pursuant to the Dangerous Sexual Offenders Act 2006 (WA)

BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for indefinite detention or supervision order - Whether serious danger to the community - Whether indefinite detention order or supervision order appropriate

Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297

The State of Western Australia v Latimer [2006] WASC 235

1 HALL J: Brian Decke has committed 13 offences of a sexual nature over 25 years between 1982 and 2007. Most of these have been wilful exposure offences, but two have been of a more serious type. In 1982 he was convicted of indecently dealing with a child and in 2007 he was convicted of a similar offence involving his granddaughter.

2 For the last offence he received a sentence of 2 years and 5 months' imprisonment. He served the whole of that sentence and was due to be released on 17 June 2009. On 26 May 2009 the Director of Public Prosecutions (the DPP) made an application to this court and an interim detention order was made by Murray J on 8 June 2009. That order permitted Mr Decke to be released on entering into an undertaking, which included residential conditions. The residential conditions were met and Mr Decke was released on the undertaking on 10 July 2009 pending final determination of this matter.

3 The DPP has applied for orders under s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act). Such orders can only be made if the court finds that Mr Decke is a serious danger to the community. If that finding is made the court must then decide whether Mr Decke should be indefinitely detained in prison or should be released on a supervision order.

What is the risk that Mr Decke will commit further serious sexual offences?
Would the community be adequately protected by a supervision order?

5 In the present case Mr Decke accepts that he is a serious danger to the community and that orders under s 17 are open. He submits, however, that a supervision order and not indefinite detention is appropriate. The DPP accepts that a supervision order with stringent conditions would ensure the adequate protection of the community. Of course, it is for the court to decide whether a supervision order is appropriate in the circumstances of this case. Before addressing the questions that I have identified, it is necessary to briefly explain the statutory basis of the application.

6 Section 17 of the Act provides:

(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.

7 Section 7(1) states that before a court can find that 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.

8 Section 7(2) provides that the DPP has the onus of satisfying the court that a person is a serious danger to the community. The court has to be satisfied by acceptable and cogent evidence and to a high degree of probability.

9 A serious sexual offence is defined in s 3 of the Act to have the meaning given to that term in s 106A of the Evidence Act 1906 (WA). That means an offence mentioned in Part B of Schedule 7 to the Evidence Act for which the maximum penalty is 7 years or more.

10 The DPP may make an application under the Act where a person is under sentence of imprisonment for a serious sexual offence. At the time this application was made Mr Decke was serving a sentence for an offence of indecently dealing with a child contrary to s 329(4) of the Criminal Code (WA), which is a serious sexual offence as defined by the Act.

11 It should be noted that of the 13 offences of a sexual nature committed by Mr Decke between 1982 and 2007, only one other falls within the definition of a serious sexual offence under the Act. The other serious offence is the first committed in 1982 of unlawful and indecent dealing contrary to s 183 of the Criminal Code. The remaining offences, being wilful exposure, indecent act, and indecent assault offences, whilst not themselves serious sexual offences within the definition, are relied upon by the DPP as being relevant to predicting whether Mr Decke would commit serious sexual offences in the future.

12 What is meant by 'an unacceptable risk' has been considered by Wheeler JA in Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297. In that case her Honour said that a judge is required to consider the likelihood of the person offending and the type of offence likely to be committed in considering whether the risk is so unacceptable that the interests of the community require that the person be subject to further detention even though they have already been punished for whatever offence they may have actually committed in the past.

13 Section 7(3) of the Act sets out a number of matters that the court must have regard to in considering whether a person is a serious danger to the community. Those matters are:

(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;

(b) any other medical, psychiatric, psychological, or other assessment relating to the person;

(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future;

(d) whether or not there is any pattern of offending behaviour on the part of the person;

(e) any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;

(f) whether or not the person's participation in any rehabilitation program has had a positive effect on the person;

(g) the person's antecedents and criminal record;

(h) the 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;

(i) the need to protect members of the community from that risk; and

(j) any other relevant matter.

