Supreme Court of WA|2007-12-21|Before: Mr J, Jenkins J

THE STATE OF WESTERN AUSTRALIA -v- WOODS [2007] WASC 320 (21 December 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- WOODS [2007] WASC 320

MATTER : Application pursuant to The Dangerous Sexual Offenders Act 2006

Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for custody or supervision order - Respondent is a serious danger to the community - Supervision order

The court finds that the respondent is a serious danger to the community

Order that the respondent be released on a supervision order for a period of 7 years subject to conditions

1 JENKINS J: This application is made by the Director of Public Prosecutions for Western Australia (DPP) pursuant to the Dangerous Sexual Offenders Act 2006 (WA) s 8 for either a div 2 continuing detention order or a supervision order for a period of 10 years.

2 The Act s 17(1) provides that if a court hearing an application such as this finds that the respondent 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.

3 An order under s 17(1)(a) is defined as a div 2 continuing detention order. An order under s 17(1)(b) is defined as a supervision order.

4 Section 7(1) provides that before the court can make a finding that the respondent is a serious danger to the community, it must be satisfied that there is 'an unacceptable risk that, if the [respondent] were not subject to a continuing detention order or a supervision order, the [respondent] would commit a serious sexual offence'.

5 Section 7(2) states that the DPP has the onus of satisfying the court of the matters in s 7(1) and that the court must be satisfied:

(a) by acceptable and cogent evidence_;_ and

(b) to a high degree of probability.

6 An issue arose in the course of the hearing of this application as to whether the standard of proof was the criminal standard, the civil standard or some other standard of proof.

7 The respondent relied upon the Chief Justice's finding in Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206 [4] that the effect of the Act s 7(2) read with s 40 was to require the application of the criminal standard of proof; that is, proof beyond reasonable doubt. The other two justices of appeal in that case did not decide the issue. As Williams is the only decision which has been delivered by the Court of Appeal in respect to the Act, there is no binding authority on the standard of proof in applications made under it.

8 In Director of Public Prosecutions for Western Australia v Williams [2007] WASC 95, McKechnie J, at first instance, found that the DPP must prove its case beyond reasonable doubt. In coming to this finding, his Honour said [2]:

The Dangerous Sexual Offenders Act s 40 provides that proceedings under the Act are to be taken to be criminal proceedings for all purposes. These are adversary proceedings. Subject to express statutory provisions to the contrary, and s 7(2) is such a provision, a consequence of proceedings being criminal proceedings is that the burden of proof is at all times carried by the applicant to establish facts beyond reasonable doubt: R v Hutchinson [2003] WASCA 323 at [33], [34]. Another reason why I consider that the applicant must prove its case beyond reasonable doubt is the consequence for the respondent who will be either incarcerated or subject to close supervision. The consequences to him are virtually indistinguishable from a finding of guilty of an offence. There is no burden of proof placed on the respondent. In the context of this application, it is for the prosecution to establish facts for me to make a finding that the respondent poses a serious danger to the community. It must then establish facts as to the proper order to be made. The respondent is under no such duty. For example, the respondent does not have to show that a supervision order rather than a detention order should be made. The applicant must establish its case for an appropriate order.

9 In the State of Western Australia v Alvisse [2007] WASC 129 [6], Murray J said that the provisions of s 40 stated that proceedings were to be taken to be criminal proceedings for all purposes which would normally mean that the DPP was required to obtain the standard of beyond reasonable doubt. However, his view was that that standard of proof was relaxed under s 7(2) which required that the DPP had to satisfy the court to 'a high degree of probability'.

10 I conclude that the standard of proof is simply that which is stated in s 7(2), a 'high degree of probability'. Although s 40 states that the proceedings are to be regarded as criminal proceedings for all purposes, this status is subject to any express statutory provision to the contrary. A provision of general application must give way to a specific provision when the provisions are in conflict: Pearce D C and Geddes R S Statutory Interpretation in Australia 16th ed (2006) 4.32. The existence of the conflict cannot be doubted. Proof to a high degree of probability is different than proof beyond reasonable doubt: State of Western Australia v Alvisse [6]; Attorney General for New South Wales v Tillman [2007] NSWSC 605 [19]. In my opinion s 7(2) is such a specific provision.

11 It is not necessary for me to place any gloss on the meaning of the plain English words used in the Act. The standard of proof to 'a high degree of probability' is higher than the civil standard, being proof on the balance of probabilities, but it falls short of the criminal standard, being proof beyond reasonable doubt. Nevertheless, it is a high standard, and in determining whether it has been met I take into account the grave importance of the issue for my determination, both to the respondent and to the community.

12 The term 'serious sexual offence' is defined in the Act s 3 to have the meaning given to that term in the Evidence Act 1906 (WA) s 106A. The Evidence Act s 106A read with pt B of sch 7 of the same Act and the Criminal Code provides that serious sexual offences are carnal knowledge of an animal, being an occupier or owner allowing persons under the age of 13 years to be on the premises for unlawful carnal knowledge or any offence contained in ch XXXI of the Criminal Code the penalty for which is 7 years' imprisonment or more. The Criminal Code ch XXXI is headed Sexual Offences and contains the majority of the sexual offences in Western Australia. Offences contained in ch XXXI which would fall within the definition of a 'serious sexual offence' include sexual penetration of a child under the age of 16 years, sexual penetration of a child of or over the age of 16 years where the child is under the offender's care, aggravated indecent assault, sexual penetration without consent, sexual penetration of a de facto child or lineal relative and sexual offences against incapable persons. Indecent assault, indecent dealing with a child over the age of 16 years and some sexual offences where the offender is under the age of 18 years, are not serious sexual offences.

13 The Act s 7(3) states that in deciding whether to find that a person is a serious danger to the community, I must have regard to the following matters:

(a) any report that a psychiatrist prepares as required by the Act, s 37;

(b) the extent to which the respondent cooperated when the psychiatrist examined him;

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

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

(f) any efforts by the respondent to address the cause or causes of his offending behaviour, including whether the respondent has participated in any rehabilitation program;

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

(h) the respondent's antecedents and criminal record;

(i) the risk that, if the respondent were not subject to a continuing detention order or a supervision order, the respondent would commit a serious sexual offence;

(j) the need to protect members of the community from that risk_;_ and

14 In Director of Public Prosecutions (WA) v Williams [68] - [72], Wheeler JA (Le Miere AJA agreeing) held that if a court found that an offender was a serious danger to the community it must make either an order under s 17(1)(a) or (b) for custody or supervision, respectively. A court does not have a discretion not to make an order.

15 Her Honour also considered what was meant in s 7(1) by the words 'unacceptable risk'. Her Honour said [63]:

In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.

16 Wheeler JA mentioned a consideration which is not specifically mentioned in s 7(3); namely, the consequences of making a finding that an unacceptable risk exists. Her Honour later explained this by saying that it seemed to her to be unlikely that Parliament would have intended the court to have no regard at all to the exceptional nature of a power to deal with the person, not for an offence which they had committed, but for an offence which they may commit. She said that all the relevant considerations included the potential consequence of a positive finding under the Act for the offender.

