HEARD : 8 AUGUST, 14 AUGUST, 5 SEPTEMBER, 22 SEPTEMBER & 12 OCTOBER 2006

Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for continuing detention order - Sentence of imprisonment already served - Whether prisoner a serious danger to the community - Whether continuing detention order or supervision order should be made

Dangerous Sexual Offenders Act 2006 (WA), s 4, s 7, s 14, s 17, s 40, s 42

Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 210 ALR 50

M v M [1988] HCA 68; (1988) 166 CLR 69

1 MURRAY J: This is an application for a continuing detention order under the Dangerous Sexual Offenders Act 2006 (WA). It is the first such application which the Court has had to deal with under the legislation, which was proclaimed to come into operation on 13 May 2006 (Government Gazette 12 May 2006 P1781). The application was made on 28 July. It was dealt with as promptly as could be managed by the Court and the parties, but in the result the respondent completed service of the sentence of imprisonment he was undergoing on 12 September, before the application could be finally dealt with. That was undesirable, but also unavoidable.

2 The application was made under s 8(1) which provides that it may be made in relation to an offender under sentence of imprisonment for a serious sexual offence. By s 3, a "serious sexual offence" has the meaning given to that term in the Evidence Act 1906 (WA), s 106A. Relevantly, that section provides that a serious sexual offence is one referred to in Pt B of Sch 7 to that Act, in respect of which the maximum penalty is imprisonment for at least 7 years. It is sufficient to note that the Schedule refers to the sexual offences defined in the Criminal Code, ch 31. Section 106A includes in the concept of a serious sexual offence, an attempt to commit such an offence.

3 For present purposes, it is sufficient to note that the respondent was serving a sentence of 2 years 8 months imprisonment for attempted sexual penetration contrary to the Criminal Code, s 325 (a section within ch 31) and s 552. Under those provisions, the completed offence is punishable by 14 years imprisonment and the attempt is therefore punishable by 7 years imprisonment. The respondent was dealt with in the District Court, having been convicted after trial, on 30 March 2005. The sentence of 2 years 8 months imprisonment was backdated to 14 December 2003, the date upon which the respondent was apprehended and remanded in custody. A parole eligibility order was made.

4 There was some delay, after the application was first brought on, while legal representation was arranged for the respondent. The preliminary hearing required under s 11 of the Act, the main purpose of which is stated by s 11(3) to be to decide whether the Court is satisfied that there are reasonable grounds for believing that the Court might find the offender to be a serious danger to the community within the meaning of s 7(1), was held on 14 August.

5 Under s 14(2)(a), if the Court is so satisfied, as I declared I was, a day must be fixed for the hearing of the application and the Court is required to order that the offender undergo examinations by two psychiatrists who are to prepare reports to be used on the hearing of the application. Section 37 of the Act applies to the preparation of those reports. They are to indicate the psychiatrists' assessment of the level of risk that the person would commit a serious sexual offence if not subject to a continuing detention order or a supervision order, and the reasons for the psychiatrists' assessment are to be given.

6 There was some difficulty in nominating psychiatrists and obtaining the reports, which need not be discussed here. However, it was inevitable that the application could not be heard before the respondent's sentence of imprisonment expired. I therefore made the order provided in s 14(2)(b)(i) that the offender be detained in custody while the progress of the application was kept under review until it was finally ready to be heard, following the expiration of the sentence and the respondent's entitlement to be released on 2 September.

7 Under that provision, the Court is empowered to make such an order, but clearly it need not. However, if the offender is simply permitted to be or remain at liberty pending the hearing of the application, there is no provision in the Act for a mechanism to compel his attendance and no capacity to control the offender while at large within the community. The offender may not be released on bail, appropriately conditioned to prevent any further offence, and indeed s 5 of the Act provides that the Bail Act 1982 (WA) does not apply. This seems to me to be a weakness in the statutory scheme which ought to be remedied.