14 Once a court has concluded that an offender is a serious danger to the community it must make either an indefinite detention order or a supervision order (DPP v Williams per Wheeler JA at 68). In deciding between those two possibilities the paramount consideration is the need to ensure the adequate protection of the community (s 17(2)). That does not exclude other considerations. Nor does it necessarily favour an indefinite detention order. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order.

15 In The State of Western Australia v Latimer [2006] WASC 235, Murray J expressed the view that the court would not make a detention order if an adequate degree of protection of the community could be obtained by making a supervision order. His Honour noted that a detention order is for an indefinite term whereas a supervision order is for a defined period. Given the more onerous nature of a detention order, Murray J concluded that the Act requires the court to do no more than is necessary for the continuing control, care, or treatment of the offender to achieve an adequate degree of protection for the community. I agree.

16 Mr Decke has described his childhood as happy but it appears to have been dysfunctional in a number of respects. He has said that there was much secrecy within his family and that at the age of 9 he was molested by an uncle. He said he reported this to his parents but nothing was done. He completed year 10 at school before doing a pre-apprenticeship as a cabinet maker. He was sexually assaulted at the age of 15 by a man in his workplace. He was frightened by this experience and did not report it to the authorities.

17 Mr Decke married at the age of 20 and he and his wife had four children who are now all adults. He and his wife began living separately in approximately 1995 before divorcing in 2005. For reasons which will become apparent, he has very little contact with his children now.

18 Mr Decke committed his first relevant offence at the age of 31 on 29 July 1982. At this time he was married with three children. He and his wife occasionally babysat for a neighbour. Whilst babysitting the neighbour's children at her home he touched one of the children, a 9-year-old girl, on the vagina with his finger and also had contact with his mouth. The child's mother found bruising on her legs and, after being told what had occurred, reported the matter to the police. Mr Decke admitted the offence and stated that he knew that what he was doing was wrong but could not help himself. He told police that he wished to seek psychiatric help. He also admitted to the police that he had masturbated in front of the child. He said that he was out of work at the time and the pressures of that, and the tension at home between he and his wife, and problems with their children, got on top of him.

19 Mr Decke also spoke to a social worker at Princess Margaret Hospital at this time who reported that he initially denied the allegations and suggested that the child had made them up. This is noteworthy as subsequent offences show that Mr Decke has a pattern of shifting between admitting, in a general sense, that he has done something wrong and denying the specific details of an offence by suggesting that the victim is wrong or has misunderstood what he was doing. He was sentenced to a term of probation of 3 years for this offence. He was required to receive psychological counselling as part of the probation order. He attended only three sessions and then terminated the counselling. Prison's Department records state that at that time Mr Decke denied the offence and stated that he did not require professional assistance.

20 On 16 October 1987 Mr Decke wilfully exposed himself to two children and a female jogger in a public park. The age and sex of the children is not recorded. Mr Decke was interviewed by a psychologist employed by the Prison's Department on 17 November 1987. The view of the psychologist was that whilst Mr Decke admitted that he did require treatment, he tended to minimise the potential for reoffending. He claimed that the offence was committed as a 'cry for help' and that he had waited at the scene of the offence with the intention of being caught. The psychologist told Mr Decke that unless he received ongoing psychological counselling there was a high likelihood of further sexual offending. Mr Decke was sentenced to a term of 12 months' probation for this offence on 30 November 1987. Arrangements were made for him to see a clinical psychologist.

21 On 11 October 1988 Mr Decke was sitting in his parked car when two sisters aged 7 and 9 passed on their way to the local shops. On their way back from the shop the girls passed through some bushland on their way home. Mr Decke followed the girls, removing his pants, and called out to the girls. He exposed himself and masturbated. A psychologist report stated that Mr Decke had been referred to the psychologist after his previous offence and had first attended on 4 March 1988. He had subsequently been seen on 10 occasions individually and four occasions with his wife. The psychologist reported that Mr Decke had moved to a position where he was less inclined towards utilising outright denial to avoid facing the reality of his actions. Whilst it was considered that progress had been made, it was concluded that Mr Decke was not beyond risk of reoffending. For the 1988 offence Mr Decke was sentenced to a further period of 12 months' probation.