17 I will determine this application by dealing specifically with each of the matters referred to in s 7(3) and by Wheeler JA. Before I do that I will set out my findings in respect to the background of the respondent.

18 The respondent was born on 15 November 1946 and has recently turned 61 years of age. He is a member of the Noongar people.

19 The respondent was born in Gnowangerup. He has numerous brothers and sisters. The government removed him from his family at an early age and placed him in a mission. At about the age of 10 or 11 years he went to live with one of his grandmothers in Narrogin. Up until this age his childhood was marked by his separation from his parents and family and the consequential lack of familial love, affection and nurture.

20 In Narrogin, the respondent attended high school but he was expelled for alleged dishonest behaviour midway through his first year.

21 The respondent first appeared in the Narrogin Children's Court at the age of 12 for offences of stealing and unlawful damage. At the age of 14 years, after having appeared in various Children's Courts, he was made a ward of the State to the age of 18 years and was committed to a juvenile institution. Despite this, he repeatedly offended by committing a range of property and dishonesty offences until he was 18 years of age.

22 In his late teens, the respondent obtained some casual farm work and made some money boxing.

23 On 21 May 1965 the respondent was convicted of carnal knowledge of a girl under the age of 16 years. He was 18 years of age at the time of the commission of the offence. The facts of that offence are not before me. The respondent received a sentence of 3 months' imprisonment for the offence. That was not the first sentence of imprisonment which the respondent had received. At the age of 17 he had been imprisoned for property and dishonesty offences.

24 Throughout the 1960s and 70s, the respondent committed numerous dishonesty, property, disorderly and weapon offences for which he was fined or received short periods of imprisonment. Between 1970 and the end of 1979 he committed over 50 offences. Due to the frequency of the convictions, the respondent spent a considerable amount of time in custody. In 1970, when the respondent was convicted in the Perth District Court of breaking, entering and stealing, he received an indeterminate sentence at the Governor's pleasure.

25 The respondent formed a relationship with a woman during this time. When he appeared before the court in 1978 his counsel said that he was in a de facto relationship and that there was a child of the union.

26 On 17 January 1978 after trial, the respondent was convicted of deprivation of liberty of a female. I am unaware of her age. The respondent was sentenced to 8 months' imprisonment.

27 The facts relied upon by the sentencing judge were that on 6 September 1977 in the early hours of the morning, the respondent and his brother drove to the place where the complainant was living. The respondent's brother went into the house and persuaded her, with threats, to leave her home and get into their car. The respondent dropped his brother off and the respondent took the complainant to a place in the Darling Ranges at the back of Bickley Dam. The respondent held the complainant there for some hours. Sexual intercourse took place between the respondent and the complainant, but the respondent was acquitted of her rape. It is important that the respondent receive the full effect of that acquittal; the sentencing judge said he assessed the offence without being influenced by the fact that the respondent had sexual intercourse with the complainant after he had deprived her of her liberty.

28 Upon his release from prison, the respondent continued to regularly offend. He had repeated appearances in court for dishonesty, property and motor vehicle offences, amongst others. In about 1983, the respondent and Rona Maureen Woods married. They had two children before marriage, and had another child the year after they were married. They now have six children.

29 On 11 April 1985 the respondent was convicted after trial of one count of rape. He was sentenced to 5 years' imprisonment with a minimum term of 2 years 6 months.

30 Briefly, the facts of the offence were that the co-offender, an associate of the respondent, offered a 22 year-old female student a lift to her place of employment. He then picked the respondent up and drove the complainant and the respondent to a deserted area. The respondent's co-offender then threatened violence to the complainant. He took her away from the car and raped her. The co-offender returned to the car and the respondent went over to the complainant. Despite the complainant telling him that she did not want to have sexual intercourse with him, the respondent then raped the complainant. After that occurred the complainant got dressed and returned to the car. The co-offender then drove the complainant to her place of employment. At trial, the respondent admitted to having had sexual intercourse with the complainant but denied that the complainant had not consented to it. The respondent gave evidence in his defence. By the conviction, the jury were satisfied beyond reasonable doubt that the complainant had not consented to the sexual intercourse.

31 At the time of his conviction, the respondent was 38 years of age and a married man, with three children. Whilst previously in prison, the respondent had completed a butchering course and was a willing worker in other areas.

32 The respondent was released on parole for that sentence during the second half of 1987. Whilst on parole the respondent lived with his wife and family. The respondent's and his wife's fourth child was born in about 1988.

33 A 12 year old niece temporarily stayed with the respondent and his family in March 1988. On 22 March 1988 the respondent sexually assaulted his niece. On 2 November 1988, he entered a late plea of guilty to this offence.

34 The facts of the offence are as follows. On the morning of the offence, the complainant and two of the respondent's children were supposed to have been taken to school by the respondent. The respondent dropped his own children at school and took the complainant to a bush area. He told the complainant to get a rug from the car and to sit down on it. The respondent grabbed the complainant from behind, pushed her onto the rug and tried to take her jeans off. The complainant started to scream and she told the respondent that she was a virgin and did not want to have sex. After a short time the respondent desisted. The two of them got back into the car but instead of driving the complainant home or to school, the respondent drove to another remote location. He again got out of the car and put the rug on the ground and told the complainant to sit on it. She refused to do so. The respondent threatened to tie her arms and legs to a tree. Because she was afraid, she sat on the rug. The respondent then pushed the complainant down, took her jeans off and had sexual intercourse with her. Later, the respondent drove the complainant to some shops and left her there. He gave her money not to tell anyone. In his plea in mitigation, the respondent admitted the offence but denied that he used physical force in committing the offence or that he threatened to tie the complainant up.

35 In August 1988 Dr Bewley, a registered medical practitioner and registrar in psychiatry at the multi-cultural psychiatric centre in Perth, prepared a report on instructions from the respondent's then solicitors for use in the criminal proceedings. The following material was included in Dr Bewley's opinion:

... There were no psychotic features present, and in particular I could identify no delusional ideas, nor hallucinatory experiences. His general attitude appeared to be to see himself as a victim of life's circumstances, viewing his events from a egocentric point of view with a relatively diminished awareness of the experiences of others involved in interaction with him.

My psychiatric opinion is that this man has a disorder of his personality which could be best described as antisocial. There is some evidence of continuing maturation of his personality in his middle age, which is a recognised phenomena in people with this disorder, though he clearly continues to have difficulties in impulse control. I know of no effective treatment programme which is imposable and likely to be successful in cases of such disorder.

In respect of the described 'apparent propensity for committing crimes of sexual aggression evident in this man's middle years' I would see such behaviour as compatible with the history of a man moving into middle age who has a long history of promiscuity, a long history of antisocial behaviour dating back to his adolescence, and marked disturbance in his parenting/childhood and social conditioning. I do not find him to be suffering from any major psychiatric disorder which might explain the recent alleged sexual behaviours.

...

It is my opinion that this man's lack of affection and stability in his early life, led to a life pattern of basing his actions and attitudes upon hatred and anger, this being clearly expressed in many arenas with further cycles of reinforcement through punishment and repeated offending.