8 As to the hearing of the application, s 40 provides that proceedings under the Act "are to be taken to be criminal proceedings for all purposes". I leave open the question of what implication that provision might have in respect of the standard of proof to be obtained before the application is granted. But under s 42 the Court is required to admit evidence called by the DPP and by the offender under the ordinary rules of evidence, except that the Court is empowered to receive in evidence a document relating to a person's antecedents or criminal record, the transcript of any proceeding against a person for any serious sexual offence, and any medical, psychiatric, psychological or other report tendered in such a proceeding.

9 In addition, it is perfectly clear, I think, that the psychiatric reports prepared under s 37 may be admitted in evidence, at least if the psychiatrist is called to give evidence in the ordinary way. It will be recalled that s 14(2)(a) refers to the preparation of those reports "to be used on the hearing of the application".

10 In this case, the respondent did not require any witness to be made available for cross-examination and did not give or adduce evidence himself. I received in evidence, either by consent or pursuant to s 42, the reports of the two psychiatrists which had been prepared under s 37, one by Dr Hall dated 10 September 2006, and the other by Dr Wynn-Owen dated 9 October 2006. I received a further bundle of 26 reports and transcripts of evidence relating to the respondent. The reports included numerous reports in relation to the respondent's suitability for parole, his suitability for treatment programs in prison, and psychological reports. I have read them all.

11 In addition, I admitted in evidence the affidavit of a psychologist in the Department of Corrective Services, a Ms Martin, one of the annexures to which includes a report by her, dated 12 July 2006, reviewing information on file within the Department. Her affidavit was sworn on 25 July. I admitted into evidence an affidavit of a Mr Yovich, a State Prosecutor in the office of the applicant, also sworn on 25 July. Annexed to that affidavit were sentencing transcripts in relation to four appearances by the respondent in the Supreme Court and the District Court and the respondent's criminal record. Finally, I received into evidence a letter of the acting manager of sentence management in the Department of Corrective Services, dated 4 October. The document, compiled at my request, provides a complete history of the sentences of imprisonment imposed on the respondent.

12 I turn to the substantive provisions governing the hearing of an application for a continuing detention order or a supervision order. The first question for the Court, under s 17(1), is whether it does make the finding, which on the preliminary hearing it pronounced it might make, that the offender is a serious danger to the community. The question of a serious danger to the community is elaborated upon in s 7. It is as well to set out the section in full:

"7. Serious danger to the community

(1) Before the court dealing with an application under this Act may 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.

(2) The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied −

(a) by acceptable and cogent evidence_;_ and

(b) to a high degree of probability.

(3) In deciding whether to find that a person is a serious danger to the community, the court must have regard to -

(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."

13 The requirement is that the Court must be satisfied by acceptable and cogent evidence (and all the evidence before me would satisfy that requirement) to a high degree of probability (but not beyond reasonable doubt) that there is "an unacceptable risk" of the commission of a serious sexual offence unless the offender is subjected to a continuing detention order or a supervision order. I find it difficult to distinguish between the notion of a risk of the commission of a serious sexual offence which is unacceptable, on the one hand, or on the other hand, acceptable. But thankfully there is some guidance by decided authority. The matter arose in Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 210 ALR 50. The case concerned the constitutional validity of the equivalent Queensland legislation, the Dangerous Prisoners (Sexual Offenders) Act 2003, but the content of a notion of an unacceptable risk was referred to in the judgments as follows.

"It was argued that the test, posed by s 13(2), of 'an unacceptable risk that the prisoner will commit a serious sexual offence' is devoid of practical content. On the contrary, the standard of 'unacceptable risk' was referred to by this court in M v M in the context of the magnitude of a risk that will justify a court in denying a parent access to a child. The court warned against 'striving for a greater degree of definition than the subject is capable of yielding'. The phrase is used in the Bail Act 1980 (Qld), which provides that courts may deny bail where there is an unacceptable risk that an offender will fail to appear: s 16. It is not devoid of content, and its use does not warrant a conclusion that the decision-making process is a meaningless charade."