22 The following year, on 14 February 1989, Mr Decke committed a further, very similar, wilful exposure offence. On the afternoon of that day he was sitting in his parked car on a suburban street. As a 16-year-old girl walked past the vehicle Mr Decke called out and when the girl turned around he opened the door to his vehicle and exposed himself to her. He then drove off. A breach of probation report was prepared which concluded that Mr Decke's offending was likely to have a compulsive element thereby making the behaviour highly resistant to threats of legal consequences. For this offence he was fined $300.

23 On the afternoon of Friday, 12 January 1990 Mr Decke drove his car to the Sorrento Quay Marina in Hillarys. Having parked the car near the beach he opened the door and began to masturbate. He was seen by a 14-year-old girl and two of her friends and also by an 18-year-old girl who reported the matter to the police. He was charged with two offences of wilful exposure and fined $400 on each charge.

24 On 3 April 1990 Mr Decke drove his car to the Warwick Grove Shopping Centre. Seeing a 14-year-old girl in another vehicle Mr Decke held up a pornographic magazine so that the girl could see it. He then drove off. He was charged with exposing an obscene picture to view in a public place and was fined $400 on 21 September 1990.

25 On 16 October 1991 Mr Decke drove his car to a street in Trigg and parked it by the side of the road. Two girls aged 12 walked by. Mr Decke then got out of the car, dropped his trousers, and masturbated. On this occasion a pre-sentence report was prepared. Mr Decke told the psychologist who prepared the report that he had been on his way home when his car played up. He pulled over to see if he could do anything to fix it. Whilst stopped he needed to go to the toilet and therefore urinated at the side of the road. He said that he realised that there were people in the area but that he felt that they were too far away to see. He conceded that he had a history of exposing himself but claimed that on this occasion he was merely going to the toilet. An independent psychological report was also prepared and this said that Mr Decke had a high level of anxiety, moderately depressed mood, and moderately low self-esteem. He was assessed as being a person with above average intellectual ability with good verbal skills. It is noteworthy that the psychologist reported that Mr Decke rarely answered any questions directly but did say that he tried to avoid public places such as parks as a safeguard against reoffending. For the offence of wilful exposure Mr Decke received a further term of probation of 12 months on 28 January 1992.

26 On 10 March 1993 Mr Decke drove to a shopping centre in Mirrabooka. He took off his clothes and stood behind the open car door until he attracted the attention of two girls aged 10. He stepped away from the car facing the two girls and proceeded to masturbate. For this offence of wilful exposure he was fined $100.

27 On 18 May 1994 at 4.25 pm Mr Decke drove to the Warwick train station carpark and there exposed himself and masturbated in front of three 10-year-old girls. For this offence of wilful exposure he was sentenced on 29 June 1994 to 4 months' imprisonment.

28 On 18 April 1996 Mr Decke drove to Duncraig and parked his car by the side of the road. He hid himself in some surrounding bush and took off his pants until a 44-year-old woman walked passed. He drew attention to himself and masturbated. The woman ran to a nearby deli. The deli owner called the police. The male deli owner and the woman then returned to the spot where Mr Decke had been seen and the deli owner was able to apprehend Mr Decke and detain him until police arrived. When apprehended he was completely naked except for socks and sand shoes. He admitted the offence when interviewed by the police. He was sentenced to 6 months' imprisonment for this offence concurrent with a term that was imposed for the next offence that was dealt with at the same time.