Encouraging factors in the Client's present life circumstance are his attachment to his wife and family which appears strong and which he highly values. He has also, over recent years, shown an increasing self awareness and circumspectness towards himself and his life events, which has led him to partially reform his life, particularly in respect of stealing for which he has had no offence for the past 14 years.

It must also be noted that the Client claims that he was unaware of the complainant's correct age and believed her to be 16 years of age.

36 The sentencing judge for the 1987 sexual offence questioned whether the respondent should receive an indeterminate sentence. Ultimately, he decided that he would not consider it for that offence but his Honour said, in effect, that if there was a third rape conviction of the same description then he thought that an habitual criminal declaration would be appropriate. The sentencing judge sentenced the respondent to 7 years' imprisonment cumulative on any terms he was then serving. His Honour declined to make a parole eligibility order.

37 From the official records, attempts were made after this conviction to engage the respondent in sexual offender treatment whilst he was in custody. A number of assessment reports have been tendered in evidence. The contents of them are not entirely accepted by the respondent. What is apparent from the reports is that the respondent was assessed as being unsuitable for the sexual offender treatment programme for offenders in custody. This was due to a number of reasons, including:

The respondent's belief that he had rehabilitated himself and would not re-offend in the future;
The respondent's view that he was unprepared to participate in a programme simply to facilitate his release from prison;
The various assessors' views that they were not prepared to have the respondent participate in a programme if his participation would not be genuine as he would receive little benefit from participation and it would be disruptive for other participants; and
That there was not a sexual offender treatment programme that would cater to the respondent's identification with traditional Noongar culture.

38 The respondent did participate in an anger management programme in 1992. This programme was discontinued prematurely because the group dynamics were not conducive to treatment. The manager of the group noted that the respondent had a powerful position within the group and was egocentric.

39 The official records tendered in evidence indicate that in December 1991 the respondent was sentenced to 1 month's imprisonment, cumulative, for common assault on a female staff member at Canning Vale Prison. Other evidence indicates that the victim was a psychologist. I disregard the comment made in some evidence that the assault had sexual connotations as I do not have any details of it.

40 In May or June 1994 the respondent was again charged with a prison offence, this time against a female prison officer. The details of it were that he had exposed himself and masturbated in front of the officer. He had explained his actions in terms of a relationship inequality between him and prison staff and an attempt by him to reclaim power in that relationship.

41 The date of the respondent's release from prison after serving the sentence of 7 years' imprisonment is not before me. It was not prior to 13 June 1994 as there is a sex offender unit report in evidence bearing that date. The respondent's counsel put to Mrs Woods that the respondent was released in November 1995 and she did not dissent from that proposition. On 5 March 1996 the respondent appeared in the Midland Court of Petty Sessions on minor traffic and drug offences.

42 On his release from prison the respondent recommenced living with his wife and children. His fifth child to his wife was born in around 1996. Comments made by his counsel in 2003 were to the effect that upon his release from prison, the respondent became an active member of the aboriginal community, attempted to obtain employment, campaigned against the use of amphetamines and attempted to obtain funding to start a youth club. In the 1990s his health deteriorated. He had a stent inserted to assist in treating his heart disease. He developed high cholesterol and high blood pressure.

43 The respondent's offending definitely remitted after his release from custody in or around 1995. Between 1996 and December 1999 the respondent only appeared in court on four separate occasions for minor traffic and drug offences. His sixth child to his wife was born in around 1998.

44 On 23 January 2003 the respondent was found guilty after trial of two counts of aggravated sexual assault. In respect to one of those counts he was guilty on the basis that he assisted his co-offender to sexually assault the complainant and in respect to the other count he was the principal offender. On 4 February 2003 the respondent was sentenced to 7 years' imprisonment on each count to be served concurrently. He was made eligible for parole and the sentences were backdated to 23 January 2003 when he was remanded in custody after conviction.

45 The facts in relation to the offences were that on 4 December 1999 the complainant, a 43-year-old woman, visited the respondent's unit to offer her condolences to members of his family who had suffered a recent bereavement in the family. The complainant regarded the respondent and his co-offender as friends. After a short time it was agreed that the respondent and his co-offender would give the complainant a lift to a nearby railway station in order for her to catch a train home. After 8 pm the complainant left the flat in company with the respondent and the co-offender. The complainant understood that the respondent and the co-offender were also going to obtain some amphetamines. After a period of time the complainant appreciated that the vehicle had been driven past the location where she understood that the drugs were going to be collected. Eventually, the vehicle was driven to the Kent Street Weir area, which the judge noted appeared to be a relatively isolated location and poorly lit. The complainant was ordered out of the car and the respondent and the co-offender also got out of the car. The rear door of the station wagon was opened and the respondent ordered the complainant to get into the back of the vehicle. The respondent told the co-offender that he could go first. The complainant, in fear of her safety did as she was instructed and pulled her pants and underpants down. The co-offender then had sexual intercourse with the complainant against her will. Whilst this occurred, the respondent held the complainant's arms up and behind her back so that she could not struggle or resist the co-offender's acts.

46 The respondent then had sexual intercourse with the complainant, also against her will, whilst the co-offender got behind the complainant and held her arms up and back behind her head. After this offence occurred, the complainant put on her clothing and she was driven back to a block of flats. The respondent threatened her that if she told anybody he would kill her and her children. Approximately one week later the complainant made a complaint about the offences. When interviewed by the police about the offences, the respondent denied them and made derogatory remarks about the complainant and her lifestyle. He pleaded not guilty to the offences and did not give evidence at his trial. He continues to deny the offending.

47 The sentencing judge noted that the respondent had little regard for the rights of others and was prepared to resort to violence in order to achieve his aims. Her Honour noted that the offences were very serious, represented a gross invasion of the privacy of the complainant and a total disregard for the complainant's rights and dignity. The sentencing judge accepted that there was a degree of premeditation in the offending. The respondent was 53 years of age at the time of the commission of the offences.

48 The respondent has been in custody since being sentenced for those offences. His sentence expired on 23 September 2007. Subsequent to that date he has been held in custody pursuant to an interim detention order made under the Act.

49 Soon after conviction, an attempt was made to assess the respondent for eligibility for a sex offender treatment programme. The respondent was not prepared to co-operate in the assessment process. Although he was assessed as being in the highest risk group with a high need for treatment, he was not included in such a programme.

50 On 1 June 2005 Mr Adam Smith, Community Corrections Officer, completed a re-entry release order report. Amongst its contents, the author stated that during the respondent's current incarceration he had sustained seven incident reports relating to abusive and threatening language and misconduct. He had also received one prison charge related to threatening behaviour towards an officer. However, he was employed as a unit worker and staff described him as an excellent worker. This was despite the fact that he did not respond well to directions. The author also noted that the respondent was assessed for and recommended to participate in sex offending, violent offending, addictions offending and cognitive skills programmes. However, the respondent was not prepared to co-operate with the assessment processes. During the interview with the author, the respondent reiterated that he would not attend any programmes to address his offending behaviour because it would mean that he was guilty.

51 The author noted that throughout the interview the respondent presented with an aggressive attitude towards the victim, the prison system and the judicial system for his current sentence. He was not prepared to discuss his court history, including his previous convictions for sexual offences. The author did not support the respondent's release under a re-entry release order.