15 In their joint judgment, Callinan and Heydon JJ, at 111 [225], spoke of the statutory test providing a yardstick which was, "one which courts historically have had regard to in many areas of the law. The process of reaching a predictive conclusion about risk is not a novel one." Their Honours also then went on to refer to the decision of the High Court in the context of the magnitude of a risk that would justify a court in denying a parent access to a child, the case of M v M [1988] HCA 68; (1988) 166 CLR 69, to which Gleeson CJ referred in [22]. In that case, at 78, the Court sought to dissuade Judges confronted with such a test from endeavouring to express it in alternative language in a search for greater precision in the concept involved.

16 In my view, in the context of this legislation where the question is the degree of risk of the commission of a serious sexual offence if the offender is not subject to a continuing detention order or supervision order, the risk would be found to be unacceptable if it was a real risk of substance, not merely a remote possibility.

17 The Court must keep in mind the objects of the Act which are stated in s 4:

(a) to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community; and

(b) to provide for continuing control, care, or treatment, of persons of a particular class."

18 The Court is being asked to exercise a power to make an order against an offender who has served a sentence of imprisonment imposed upon him or her as the punishment to be undergone commensurate with the seriousness of the offence committed. That sentence will have been imposed having regard to the various sentencing principles which are designed to achieve a sentence which protects the community by deterring the offender, by deterring such offenders generally, and by seeking to achieve the rehabilitation of the offender, which is the best guarantee of the continuing protection of the community from the offender upon his or her release.

19 At least so far as the Court is asked to make a continuing detention order, this is clearly an extraordinary power and, in my view, the legislation recognises that the powers conferred by the Act are only to be used in a clear case by requiring the Court to be satisfied about the threshold question, the existence of a serious danger to the community by cogent evidence and to a high degree of probability.

20 If that point is reached, s 17 directs the Court that it "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."

21 In my opinion, the use of the word "may" in this context does not import the exercise of a discretion to make such an order in either form or to make no order at all in respect of a person found to be a serious danger to the community. The word "may" confers the power on the Court to make one or other order described by the section. By s 17(2), in deciding between the two, "the paramount consideration is to be the need to ensure adequate protection of the community". The same notion is therefore carried into the second phase of the exercise if the Court reaches the appropriate degree of satisfaction about the threshold question.

22 In my opinion, the Court would not make a continuing detention order if an adequate degree of protection of the community might be obtained by making a supervision order having regard to the terms of such an order as described by s 18 of the Act. A supervision order is for a defined period.

23 A continuing detention order, on the other hand, is, as s 17(1)(a) makes clear, for an indefinite term. By s 25, it has effect from the time the order is made until it is rescinded by a further order of this Court. Part 3 of the Act contains provisions for annual reviews of the detention of a person subject to a continuing detention order. After the first year, the review process may be initiated, not only by an application by the DPP, but also by the prisoner. Section 30 requires this Court to grant leave for the prisoner to make an application to review his detention, which leave may only be granted if the Court is satisfied that there are exceptional circumstances relating the prisoner which justify the application.

24 The Act prescribes no overall limit of time after which the prisoner must be released, and so it can be seen that a continuing detention order, when made, has the potential to last indefinitely, for a period well beyond the term of any sentence of imprisonment which might be imposed as punishment upon the commission of a serious sexual offence by the offender. It is having regard to that such matters that I express the opinion that the scheme of the Act requires the Court to do no more than its necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection for the community.

25 I turn to the question whether I am satisfied to the requisite degree of probability that the respondent presents a serious danger to the community within the meaning of s 7 of the Act.