29 On 1 July 1996 Mr Decke drove his car to Northbridge. At around midnight a 20-year-old woman was walking alone from a nightclub to her accommodation. Mr Decke got out of his car, removed his trousers so that he was naked from the waist down, and called out to the girl to attract her attention. She walked on endeavouring to ignore him but he came up quickly behind her and grabbed her around the neck and dragged her backwards. She struggled and screamed and was able to break free and run off. Mr Decke was charged with unlawful and indecent assault. He pleaded not guilty and the matter went to trial in the District Court on 4 June 1997. In evidence Mr Decke said he had a full bladder at the time and had been relieving himself against a tree. He said that because he was wearing tracksuit pants he had to pull them down to his knees. He said he had a problem with urination and it took a while and he was leaning towards the tree so that he would not wet the trousers. He said he noticed someone walk past and thought that she must have seen him and got a fright. He said that this placed him in a 'predicament' so he pulled his trousers up and began to walk towards her so that he could explain the situation. He said he was only going to apologise to the girl for anything he had done to offend her. He said he went up to her and placed his right hand on her left shoulder, only to get her attention. The explanation was very like that he gave for the offence he committed on 16 October 1991. Unsurprisingly, the jury rejected the explanation and Mr Decke was convicted of the offence and sentenced to 23 months' imprisonment. Kennedy DCJ said that she viewed the offence as very serious and to be an escalation of previous behaviour. She noted the absence of any expression of remorse, regret, or concern for the victim.

30 A psychologist's report prepared in respect of this offence states that Mr Decke entered into a community-based sex offender treatment program following his convictions for wilful exposure in 1992. The report states that Mr Decke satisfactorily completed this weekly group treatment intervention over a period of six months but claimed that he obtained little benefit because of problems associated with a hearing impediment. The report states that Mr Decke had a tendency to justify and project responsibility for his conduct. He had a tendency to minimise the seriousness of his behaviour but claimed that he had now realised that his offending was addictive. He said that he would now be able to control the behaviour but the psychologist noted that similar comments had been made in 1992. The psychologist stated that Mr Decke was of a personality type that has little motivation to change and that the prognosis for psychotherapeutic intervention was guarded. On the one hand Mr Decke attempted to deny, justify, and distort the extent of his deviant interests, whilst on the other hand he showed some acknowledgement and acceptance that he had a problem and that there was a need to address it. He was assessed as having a high motivation for treatment.

31 Whilst Mr Decke was in prison an assessment report was prepared on 26 August 1997. This stated that he only acknowledged his convictions for wilful exposure and denied the indecent dealing charge from 1982. He said that the 1982 charge had arisen from accidental touching of the child whilst playing a game. He also continued to maintain that the unlawful indecent assault was a case of misunderstanding because he was merely urinating. As the report indicates, Mr Decke was continuing to minimise his offending behaviour and avoiding responsibility for it. He sought to blame family members and stressors for his 'problem'. The report concludes that he lacked insight and was a high risk of reoffending.

32 Whilst still in prison, on 11 November 1997, Mr Decke wrote to the Superintendant of Bunbury Prison in regards to a sexual offender treatment program (SOTP) available at Casuarina Prison. Mr Decke wrote that the SOTP was for 9 months but since he only had 2 1/2 months left before being eligible for parole and 10 1/2 months until the end of his full term, there was no reason for him to attend the program. He also noted that he had completed a community-based SOTP four years earlier and that another course would not teach him anything new. He served his full term without doing the program.

33 On 2 December 2001 Mr Decke drove to Perth at about 5.30 am. He got out of his vehicle and called out in the direction of four young women, one of whom was known to be 18. He was seen to be standing next to his vehicle wearing a khaki coloured jacket, no pants, and no other clothing. He then opened his jacket and exposed himself. He was charged with wilful exposure and was sentenced to a 12 month community-based order on 24 June 2002.

34 The final offence occurred on 16 January 2005. At that time Mr Decke was staying with one of his sons. The household included the son's partner and their four children, who at that time ranged in age from 1 to 6 years. Mr Decke slept in the lounge room. On the morning of Sunday, 16 January 2005 the two older children, girls aged 6 and 5, came into the lounge room to watch television. As his 5-year-old granddaughter lay on the lounge suite Mr Decke placed his right hand inside the left leg opening of her underwear. As he did so his son walked in. Mr Decke was startled, pulled his hand out, and said 'Sorry' to his son. When interviewed by the police Mr Decke claimed that his granddaughter had pulled her skirt up and was not wearing underwear and that he responded by placing his hand over her and telling her not to do that. He admitted that his hand may have touched her, but denied having any sexual intent. However, he later told the police that he felt 'lonely, I suppose seeing a naked female body there, I suppose I didn't really react probably like I should've, and I just let her lay there for a bit and then I put my hand out and as I put my hand over and I sort of - her father came to the door'. The police were immediately contacted but Mr Decke was not dealt with for this offence until early 2007. In the meantime he sought assistance from a counsellor.