52 On 1 June 2005 Ms Lillian Edmands, psychologist, completed a pre-parole report in respect to the respondent. The author noted that the respondent's presentation in interview was as follows:

He frequently moved around the room picking up items to assist him in his description of events. He was resolute in describing his innocence, and became indignant when questions were asked about his previous sexual offending. Given Mr Woods' presentation in interview it is assessed that he would most likely to be an inappropriate inclusion into any group. In any event Mr Woods' blatant refusal to accept guilt and subsequent refusal to complete any programme makes him an inappropriate candidate for treatment in general.

53 On 23 June 2005, the Parole Board deferred the respondent's release on parole, setting a review date of 14 September 2006. The Board recommended intensive individual counselling in order to facilitate any application for parole, together with psychological and sexual offender treatment programmatic intervention to address his offending behaviour. An appeal by the respondent from this decision was unsuccessful.

54 On 19 September 2006 Mr Stevan Coll, Community Corrections Officer, completed a review report for the purposes of the respondent's application for parole. The report noted that the respondent remained in maximum security and had not undergone a cognitive skills programme due to his non co-operation. It was noted that the respondent was an average worker who completed all tasks given to him, he was generally polite and respectful and was not considered to be a management problem. However, he had attracted a further two disciplinary charges in the previous six months. The most serious of the charges was a refusal to submit to urinalysis for drug screening. The author did not support the respondent's suitability for early release.

55 On 24 May 2007 Dr Lynley Poli, forensic psychologist, completed a sex offender risk update report. The report included material which I have already referred to. The author said that given the respondent was 53 years of age at the time of the current offence, age was negated as a moderating factor in his risk of re-offending. Dr Poli also noted that the respondent had not engaged in treatment programmes which might have an impact on his risk level. Thus, there was no reason to indicate a reduction in risk.

56 For some time, the exact length of which is unknown to me, the respondent has been regularly seeing a counsellor attached to the Prison Counselling Service. It is regrettable that I did not receive a report from this counsellor.

57 During the respondent's most recent period of imprisonment, he has continued to receive regular visits from his wife and some of his six children. Once released from custody he intends to reside with his wife and family. His wife is willing for this to occur and is supportive of the respondent. She also expresses the view that he is innocent of his most recent conviction for sexual offences.

58 The respondent proposes to live in a Homeswest home in a suburb of Perth with his wife and two youngest children a boy aged 11 and a girl aged 9. At the time of the hearing, the respondent's 19-year-old son and his de facto partner also lived in the home. However, Mrs Woods testified that within a short period of time they were going to get their own Homeswest home. Also living in the home at the time of the hearing were two grandchildren aged 20 months and 8, respectively. Mrs Woods said that the 20 month old would only be staying till the end of this year and she would then be going to live with her other grandmother. The 8 year old would be staying until 2008. It was not clear how long into 2008 he would be staying. Mrs Woods testified that the house had four bedrooms and that she had lived in the home for six or seven years.

59 Mrs Woods said that she usually drove the children to school, thus indicating that she has a licence and a vehicle. She also testified that she has visited the respondent every week whilst he has been in custody since 2003.

60 Mrs Woods was asked what her plans were if her husband was released from custody. She said she planned to sit at home with him and for them to grow old together looking after their children and grandchildren. She testified that the last alcoholic drink she had was about 18 years ago and that she did not consume drugs. Mrs Woods said that after the respondent's release from prison in 1995, he hardly ever drank and did not consume drugs. She said that the respondent's health was not good and he was worried about dying in prison. She said that all of their children loved their father.

61 There is limited material before me in respect to the health of the respondent. Apart from the heart disease and high blood pressure I have mentioned previously, it appears that the respondent had a myocardial infarct in 2002 which resulted in the insertion of the cardiac stent I have previously mentioned. In 2005 he had a transient ischaemic attack resulting in temporary left hemiparesis and, apparently, permanent left hearing loss. After being told that this application would be made, the respondent again expressed concerns that he would die in custody.

62 I now turn to a specific consideration of the matters referred to in the Act s 7(3) which I must have regard to in deciding whether to find that the respondent is a serious danger to the community.

63 At a preliminary hearing of this application the court ordered that the respondent undergo examination by two psychiatrists, Dr Adam Brett and Dr Peter Wynn Owen. The two reports were tendered without objection, although, in his final address, the respondent's counsel submitted that there were a number of reasons why I should not place any weight on the contents of all or parts of the reports.

64 The first submission was that I should not place any weight on the whole of the reports as they fail to indicate, as required by the Act, s 37(2)(a) the relevant psychiatrist's assessment of the level of risk that, if the respondent were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. The respondent's objection was that neither report defines 'a serious sexual offence' and at various places in each of the reports they refer to the risk of sexual offending rather than the risk of the respondent committing a serious sexual offence.

65 It was for the purpose of analysing this submission that, earlier in these reasons, I referred to the definition of 'a serious sexual offence'.

66 Dr Brett introduces his report by stating that the respondent was referred to him for an examination as required by the Act s 37. Section 37 states, in part, that a report prepared pursuant to it has to indicate the psychiatrist's assessment of the level of 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.

67 Dr Brett's 10 page report refers on a number of occasions to the respondent's risk of re-offending. On page 9 of his report he says that if the respondent re-offends it is likely that his offence pattern will be similar to that in the past, which has involved rape. His final two paragraphs state:

From the clinical examination, the review of the collateral information, the STATIC 99, the Three Predictor Model and the Risk for Sexual violence Protocol I believe that Mr Woods falls within the high-risk category for re-offending. The reasons for this are outlined in the bulk of this report. I believe that Mr Woods' risk to others would reduce significantly with strict monitoring, substance abuse counselling and abstinence from illicit substances, individual psychological counselling with respect to general issues and individual counselling to attempt to address his violence and sexual offending. The prognosis for this appears to be poor. I believe that an individual approach is the best way forward given his difficulties in groups and his personality style.

Given his entrenched belief system I believe that there is little hope for change in his cognitive style and more would be gained by placing external controls on him. I believe that if Mr Woods was not subject to a continuing detention order or a Supervision Order he poses a significant risk for serious sexual offence.

68 I see no reason to assume from Dr Brett's report that he was unaware of the definition of 'serious sexual offence' when he gave his opinion and made his recommendations. The respondent's counsel did not cross-examine Dr Brett as to his understanding of that term. In the absence of evidence to the contrary, my view is that when Dr Brett says that his report is for the purposes of the Act s 37 and when in the last sentence of his report he gives his assessment of the respondent's level of risk of committing a 'serious sexual offence' that he uses that phrase as it is defined in the Act.

69 Dr Wynn Owen also introduces his report by stating that it was prepared at the request of the court as required under the Act s 37.

70 On page 12 of Dr Wynn Owen's 13 page report under the heading 'Risk of Reoffending', the doctor states:

Mr Woods STATIC-99 score, presence of psychopathy (PCL-R score 29), age at last offence, denial and extreme minimisation, personality style, recent prison charges and stereotyped superficial plans for the future indicate that Mr Woods currently presents a high risk of sexual re-offending.