26 He is a man of 48 years of age. His record is extensive. He has convictions dating back to April 1970, when he was 11. His first conviction for wilful exposure was in April 1973, by which time he was 14. In 1976, he was convicted of indecent assault in the Children's Court. He was then 17, and the record says that he was imprisoned for a month. As an adult, regular minor sexual offending occurs from 1982, when he was 24, since when he has been convicted of wilful exposure on no less than ten occasions. That is not a serious sexual offence, but the seriousness of his offending escalated, and in the District Court on 17 December 1992, for an indecent assault committed on 22 July 1991, he was given 18 months probation and a community supervision order, the terms of which he appears to have completed without breach, an encouraging sign.

27 However, on 26 August 1993, upon pleading guilty, he was sentenced for two indecent assaults committed on 17 November 1991. Those convictions would therefore not constitute a breach of the previously made probation order. The sentences imposed on that occasion, with parole eligibility, were reduced on appeal to achieve an aggregate term of 12 months imprisonment.

28 Four days later, on 30 August 1993, the respondent was again before the District Court to be sentenced for an indecent assault committed on 24 August 1991, that is, somewhat earlier than the matters for which he had already been dealt with, and a separate incident for which he was sentenced to 15 months imprisonment to be served cumulatively. Upon the completion of the appeal process the result was therefore an aggregate term of 27 months imprisonment with eligibility for parole.

29 During his service of this term, attempts were made to render him suitable for parole by having him undertake a sex offender treatment program, in which he refused to cooperate, denying that he was guilty of any sexual offence and describing his behaviour as typical of "any red-blooded male". In the result, his parole was deferred and then ultimately denied, resulting in the respondent serving the full term, from which he was finally discharged on 24 February 1995.

30 A year later, on 12 February 1996, the applicant pleaded guilty in this Court before D C Heenan J, to an offence of aggravated sexual assault committed on 15 October 1995, less than 8 months after his release from prison. This offence marked a disturbing escalation in the seriousness of the respondent's sexual offending. The Court was told that the offence was committed at Perth railway station. The victim was a 39-year-old woman. She was approached by the respondent, whom she did not know. He took hold of her and forced her to a space underneath some escalators where he pushed her to the floor, restrained her struggles, put his hand over her mouth to stop her cries for help, and pulled down her jeans and underpants. He lowered his own trousers, before penetrating her vagina with his fingers. Eventually her struggles succeeded in pushing him off, whereupon he pulled up his pants and ran away.

31 She complained to security guards. The respondent was apprehended. To them and to investigating police he told two different stories, denying the offence and blaming the victim. He said that it was she who had initiated the sexual activity before changing her attitude and complaining. As the sentencing Judge noted, the offence to which the respondent pleaded guilty was one committed against a complete stranger in a public place.

32 The respondent was sentenced to 5½ years imprisonment with parole eligibility. His earliest eligibility date was therefore 11 December 1997. After some deferral, the respondent was finally offered parole, but he refused to accept parole and was therefore ultimately released upon completion of service of the sentence on 5 October 1999. Earlier, during service of the sentence, the respondent had sought to be included in a sex offender treatment program, but when interviewed he again denied the offence, repeating to the psychologist the untrue story told to the investigating police.

33 Having been discharged into the community without supervision on 5 October 1999, the respondent was soon in trouble again and appeared in the Perth Court of Petty Sessions on 23 August 2000, when he was convicted of wilful exposure and sentenced to 6 months imprisonment. Having regard to the one-third remission of sentence then in operation, he was released on 13 December 2000.

34 While he had a court appearance on 11 December 2001, it was not relevant to this legislation and there were encouraging signs in that he committed no further offence until he was brought before the Court in January 2003 for four breaches of a violence restraining order and two breaches of bail. Community-based orders were imposed for a period of 12 months, but they were breached when the respondent committed an offence of attempted sexual assault on 14 September 2003. He was apprehended on 14 December 2003 and thereafter remained in custody on remand until he appeared before the District Court on 30 March 2005 for sentence.