35 In early 2005, shortly after the offence, Mr Decke began to attend SafeCare, a therapeutic group service for men who have sexually offended interfamilially. In early November 2006 he then sought assistance from an individual counsellor who he met on a weekly basis from that time. In that short time the counsellor was of the view that Mr Decke had made some progress in changing his dysfunctional behaviour. A report was also prepared by SafeCare which confirmed Mr Decke's participation in group programs. That report said that whilst Mr Decke had initially denied and minimised his offending, he had an 'increasing acceptance of responsibility'. He described intense self-loathing for his actions and exhibited significant distress and expressions of sorrow and regret for his actions which had led to estrangement from his family. However, it was noted that there was a lack of honesty about his sexually deviant interests and a tendency to view himself as a victim. The report stated that he continued to place himself in situations where children are present and was unable to recognise the potential risk of doing so because he was confident he had made significant changes. This, it was stated, placed Mr Decke at a greater risk of reoffence.

36 A pre-sentence report was prepared and it is notable that Mr Decke, when interviewed, denied committing the offence and said that he was pleading guilty only to avoid any psychological ill-effects for his granddaughter. The report writer said that Mr Decke showed minimal insight into his sexually deviant behaviour and attempted to justify his current situation by saying that it was driven by his personal circumstances at the time. The report writer concluded that supervision by the Department was not deemed suitable as previous attempts to address the behaviour in the community had not provided long-term treatment gains and it was considered that he posed a risk of harm to the community at large.

37 A psychologist's report was also prepared at this time. Consistently with his previous statements, Mr Decke told the psychologist that he had not placed his hand inside his granddaughter's underwear. He also denied the first offence in 1982 and the indecent assault offence in 1996. He also suggested that the numerous convictions for wilful exposure were a reaction to being wrongly accused of the initial indecent dealing with a child offence in 1982. Psychometric testing revealed that Mr Decke had an exaggerated view of his emotional and personal difficulties. Mr Decke was found to justify much of his offending behaviour due to a perception of past slights and minimised his own culpability by highlighting his perceived victimisation. Tests also suggested that Mr Decke was dishonest in denying his interest in areas of sexual deviance. A Static-99 test was administered. This test measures risk assessment against 10 static (unchanging) risk factors and was used to estimate Mr Decke's risk of sexual reoffending. His score on this test placed him in the 'high risk' category. Based on a sample of sex offenders from Canada and the UK upon which the Static-99 test was developed, this suggests that Mr Decke had a 4 in 10 chance of sexual reoffending within a five year period.

38 The psychologist concluded that Mr Decke's interest in deviant sexual activities, namely exposing himself to strangers and his sexual interest in children, appeared to be pervasive and deeply entrenched. It was also noted that past interventions to address this issue appeared to have been largely unsuccessful. It was considered to be of paramount importance that Mr Decke be monitored to ensure that his opportunity to reoffend is limited by environmental factors. Unsupervised access to children was said to be something that should be strenuously avoided.

39 Mr Decke was sentenced by Yeats DCJ on 1 March 2007. Having referred to the facts and the reports, her Honour concluded that she did not consider that Mr Decke was a suitable candidate for parole unless he successfully underwent sex offender treatment whilst in custody.

40 A parole assessment report was completed on 9 March 2009. That report stated that Mr Decke had undertaken no formal programs whilst in prison. No sexual offender treatment program was available prior to his earliest date for release on parole. That date was 1 December 2008. Because he had not completed a program on this occasion he was not considered eligible for parole and therefore was not released on 1 December 2008. A sex offender risk update report was prepared on 22 May 2009. That report stated that although Mr Decke had been assessed as requiring an intensive sex offender treatment program, no such program had been available to him during his term of imprisonment. This was either because the timing of such programs, which run for six months, did not fit within the period of his incarceration, or because programs were fully booked with other prisoners at the time. The very unfortunate result of this was that Mr Decke was required to serve the full sentence of 2 years and 5 months' imprisonment imposed upon him on 1 March 2007 without ever undertaking an intensive treatment program, which had been identified at the outset as being clearly needed. It also meant that, having served his full term, he was likely to be released without the benefit, both to himself and the community, of supervision. It was in this context that the DPP made this application.