71 Under the heading 'History of Sexual Offending' on page 4 of his report, Dr Wynn Owen includes the conviction for deprivation of liberty and the prison charge of masturbating in front of a female prison officer. Neither of these offences are classified as serious sexual offences as defined by the Act. Whilst that may indicate that Dr Wynn Owen has a broader definition of sexual offending than the Act, I am of the opinion that Dr Wynn Owen, when writing about the respondent's risk of sexual re-offending, was primarily writing about his risk of committing the most serious sexual offences contained in his criminal record. Each of those offences are a 'serious sexual offence' for the purpose of the Act s 37. I also take into account that Dr Wynn Owen was aware that his report was for the purposes of the Act s 37.

72 For these reasons I do not agree with the respondent that I should put little, if any, weight on the doctors' reports.

73 The second issue raised by the respondent in respect to the psychiatrists' evidence is that their evidence assumes, without proof, that they are qualified to predict how a person is likely to behave in the future.

74 This submission must be assessed in light of the relevant statutory provisions. As I have stated, the Act s 37 requires a psychiatrist who is ordered to prepare a report to indicate his or her assessment of the level of risk that, if released without supervision, the respondent would commit a serious sexual offence. Section 7(3) states that the court must have regard to any report prepared under s 37.

75 From these provisions, I infer that the court is required to place some weight on the opinions of the psychiatrists even if they have not been qualified as experts in recidivism. It appears to me that Parliament has deemed that psychiatrists ordered to prepare reports under s 37 are qualified to give the opinions required of them.

76 This is not to say that in an appropriate case the court could decide to put little weight on an opinion because it came from a psychiatrist will little experience or who lacked credibility. In my opinion, neither Dr Brett nor Dr Wynn Owen fall into that category. Both are experience psychiatrists. Each of them gave their evidence in a cogent and credible manner. The cross-examination of Dr Wynn Owen challenged his approach and attitude towards the respondent and some of his comments in his report. That cross-examination did not cause me to place less weight on his opinions.

77 There are clear limitations on the psychiatrists' abilities to predict future behaviour. The psychiatrists acknowledged those limitations. There was no evidence which causes me to decide that their opinions were of little weight. To the contrary, I was assisted by their opinions and their reasons for them. At the same time, I am cognisant of the fact that Parliament has given to me the responsibility for determining this application. The opinions of the psychiatrists are one of the matters which I must take into account but they do not determine the outcome of the application.

78 The next matter raised by the respondent was the alleged failure by the applicant to prove the facts upon which the psychiatrists' opinions were based. In particular, it was submitted that the applicant was required to prove the contents of the doctors' interviews with the respondent. Further, it is submitted that the applicant was required to prove the substance of the risk assessment tools that each psychiatrist used and the assessments and calculations, for want of a better word, that they did in order to draw their conclusions in respect to those tools.

79 In respect to the content of the interviews, whilst the psychiatrists did not produce any record of those interviews, they did refer to the comments that had been made in the interviews that led them to form their opinions. Further, all the documentary material that they relied upon to form their opinions is in evidence. On the other hand, the psychiatrists did have some conversations with third parties, the contents of which were not proven. In my opinion, the applicant proved the relevant positions of the interviews with the respondent. Even though it would have been preferable for the psychiatrists not to have had any conversations with third parties or to have included in their reports the substance of any information they used from them, I am satisfied that there was no information which the psychiatrists received in such conversations which materially affected their views.

80 In respect to the use of the assessment tools, the same submission was made in Director of Public Prosecutions for Western Australia v Mangolamara [2007] WASC 71 [130] - [167]. Hasluck J, in that case, stated the relevant legal principles [145] - [152], and I would simply adopt his recitation and interpretation of them. The result is that hearsay information that is non-specific hearsay evidence drawn from text books and similar sources may be relied upon without proof of those sources. However, specific hearsay information such as research data and methods underlying assessment tools must be proven in evidence in order for weight to be given to the opinions derived from those assessment tools. With these principles in mind I turn to the psychiatric evidence.

81 In respect to Dr Brett, he used the Static 99 testing instrument. For the reasons expressed by Hasluck J in Mangolamara I have decided to place little weight upon the results of this assessment tool. Dr Brett also used the three predictor model which examines three factors that a Western Australian study has suggested can be used to predict whether indigenous male sexual offenders would re-offend violently and sexually respectively. The three factors are unrealistic long term goals, unfeasible release plans and poor coping skills prior to release. Dr Brett considered each of these three factors. In my opinion, it is commonsense that these three factors will influence the risk of re-offending in a similar way to the way in which an offender has offended in the past. I do not consider that in order to place weight on Dr Brett's assessment of those three factors, it is necessary for the study or its research data to be tendered in evidence.

82 Dr Brett also used the Risk for Sexual Violence Protocol (RSVP). This, he said, was a set of structured professional guidelines comprising the evaluation of 22 individual risk factors. Dr Brett referred to each of those 22 risk factors and included in his report his assessment of their relevance to the respondent's risk of re-offending. Again, it seems to me, that commonsense dictates that these 22 factors are relevant to an assessment of the respondent's risk of committing a serious sexual offence in the future. I do not consider that in order to place weight upon Dr Brett's assessment of those 22 factors, it is necessary for the study to be in evidence.

83 Dr Wynn Owen used the Static 99 instrument and the same remarks that I have made in respect to Dr Brett's use of the instrument are relevant to Dr Wynn Owen's use of it.

84 Dr Wynn Owen also used the psychopathy check list revised second edition. Dr Wynn Owen did state the respondent's score on the PCL-R without indicating how he had arrived at that score. It seems to me that I should be cautious in placing any weight on that risk assessment arrived at from the PCL-R in the absence of either the document from which the instrument derives or Dr Wynn Owen's workings in order to arrive at that assessment.

85 The next question is whether, given Dr Brett and Dr Wynn Owen used the Static 99 test and Dr Wynn Owen placed some weight on the respondent's PCL-R score in arriving at his opinion, I should place weight on their final opinions. I am of the view that there was a much broader basis for each of the psychiatrist's opinion than the results from those tests. I am satisfied that regardless of them Dr Brett and Dr Wynn Owen would have come to the same opinions concerning the respondent's risk of committing a serious sexual offence if unsupervised in the community. Thus, I have decided to give weight to their opinions.

86 Bearing these matters in mind, I now turn to a consideration of the psychiatrists' reports. Dr Brett conducted two clinical interviews with the respondent for each of two hours in length. Both psychiatrists had access to the background material that was tendered in evidence. This is the material that I have used in order to make my findings about the respondent's background. Dr Brett also summarised that evidence. His summary was generally consistent with the content of the documents. However, his comment in respect to Dr Poli's report appears to be to the effect that Dr Poli conceded that the respondent's age was a moderating factor in his risk of re-offending. My analysis of Dr Poli's report is that the doctor was of the view that given the age of the respondent when he committed his last serious sexual offence, age was not a moderating factor in his risk of re-offending.

87 Dr Brett then gave the results of his 'mental state examination'. He noted that the respondent was a fit looking man for his age. He said that he was difficult to engage and was often superficial in his responses. He said that he liked to dominate the interviews and did not like it when he was directed. On one occasion the respondent had become aroused and demanded that the prison officers enter the interview room to terminate the interview. Dr Brett concluded that there was no evidence of psychotic phenomena and his cognition was grossly intact, although the respondent did appear to repeat himself at times.