35 Sleight DCJ sentenced the respondent to 2 years 8 months imprisonment backdated to 14 September 2003, with parole eligibility. At the same time, the Court dealt with the breaches of the community based orders, although that did not add to the aggregate term of imprisonment. His earliest eligibility date was therefore 13 April 2005, halfway through the service of the term under the current sentencing regime provided by the Sentencing Act 1995 (WA). However, parole was denied, and again the respondent served the full term. It was this sentence which expired on 2 September 2006, entitling the respondent to an absolute discharge and release into the community were it not for the interim detention order I made.

36 The Parole Board considered the respondent's case for release on parole in the light of a report by a community corrections officer dated 18 May 2005, which was supported by a psychological report dated 20 March 2005, provided by a clinical psychologist, Mr Cicchini. It is an insightful document, making an assessment that the respondent presented a high risk of sexual re-offending. It was said that the respondent "has intense unmet needs for attention and admiration, and is prone to embellish events in order to present more favourably".

37 No doubt related to that is the fact that the respondent continued to deny responsibility for any sexual offence and therefore remained unsuitable for inclusion in standard forms of group sex offender treatment, but Mr Cicchini recommended individual counselling with a male therapist to try to work through the respondent's "shame sensitivity" as a means of trying to prepare him for inclusion in a sex offender treatment program.

38 That recommendation was supported by the community corrections officer, who noted that two such individual counselling sessions could be made available from September 2005. The community corrections officer's report said that if the respondent was challenged when he denied responsibility for any sexual offending, he said that he had been set up by the police on every occasion, despite his innocence, and aggressively displayed animosity, not only towards the police, but also to the Parole Board, and "the entire justice system in general". No progress has been made during the balance of service of the sentence imposed on the respondent.

39 The documents tendered in evidence include regular reports to the Parole Board reviewing the respondent's suitability for release on parole. The reports note, not only the difficulty of the unaddressed propensity to commit sexual offences and the respondent's unsuitability to be included in treatment programs, but also the fact that the respondent has no, or at least minimal, support in the community. If he was to be released on parole, the services of an organisation such as Outcare might be engaged to seek accommodation for him. The parole officer would endeavour to find employment although the prospects would appear to be dismal. There might be imposed treatment programs in the community, but these would have little prospect of success.

40 In fact, the respondent's counsel did his best to address these issues in submissions made to me, but it was very apparent that counsel was unable to suggest that firm arrangements could be made in any form of supervised accommodation, that there were any prospects of obtaining employment, or that anything more could be done by way of treatment than individual counselling in an attempt to break through the respondent's denial of responsibility for his sexual offending so as to pave the way for his inclusion in a treatment program. In short, the respondent has been and remains a homeless itinerant without community support, substantially unemployable, with unaddressed psychological problems which, from time to time, prompt the commission of sexual offences.

41 The facts of the latest offence, that committed on 14 September 2003, for which the respondent has just completed the service of his sentence, are instructive in this regard. In the middle of the day, the respondent was observed by other people in a park in Northbridge. He approached two Aboriginal persons, a male and a female, who were asleep. He pulled down the trousers of the male and began to play with his genitals. The person woke, and obviously befuddled by drink, sat up and completely removed his pants before again lying down. The respondent crouched over the male, undid the front of his trousers, and attempted to commit sodomy upon his victim. After a period, the respondent stood up and walked off, masturbating.

42 Two women who saw what had happened reported it to the police, who apprehended the respondent a short time later. When interviewed, he admitted being in the park and being the person seen by the women, but he denied attempting to sexually penetrate the victim. He continued to deny the commission of the offence, which was tried by a jury. Sleight DCJ observed that the complainant, in giving evidence at trial, was obviously humiliated and angered by what had happened to him.

43 The disturbing fact, of course, is that the offence was committed in broad daylight in a public park in full view of members of the community going about their ordinary pursuits, and it was an opportunistic offence committed upon a member of the public who was effectively defenceless.