41 On 8 June 2009 Murray J ordered that Mr Decke be examined by two psychiatrists and that their reports be available on the hearing of this application. The two nominated psychiatrists were Dr Brett and Dr Febbo.

42 The report of Dr Adam Brett concluded that Mr Decke needs intensive sex offender treatment. Dr Brett said that based on his clinical assessments, including the Static-99 test, Mr Decke is in a high risk category for sexual offending. He said that Mr Decke has a number of risk factors for sexual reoffending from the past, but also that are current, and that many of these may be amenable to treatment. The main risk factors include the escalation of sexual violence; denial and a minimisation of sexual violence; problems with self-awareness; problems with coping; problems resulting from child abuse; sexual deviance; problems with relationships; and problems with planning and treatment. It was said that the positive factors for him are his good employment record and his engagement with a current counsellor.

43 Dr Brett said that Mr Decke has a significant risk of reoffending in a sexual manner in the future. The risk factors remain unaddressed and untreated. Dr Brett said that Mr Decke is most likely to reoffend by exposing himself as this is his most common offending behaviour. However, he noted, Mr Decke has previously escalated his exposing behaviour to hands-on offending.

44 In assessing risk, Dr Brett did not specifically distinguish any risk of committing serious sexual offences as defined in the Act. Nor did he make any recommendation as to whether an indefinite detention order or a supervision order would be the most appropriate option. He did suggest that if the court placed Mr Decke on a detention order he should undergo assessment and treatment for an intensive sexual offender treatment program. If Mr Decke was to be placed on a supervision order, Dr Brett suggested that he should be required to undergo the most intensive sexual offender treatment program available in the community. Dr Brett also suggested that Mr Decke should not place himself in situations where he is alone with minors and that he should have ongoing counselling for his own sexual abuse and for the management of his depression.

45 Dr Brett concluded that if Mr Decke was not placed on a detention or supervision order his many risk factors would remain untreated placing him in a higher risk category than if they were treated. Dr Brett said that he believed that Mr Decke would be a significant risk of committing a serious sexual offence if he were not subject to a continuing detention order or a supervision order.

46 Dr Febbo provided a report dated 3 August 2009. He stated that Mr Decke's history represents a pervasive and entrenched pattern of sexual offending. He noted that whilst Mr Decke appeared to accept a degree of responsibility in relation to his actions, he directed most of the responsibility externally including to members of his own family. He noted that Mr Decke does appear to accept some partial responsibility for his offending and has developed some insight into his behaviour despite maintaining a victim stance.

47 In Dr Febbo's view, Mr Decke has an entrenched pattern of deviant sexual arousal, difficulties with adult relationships, a tendency to absolve himself of responsibility, and difficulties with stress-inducing factors. Dr Febbo concluded that Mr Decke remains at high risk of future sexual offending. No distinction was made between sexual offending of a general nature and offences of a serious nature as defined by the Act.

48 Dr Febbo stated that in his view, if Mr Decke were to reoffend it is likely the victim would be a young female. He said that it is also likely that Mr Decke would have first developed a relationship with the victim for some time prior to any offending. This scenario would be similar to both the first serious sexual offence and his most recent sexual offence. Dr Febbo also suggested that any future offence would be likely to occur at a time of significant psychosocial stress with the possible presence of financial difficulty, family related stress, and anger in addition to isolation and, more likely than not, in a situation where Mr Decke is not in a relationship with an adult female. He suggested that it may be that for sometime prior to any such offence there would be deterioration in Mr Decke's mental state with the presence of significant depressive symptoms, although this is not a prerequisite to offending.