88 Dr Brett applied the three predictor model. Dr Brett noted that the respondent had a history of alcohol use and difficulty in coping with stress in the past. He has been documented as saying he was 'terrified' of community life. Dr Brett noted that the respondent had a feasible release plan in that he would like to return to the family home and be there for his children and grandchildren. However, Dr Brett noted that in the past the respondent had been unable to pursue his plans due to re-offending. Lastly, Dr Brett noted that the respondent's long term goals appeared to be reasonable.

The clinical opinion is that left to his own devices [the respondent] may struggle to fulfil his plans and goals. However with additional support these may be successful. It is therefore hoped that a risk management plan be put in place would reduce his risk in the long-term.

90 Dr Brett then referred to the RSVP and evaluated the 22 individual risk factors referred to in it. I will refer to each of these risk factors in turn and summarise Dr Brett's comments in respect to them:

Chronicity of sexual violence - the respondent's sexual offending commenced at the age of 18 and his last offence occurred at the age of 53. The respondent has a history of sexual offending over 30 years.
Diversity of sexual violence - all of the respondent's victims have been females ranging in ages from 12 to 43. They have been both familial and strangers. He has offended by himself and with a co-offender. Thus, there appears to be significant diversity in the nature of his sexual offending.
Escalation of sexual violence - the respondent's most recent convictions included significant threats of violence. However, his most recent period in the community was the longest he had had without re-offending. Dr Brett noted that the severity of offending appeared to be consistently serious and there had been little pattern to it.
Physical coercion in sexual violence - see comments in respect to factor 3.
Psychological coercion in sexual violence - the respondent had a position of power in respect to the offence against his niece.
Extreme minimisation or denial of sexual offence - the respondent denies the 1999 offences and has previously denied the 1985 offences. He also has refused to participate in programmes to address his offending.
Attitudes that support or condone sexual violence - the respondent has extremely negative attitudes towards the victim of the 1999 offences. The respondent has also been quoted as saying that he does not believe in 'white man's law'. It has also been stated that he has had an adversarial sexual attitude.
Problems with self awareness - the respondent appears to have a superficial understanding of his offending pattern and has not addressed his offending history.
Problems with stress or coping - historically the respondent appears to have difficulty in coping with stressful events. On the one hand he has been quoted as saying that he was 'terrified of community life', on the other hand he had alluded to self harm and a fear of dying if confronted with further incarceration. He became increasingly aroused during the interview when confronted with this information.
Problems resulting from child abuse - it is unclear whether the respondent has come to terms with the deficiencies in his early life.
Sexual deviance - nil significant.
Psychopathic personality disorder - the respondent scored 19 using the Hare Psychopathy Checklist. This placed him at the higher level of the scale.
Major mental illness - the respondent has never been diagnosed with a treatable mental illness and there was no evidence of major mental illness in interview. There was some evidence of paranoid ideation and some perseveration.
Problems with substance abuse - the respondent's past alcohol and cannabis use is of concern and his ongoing need for substances should be monitored in the future.
Violent or suicidal ideation - the respondent has a significant history of violence. On direct confrontation he denied suicidal ideation.
Problems with intimate relationships - given the respondent's long term marriage, this factor does not appear to be a significant problem for him.
Problems with non-intimate relationships - this does not appear to be a particularly significant factor for the respondent.
Problems with employment - the respondent had had good reports of his work whilst in custody and gives a favourable history of his community work.
Non sexual criminality - the respondent has a long and extensive criminal record for a variety of offences.
Problems with planning - the respondent has a feasible release plan but it is the same plan he had on his previous release, which was not successful. He has not devised strategies to prevent him from re-offending because he blankly states that 'I won't'.
Problems with treatment - the respondent has not completed any treatment programme. He finds counselling beneficial.
Problems with supervision - the respondent has a long history of breaching orders. He has also had a number of prison offences.

91 Thus, Dr Brett found that 17 out of the 22 risk factors were significant factors in respect to the respondent which had to be taken into account in respect to his future management.

92 Dr Brett also considered the significance of the respondent's age in mitigating his risk of re-offending. Dr Brett considered that because the respondent was now over 60 years of age and he had had some health problems, the respondent's risk of re-offending had reduced. Dr Brett referred to a study which had found that in respect to sex offenders in Britain there was a dramatic reduction in re-offending once offenders were over the age of 60 years.

93 The respondent tendered part of a study by Hood R, Shute S, Feilzer M and Wilcox A entitled 'Reconviction Rates of Serious Sex Offenders and Assessments of Their Risk'. It was published in 2002. Relevantly, the study found that 26.3% of offenders originally imprisoned for a sexual crime against a child victim outside the family were reconvicted of another sexual crime within six years. The study did not examine reconviction rates for older offenders, such as the respondent, who have offended on multiple occasions against both children and adults. The study is of little assistance.

94 Dr Brett noted that the respondent has chronic risk factors. He said that the respondent had not addressed a lot of those risk factors so that it was unlikely that his risk of re-offending would be reduced in the short or long term. He said that given the respondent's history and age, it was difficult to predict the likelihood of his offending, though this would depend on his supervision and his life circumstances. He said that the respondent's background factors placed him in a high-risk category for re-offending. In summary, Dr Brett said that he believed that the respondent is a high priority given his numerous risk factors and that he would be placed in the high-risk category for risk of re-offending. He concluded with the two paragraphs which I have previously quoted.

95 For the purpose of preparing his report, Dr Wynn Owen interviewed the respondent on two occasions for three hours and two hours 45 minutes respectively.

96 Dr Wynn Owen reviewed the respondent's history under various headings. He then made an assessment of his 'personality style' which indicated his emotional and behavioural regulation. Subjectively, Dr Wynn Owen noted that the respondent regards himself as a victim of circumstances and racially motivated misinterpretation and mistreatment. The respondent believes that others find him likeable and intelligent. Objectively, Dr Wynn Owen said that the respondent's history suggested a personality characterised by impulsivity, failure to learn from previous behaviour and its consequence, an external focus of control and a lack of empathy.

97 Dr Wynn Owen noted that the respondent's attitude to his offences was superficial acknowledgment, before dismissing his criminal record as something that was in the past and which should not be considered further. Further exploration of past offences uncovered extreme minimisation and denial, in particular in relation to his sexual offending.

98 Dr Wynn Owen noted that the respondent either denied or was unprepared to make any comment about his sexual offences, other than the conviction for carnal knowledge which he said was as a result of 'white man's misinterpretation of behaviour regarded as acceptable in his community'. Dr Wynn Owen concluded that the respondent displayed no empathy for his victims. Rather, the respondent denied and minimised his offending and partly blamed 'the system' for its misinterpretation of his behaviour.

99 Dr Wynn Owen noted that the respondent reported no current psychiatric symptomotology. He noted that he had sought assistance from the prison counselling service on several occasions since he was notified that this application would be made. It was noted that his reaction to the news was characterised by tearfulness, anxiety about the future and a fear of dying in prison. There is no suggestion of a major depressive or anxiety disorder or of suicidal or deliberate self harm intent.