44 Dr Hall's report of 10 September 2006 is again a comprehensive document, compiled after examining the respondent on two separate occasions, the first for a period of three hours, and after reading all the documentary material, to most of which I have referred above. The contents of that material are reviewed and the tests carried out are described. The respondent is diagnosed as having an antisocial personality disorder. The tests employed show him to be at a high risk of re-offending, which is measured as falling within a percentage range by which the degree of risk is expressed. Dr Hall notes, at p 14 of his report, "Factors in Mr Latimer's case such as his extreme denial, his antisocial and immature personality style and his unaddressed offending behaviour could be reasonably expected to place him at the higher end of the range."

45 In summary, Dr Hall, at p 15 of the report, draws the following conclusion:

"For the reasons detailed above, Mr Latimer is considered to be at high risk of committing a serious sexual offence if not subject to a continuing detention or supervision order. The essence of his level of risk lies in his extreme denial and therefore unaddressed offending behaviour, his unrealistic forward planning and the lack of any likely supports or structure in the community. No therapeutic endeavours to date have been of benefit."

Dr Hall adds that he is of the opinion that the respondent would not respond to individual counselling and would reject attempts to increase his social support network.

46 The report of Dr Wynn-Owen dated 9 October is an equally useful document. I need not summarise the detail of the report here, but he expresses his conclusion that the respondent presents a high risk of re-offending, "if not subject to a continuing detention order", without referring to the possibility of a supervision order. Dr Wynn-Owen points to the escalating history of sexual offences, the commission of which is consistently denied by the respondent who is unwilling or incapable of taking responsibility for his actions. The respondent is described as being "impulsive" with "a history of aggression and violence". In the opinion of Dr Wynn-Owen, the respondent, who has been unable to take advantage of any therapeutic endeavour in the past, "appears unlikely to do so in the future".

47 The report of the psychologist, Ms Martin, is very much in those terms, as was the earlier report of the psychologist, Mr Cicchini, to which I have referred.

48 There is abundant evidence detailing the history of escalating seriousness of sexual offending. The pattern of offending behaviour gives serious cause for concern as to the danger presented to the community by the respondent. He has been unable to render himself suitable to participate in any program of rehabilitation simply because he continues to deny his offending behaviour. In my opinion, there is abundant cogent evidence which satisfies me to the requisite high degree of probability that the respondent, if not subject to a continuing detention order or supervision order would commit a serious sexual offence. I find that he is a serious danger to the community within the meaning of s 7 of the Act.

49 I turn then to the decision whether I should make a continuing detention order or a supervision order. I do so against the background of my view that, as the Act is to be properly construed, I should choose the option which is the least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.

50 I consider that a continuing detention order is required, because the Court can have no confidence that adequate protection would be provided by a supervision order. That, I think, is the view of the reporting psychiatrists and psychologist, all of whom point to the lack of appropriate plans on the part of the respondent, the incapacity to put in place appropriate measures of a coercive kind to prevent re-offending while leaving the respondent at large in the community, and the difficulty generally of making appropriate arrangements for rehabilitative treatment.

51 As the reports point out, the respondent lacks appropriate support in the community. He has no family support. His brother has a violence restraining order in place to prevent contact. Upon his release, the respondent would propose that once he was financially able to do so he would leave Perth and travel to Darwin or to Broome where he might stay with a friend, in respect of whom he has no contact details. He believes there he might get a job and make a contribution to the community including, in the long term, getting married and having children.

52 These plans are nebulous in the extreme and provide no mechanisms which might assist the respondent to be in the community without offending. More importantly, however, the first step must be to undertake appropriate rehabilitative treatment to reduce the risk of re-offence, and the first step in that process is to accept responsibility for the offences committed so that the respondent may honestly set about understanding why the offences are being committed and what must be done to stop them. He will need to change his attitude to this process completely. There is a danger that unless he can do so he will remain condemned to the application of this legislation and to remain in prison for the protection of the community.