Dangerous Sexual Offenders Act 2006 (WA)

1 McKECHNIE J: The Director of Public Prosecutions (the DPP) applies for orders under the Dangerous Sexual Offenders Act 2006 (WA) (the Act) in relation to the respondent. At the preliminary hearing, Dr Brett and Dr Wojnarowska were selected to give reports as required under the Act and they have done so.

2 The Act requires by s 7 that before dealing with an application 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 supervision order, the person would commit a serious sexual offence. The DPP has the onus of satisfying the court by acceptable and cogent evidence to a high degree of probability.

3 Mr McKenzie, who has some considerable experience in these matters, on instructions from the respondent, has conceded that the material before the court would establish that the respondent is an unacceptable risk within the meaning of the Act. In my opinion, that concession, although not binding in the way that other concessions might be, is a very appropriate one on the evidence.

4 I take into account, and it is important to note that the respondent's daughter was killed earlier this year and, as Mr McKenzie submits, all reports must be read in the light of that fact. That is true when taking into account what has taken place in relation to interviews from that time. I take that into account in weighing the evidence both as to whether the respondent is a serious unacceptable risk and also in deciding what order should be made.

5 Each psychiatrist reports that the respondent is presently a high risk of reoffending. The other reports which the DPP has tendered, particularly psychological reports, tend to confirm that fact. While I could not find that he has a propensity to commit serious sexual offences in the future, there is a disturbing pattern in his offending over 25 years. That pattern involves alcohol and imposing himself sexually on women around him.

6 The respondent has made few efforts to address the causes of his offending behaviour. He has done some courses but I think it fair to say, as the applicant submits, that he remains an untreated sexual offender. Consequently, and bearing in mind the programmes that he has undertaken and then further offended, it is not possible to say that any rehabilitation programme has had a particularly positive effect on him. His antecedents and record speak for themselves. For those brief reasons, which in summary are those matters which are set out in s 7(3) of the Act and to which I must have regard, I am of the view that the respondent is an unacceptable risk to the community if he is not subject to some order.

7 I then turn to the form of order. Four witnesses were called by the applicant today, all of whom have given reports, all going directly to this question - the two psychiatrists, Dr Caple, who gave evidence about treatment programmes and Ms Dabala who has attended at the sponsor's proposed address and provided also some other information.

8 I take account of Dr Caple's evidence of the need for an intensive sexual offender treatment programme (ISOTP) and the one that she has specified, and supported by argument, is the intensive 460 hour programme which is only available in prisons.

9 The psychiatrists express some query as to whether or not the respondent would benefit from a ISOTP due to his psychopathy but neither say it would be a positive disadvantage. The opportunity of undertaking an ISOTP has not been availed by the respondent of until now. It is a significant fact in making the decision that the respondent is a person who has spent much of his adult life in prison and, in the short time when he has been out of prison, has persistently offended against women and yet has taken no positive steps to address the causes of his offending. Indeed all the reports would suggest that he has grossly minimised the extent of his offending.

10 Based on his past offending, alcohol is undoubtedly a high risk factor. I am not satisfied that the respondent has taken sufficient steps to deal with this issue either. Mr McKenzie argues quite persuasively that that is a risk that can be managed by monitoring in the community, probably by breath testing because alcohol tends to go from the blood. That is true but monitoring, even random visits, can only do so much.

11 I am completely unpersuaded that the respondent's proposed expressed method to deal with this, namely abstinence, is realistic. I am sure that at the moment he believes it is. I do not question his honesty or intentions in this regard but having regard to the other material I think abstinence would appear to be a completely unrealistic response. Nor do I think that community programmes will provide sufficient safety either. There has to be a fundamental change in the respondent, which disturbingly has not yet occurred. He is now about 48 years of age, and unless there is that change then I doubt that this risk can be adequately reduced or managed within the community by way of monitoring, even to the extent suggested by Mr McKenzie.

12 The accommodation arrangements depend on the sponsor who is reported as an independent woman of strong character; a tough woman. Her loyalty to the respondent as reported by Ms Dabala is very strong. This may have an impact on her seeking assistance in the face of violence or, indeed, reporting the respondent for a breach of a supervision order, but there are a number of lingering questions in relation to the proposed accommodation.

13 Whether other people will be in the house and whether it is a dry house are not unequivocally answered on the material, having regard to the fact that on the one inspection there was no appearance or evidence of alcohol, but on the other hand the sponsor does have a recent conviction for driving with an excess amount of alcohol in her blood.

14 Moreover, the sponsor has not, to my mind, exhibited the sort of insight and knowledge of the respondent's offending that would satisfy me that she is a person who, in effect, is offering surety for the respondent because there is no way he can be managed 24 hours a day even with random testing and random visits.

15 She would necessarily have to bear a responsibility in all of that and I am not satisfied on the present material that she is a person who understands and, if she does understand, could adequately do what may be necessary in order to make sure that the community is protected. In saying that, I am not suggesting that she should or is required to take on any particular burden. She is an ordinary member of the community and no burden falls on her. The simple fact is that in assessing where the safety of the community lies, I am not satisfied that she could, as it were, ring the alarm bell if necessary. Under s 17(2) of the Act, the court must take into account as the paramount consideration the need to ensure the adequate protection of the community. As a general rule, taking into account the paramount protection of the community, the option which poses the least restriction on a person (who after all has served their sentence and is no longer serving a sentence) is the option that should be preferred if possible.

16 It is no light thing to continue the detention of a person who has been punished for their crime but under the Act it is done only for the protection of the community. In this case I have reached the very clear and firm view that the respondent must be detained in custody for an indefinite term for control, care or treatment, and that a supervision order would not satisfy the paramount consideration under the Act. There will be orders accordingly.