100 Dr Wynn Owen conducted a mental state examination and reported his conclusion. He said that the respondent was superficially co-operative at interview but attempted at all times to control the line of questioning. He avoided direct answers to specific questions, challenged the relevance of questioning and gave very little information. He was at times more aroused, becoming loud and occasionally getting to his feet in a manner which could be perceived as threatening. The respondent terminated the second interview having become angry about Dr Wynn Owen commenting about his 'criminal career'. Dr Wynn Owen said that there was no evidence of disorder of thought stream or formal content. The respondent was alert and orientated to time, place and person. He appeared grossly cognitively intact.

101 Dr Wynn Owen made a psychiatric diagnosis of an antisocial personality disorder.

102 Dr Wynn Owen noted that the respondent stated that he had 'changed' and that he wanted to 'stay out of trouble' and 'live a good life'. He had no plans for work or other past times. Dr Wynn Owen noted that in 1992 the respondent also considered that treatment was unnecessary as he believed he would not re-offend and that he would not go back to prison as he might die there.

103 Under the heading of 'Risk Assessment', Dr Wynn Owen noted that previous assessments had stressed the importance of the respondent's meaningful engaging in remedial programmes to address his offending. Dr Wynn Owen found, as did Dr Brett, that the respondent scored 8 on the Static 99 assessment. He said that four out of ten individuals with that score would re-offend over a period of five years. Based on the Static 99, this placed the respondent in a high risk of sexual re-offending category, relative to other adult male sex offenders.

104 Dr Wynn Owen's view was that as the respondent was aged 53 at the time of his most recent sex offence, age modification of risk was not indicated.

105 In respect to the psychopathy check list Dr Wynn Owen noted that evidence suggested that the presence of psychopathy in a sexual offender increased the likelihood of sexual re-offending. It had been found in one study that about 70% of individuals with deviant sexual arousal and a PCL-R score of 25 or more committed a new sexual offence compared with 40% in other groups. This finding was replicated in a later study. Dr Wynn Owen said that the respondent PCL-R of 29 was predictive of a high risk of sexual re-offending as well as indicating a medium to high level of psychopathy.

106 Dr Wynn Owen concluded that the respondent was a high risk of sexual re-offending.

107 Under the heading of 'Opinion', amongst other things, Dr Wynn Owen said that in his opinion the respondent required insight to achieve any modification of his risk of re-offending. He said that this may be achieved through successful participation in intensive structured programmes to address his sexual offending and violent offending. He said that the fact that the respondent had not participated in such programmes to date nor shown any shift from his stance of denial and minimisation did not augur well. Dr Wynn Owen noted that the respondent's word could not be trusted as he had demonstrated himself to be unreliable in situations of trust such as bail, parole, home leave from prison, and commitments not to re-offend.

Extent to which respondent co-operated when examined by the psychiatrists

108 The respondent co-operated with Dr Brett to a greater extent than he did with Dr Wynn Owen. However, even with Dr Brett, he was difficult to engage and was often superficial in his responses. He liked to dominate the interviews and did not like it when he was directed. As I have said, at a point in his second interview with Dr Brett he became aroused and, in effect, terminated the interview.

109 Dr Wynn Owen said that the respondent co-operated with him during the first interview but did not do so in the second interview when Dr Wynn Owen was deliberately 'challenging'. The respondent terminated his second interview with Dr Wynn Owen. I have also noted that Dr Wynn Owen found the respondent's answers to be superficial.

110 It is notable that the respondent denied or minimised his sexual offending when discussing it with both psychiatrists and was not prepared to examine the reasons for his sexual offending or to devise plans to minimise the chances of it re-occurring.

Other medical, psychiatric, psychological, or other assessments relating to the respondent

111 In my summary of the evidence, I have referred to other assessments made in respect to the respondent. I take these into account but also take into account that I have not had the benefit of hearing oral evidence from the authors.

Information indicating whether or not the respondent has a propensity to commit serious sexual offences in the future

112 I have received a great deal of evidence which is information of assistance in indicating whether or not the respondent has a propensity to commit serious sexual offences in the future. I take propensity to mean an inclination or a tendency. In my opinion, the following information is important information in indicating that the respondent has a propensity to commit serious sexual offences in the future:

(a) the respondent's past history of serious sexual offending;

(b) the respondent's failure to obtain treatment to assist in his rehabilitation;

(d) the respondent's failure to devise plans to assist him not to re-offend once released;

(e) the respondent's poor insight into the existence of his propensity to commit serious sexual offences and of the need to address that propensity;

(f) the respondent's extremely long and extensive criminal record for non-sexual offending; and

(g) the respondent's poor history of compliance with bail and parole orders.

113 There is some information which indicates that the respondent's propensity to commit serious sexual offences in the future may have diminished over time. It is that the respondent is now 61 years of age, his general offending reduced on his release from prison in 1995 and the respondent has some serious health problems. However, in respect to his age, it is of grave concern that his most recent serious sexual offence was committed when he was a very mature man; that is at 53 years of age and that in the last 4 1/2 years that he has spent in custody, he has committed a considerable number of prison offences. There is no evidence that his physical health problems will prevent him from committing further serious sexual offences or that they significantly diminish the risk of him committing further serious sexual offences.

Whether or not there is any pattern of offending behaviour

114 There is no pattern of offending behaviour in respect to the respondent's sexual offences. However, there are some characteristics that have repeated themselves. These include the commission of offences with a co-offender (who also commits a serious sexual offence against the victim), the taking of victims to isolated areas in a motor vehicle to facilitate the offending and the female gender of the victims.

Efforts by the respondent to address the cause of his offending behaviour

115 I have already summarised the evidence in respect to this issue. I conclude, that the respondent's efforts to address the cause or causes of his offending behaviour have been negligible. I do not regard his view that he has changed or that he simply will not offend in the future to be a creditable effort on his part to address the cause or causes of his offending behaviour.

Whether or not the respondent's participation in any rehabilitation programme has had a positive effect on him

116 The respondent has only participated in one rehabilitation programme whilst in custody. This was prematurely terminated. It does not seem to me that the programme had any positive effect on him.

117 The respondent has been undergoing one to one counselling with a counsellor for some time. Unfortunately, I did not receive any report or evidence from that counsellor. I am prepared to admit of the possibility that this counselling has had a positive effect on the respondent. However, I am cautious in placing too much weight on it given the respondent's reluctance to discuss his offending, the causes of his serious sexual offending or his plans to prevent serious sexual offending in future with either of the psychiatrists. It would seem to me that if the counselling was having a very beneficial effect, the respondent would have engaged openly and meaningfully with the psychiatrists about these topics.

The respondent's antecedents and criminal record

118 I have already detailed these. I acknowledge that the respondent had a very disrupted and emotionally barren childhood until he went to live with his grandmother. This has undoubtedly contributed to his offending. I do not accept the respondent's view that his criminal record, in particular his sexual offending, is a consequence of the racist application of 'white man's law'.

119 Objectively, the respondent's antecedents and criminal record are important aspects of the evidence which go towards proving his risk of committing further serious sexual offences.