49 The likely presence of such factors makes it more possible to formulate conditions for a supervision order that would minimise the risk of any reoffending. In particular, Dr Febbo noted that any supervision order would need to include limitations on contact with children. In his view, any serious sexual offending in relation to children would occur in the context of a relationship and accordingly it is likely that prior to the offending Mr Decke would breach any requirement that contact with children be limited.

50 Dr Febbo noted that there were effectively two alternatives available at this point. First, further detention during which Mr Decke could complete an intensive sexual offender treatment program of six months available at Casuarina Prison. Second, release on a supervision order with a management plan including counselling and therapeutic interventions. Whilst Dr Febbo recognised that an intensive sexual offender treatment program had the potential to decrease Mr Decke's level of risk, he was not convinced that this would indeed be the case. He was of the opinion that what would take place post-release, in particular ensuring that contact with young females was limited, would have a more significant impact on the level of risk.

51 Dr Febbo was called at the hearing of this matter and elaborated on his views. He suggested that there were some doubts as to whether an intensive sex offender treatment program would be beneficial and said that there had been no published literature in relation to the programs run in this State. In regard to a supervision order Dr Febbo said that conditions limiting Mr Decke's contact with female children would be required for at least a 10 year period but, from his perspective, such conditions would seem to be adequate to address the risk of reoffending. Dr Febbo said that given the lack of any marked success of previous sex offender programs, he doubted whether any assessment of Mr Decke following an intensive sex offender treatment program in prison would be any different from the present assessment. Dr Febbo was asked to consider the conditions which existed under the current undertaking and expressed the view that they were adequate.

52 Dr Febbo was asked to take into account the fact that on at least one occasion Mr Decke's behaviour had escalated in using violence in respect of an indecent assault upon an adult female in a public place. Such conduct fell outside the predictable behaviour which Dr Febbo predicated. Dr Febbo said that he had taken that offence into account but since there was only one instance of that type of offending he considered it to be an area of risk that was less likely than that related to female children in the context of a relationship.

53 On 10 July 2009 Mr Decke was released on the undertaking referred to in the orders made by Murray J. That undertaking contained a large number of conditions, including some relating to avoiding contact with children.

54 On the day of his release Mr Decke was collected by his brother from the Midland train station. His brother had with him his two children aged 6 and 8. There was nothing to suggest that Mr Decke was aware that the children would be present prior to his brother collecting him. Nor is there anything to suggest that the brother was aware that the undertaking required Mr Decke not to be in the presence of children. Nonetheless, they were in the car together for some time, though not, it would seem, unsupervised. A case management team dealing with Mr Decke's case decided to take no action in respect of this matter, however the requirements of the order were reiterated to Mr Decke as were the likely consequences of non-compliance. In order to make Mr Decke's responsibilities perfectly clear, a written instruction was issued to him that should any adult attend his address in company with children he was required to request that they leave immediately (as per the conditions of his undertaking).

55 On 5 August 2009 Mr Decke reported to a corrections officer and stated that he could not see why he could never have contact with children. He said 'I know I've been a bad boy at times but we have to be sensible'. That statement caused the Department to have some concerns that Mr Decke was not taking the conditions of the undertaking seriously and led to the issuing of the written instruction with a view to reinforcing to Mr Decke his obligations. He was also verbally warned by a number of officers as to the potential consequences of non-compliance.

56 On 18 August 2009 Mr Decke attended at his brother's home. He spent time with his brother in an outdoor office between approximately 2.00 pm and 5.30 pm. Also at the home were his brother's partner and the two children aged 8 and 6. During the course of the afternoon Mr Decke went into the house to place his cup on the sink in the kitchen and to collect some belongings from the lounge room. When he went to the lounge room his brother's 8-year-old daughter was sitting watching television and he spoke with the child briefly before collecting his belongings and leaving.

57 The reason this contact with his brother's children is known is because Mr Decke voluntarily reported it when he saw his corrections officer on 19 August 2009. At that time he also reported that on 22 July 2009 his brother had arrived at his, Mr Decke's, home with his 6-year-old son.

58 Mr Decke's history of offending reveals an entrenched pattern of deviant sexual behaviour. This has been confirmed by the psychiatric reports. His history also reveals that there have been a number of attempts to treat his behaviour. It is fair to say that these attempts have been largely unsuccessful. One factor that has contributed to this lack of success has been Mr Decke's unwillingness to fully accept responsibility for his conduct and to recognise the need to change. On the basis of the evidence before me, there are real doubts that requiring Mr Decke to engage in a program, even an intensive sexual offender program conducted in custody, will in itself significantly reduce the risk of Mr Decke reoffending.

59 This might be thought to lead to a conclusion that the risk is intractable and that Mr Decke must therefore be detained indefinitely. However, such a conclusion assumes that the only way that a risk can be reduced to acceptable levels is by requiring a person to undergo treatment. In this case the evidence, particularly from Dr Febbo, is that Mr Decke's sexual offending follows a pattern that makes risk factors predictable. If such risk factors can be avoided by the imposition of conditions in a supervision order then the risk that a serious sexual offence will be committed may be substantially obviated.

60 It is important in this regard to distinguish between serious sexual offences and other sexual offences. The Act is concerned with circumstances in which a person presents a serious danger to the community because there is an unacceptable risk that they would commit a serious sexual offence. Offences of wilful exposure are not serious sexual offences. As I have previously noted, such offences are relevant in considering Mr Decke's behavioural tendencies. But it is important to note that Mr Decke could not be detained if the only risk was that he would commit further offences of wilful exposure, however distasteful they may be to the community. What the wilful exposure offences do tend to show is that Mr Decke's sexual feelings are associated with young females.

61 In considering the risk of Mr Decke committing serious sexual offences in the future it is important to consider the two such offences he has committed in the past. In respect of both of those offences the victims were young female children who were known to Mr Decke and with whom he had built up a relationship over a period of time. It is for this reason that Dr Febbo suggests that conditions limiting Mr Decke's access to children would acceptably contain the risk of reoffending of a serious nature. It would be expected that any such conditions would be breached well before any serious sexual offence was committed.

62 It has been a matter of concern to me that Mr Decke breached the terms of the undertaking within the relatively short period since he has been released from prison. I think it is significant, however, that Mr Decke self-disclosed the occasions that he came into contact with children. This shows some awareness on his part that he is obliged to avoid the company of children, however brief and innocuous it may seem.

63 It is clear from Mr Decke's statement to the corrections officer regarding the need for him to avoid such contact that he continues to fail to appreciate why such conditions are necessary. This tends to indicate that the efficacy of any conditions can not rely solely upon Mr Decke's voluntary compliance. There would need to be regular and intensive monitoring to ensure that Mr Decke complied and remained conscious of the importance of complying and the consequences of not doing so.

64 It is also relevant to take into account that the offending history contains only two instances of serious sexual offences separated by 25 years. Whilst those offences are significant, the length of time between them does suggest that there is a prospect of Mr Decke's behaviour being controllable. There have also been extended periods without offences. Also noteworthy is that Mr Decke has been sentenced to probation on four occasions and once to a community based order and that, other than on one occasion, he completed these periods of supervision in the community satisfactorily.

65 Having taken all the relevant factors into account, I am satisfied to a high degree of probability that there is an unacceptable risk that if Mr Decke was not subject to an order under s 17 of the Act he would commit a serious sexual offence. Accordingly, it is necessary to make either a detention order or a supervision order. I am satisfied that the appropriate order in the circumstances of this case is a supervision order with strict conditions. On the available evidence I am satisfied that such an order would afford an adequate degree of protection to the community. The terms of the order will be that Mr Decke is to be subject to the conditions set out in the attachment for a period of 10 years from the date of the delivery of this decision. Those conditions will apply at all times during that period of 10 years when Mr Decke is not in custody. That order is made pursuant to s 17(1)(b) of the Act.

Sexual Offenders Act 2006

Director of Public Prosecutions (WA) v Williams

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (77 paragraphs)

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- DECKE [2009] WASC 312 (29 October 2009)

Parties

Legislation Cited (1)

Cases Cited (1)