The risk, if the respondent were not subject to a continuing detention order or a supervision order, of the respondent committing a serious sexual offence

120 Based on the evidence, I have no doubt that if the respondent is not subject to a continuing detention order, or a supervision order there is a risk he will commit a serious sexual offence in the future. His history of offending, in particular his commission of serious sexual offences on four separate occasions over 30 years, his denial or minimisation of his serious sexual offences and his failure to undergo treatment or rehabilitative programmes establishes the existence of that risk. The issue, under the Act, is whether that risk is unacceptable.

121 The respondent submits that, given his age, his health problems and his determination not to return to prison, the risk is not unacceptable.

122 I have already dealt with the issue of his physical health. It does not seem to me that the respondent's physical health significantly reduces his risk of committing serious sexual offences in the future.

123 I am satisfied that age is a factor that does correlate with reducing the recidivism risk in sexual offenders over time. However, I take into account Dr Wynn Owen's and to a lesser extent, Dr Poli's views to the effect that the fact that the respondent committed his last serious sexual offence at the age of 53 indicates that in his case age is not a significant factor in reducing his risk of committing further serious sexual offences. I also take into account that the respondent has committed prison offences until recently. Also relevant is Dr Brett's view that whilst age is a relevant factor in reducing the respondent's risk of recidivism, he is still of the view that the respondent is at high risk of re-offending by the commission of further serious sexual offences.

124 I have already dealt with the third factor relied upon by the respondent. That is that he is personally motivated and determined not to return to prison. I am not prepared to put any weight on that sentiment given his previous expression of similar sentiments prior to him re-offending when he was released into the community.

The need to protect members of the community from that risk

125 In my view, there is a need to protect the community from the risk that the respondent will commit further serious sexual offences. Serious sexual offences are just that; they are serious and they are offences which violate a victim's right to personal safety and sexual autonomy.

The potential consequence of an order under the Act for the respondent

126 The respondent is institutionalised because he has spent a large portion of his life in custody. I do not doubt that the respondent is terrified of dying in prison. It is axiomatic that as he ages and remains in custody that risk becomes greater.

127 I am also satisfied that the respondent genuinely holds the view that he does not need supervision in the community. I accept and take into account that the respondent wishes to spend time in the community with his wife and children from whom he has been separated for a long time.

128 Any order made under the Act will have a significant effect on the respondent. The order which would have the most impact would be an order for his continuing detention. I accept that this would have a deleterious effect on his mental and emotional health. .

The type of sexual offence which the respondent is likely to commit

129 I have already referred to Dr Brett's view that the respondent is likely to commit a sexual offence of the same kind that he has committed in the past. In my view this opinion is highly credible. The respondent's sexual offending is consistent at least to the extent that it has usually included sexual intercourse without the consent of the victim. It is not possible to predict whether the offence is likely to be against a female adult or a child. The respondent has offended against both.

Conclusion: whether there is an unacceptable risk that if the respondent were not subject to a continuing detention order or a supervision order, he will commit a serious sexual offence

130 I have taken into account all the evidence and all the comments that I have made in respect to it. The evidence includes the opinions and evidence of Dr Brett and Dr Wynn Owen. I have also considered and taken into account the inferences that can be drawn from the defendant's past offending. I have considered those matters in light of the standard of proof, the statutory provisions and the Court of Appeal's dicta in Williams' case. I conclude that the DPP has proven that there is an unacceptable risk that if the respondent is not subject to a continuing detention order or a supervision order, he will commit a serious sexual offence. Thus, I find that the respondent is a serious danger to the community.

Continuing detention order or supervision order

131 In my opinion it is significant that both Dr Brett and Dr Wynn Owen considered that the respondent's risk of re-offending could be considerably reduced if he was subject to close supervision within the community. Dr Wynn Owen was more optimistic than Dr Brett about a reduction in risk being achieved by the respondent's participation in counselling.

132 The applicant suggested various conditions that could be placed upon the respondent should I determine that it was appropriate to place him on a supervision order. In my opinion these proposed orders are too wide and allow too much discretion to those supervising the respondent. Given my finding that there is an unacceptable risk of the respondent committing a serious sexual offence in the future, in my view it is incumbent upon the court to ensure that if he is released he is subject to conditions of supervision that reduce that risk to an acceptable level. The applicant advised me that the supervising authorities would comply with any orders that I made in respect to supervision.

133 Both psychiatrists were of the view that it was necessary for the respondent to have one-to-one counselling on a very regular basis if he was to be released into the community. I agree with the assessment of the psychiatrists. It is clear that the respondent is not suitable to undergo sexual offender treatment programme in a group setting at this time due to his denial or minimisation of his offending. The belief is that intensive psychological counselling in the community will have two benefits. The first is that the respondent will progressively gain insight into his offending and will thereby become suitable for sexual offender treatment programs. The second is that the counselling will form part of the close supervision and monitoring of the respondent. There will be less chance of him re-offending because action will be able to be taken if he misses counselling sessions or fails to engage in a meaningful way with the counsellor.

134 On 30 November I told the parties that my preliminary finding was that the respondent is a serious danger to the community. I advised them that the evidence in respect to whether it was appropriate to make a supervision or detention order was deficient in one respect. That was because the witness, Alison Tansley, the then co-ordinator of the Dangerous Sexual Offenders Programme for the Department of Corrective Services gave evidence that one-to-one counselling with a psychologist could be provided to Mr Woods in the community as long as he was assessed as suitable for it in terms of his willingness and motivation to undergo such counselling.

135 Ms Tansley said that the assessment, which would be done by the psychologist, would take three weeks. Given that both psychiatrists said that psychological counselling is essential to reduce the respondent's risk of offending if he was released into the community, I considered that it would not be appropriate for me to make a decision to make a detention order or to release the respondent on a supervision order unless he was assessed as suitable or unsuitable for such therapy.

136 I directed, pursuant to the Act s 43 that the DPP provide the court with a psychological assessment of the respondent's suitability for cognitive skills or other one-to-one psychological counselling in the community by 21 December 2007.

137 The report which I have received is a grossly unsatisfactory attempt to satisfy my direction. The author, Tarmala Caple, completed the report in approximately 10 days, despite Ms Tansley's evidence that it would take three weeks to prepare. The author did not interview the respondent, despite Ms Tansley's evidence that this may have to occur on more than one occasion. The author relied solely on written material. After hearing and considering the evidence, I am more familiar with the material than the author. The author does not appear to have had any regard to the oral evidence of the psychiatrists. For these reasons, I decline to place any weight on the report.

138 This leaves me in an invidious position. I have no confidence that the applicant will produce a report which complies with my direction within a satisfactory time frame. I further have no confidence that any report I receive will not be compromised by the level of resources which the Department of Corrective Services has devoted to the enforcement of this legislation.

139 After considering the situation in much depth I have decided that my obligation is to decide this application on the basis of the evidence before me.

140 I reiterate my previously expressed finding that the respondent is a serious danger to the community.

141 The next step is to decide whether to make a continuing detention order or a supervision order. The Act s 17(2) says in deciding whether to make one of these orders 'the paramount consideration is the need to ensure adequate protection of the community'.

142 After considering all of the evidence I am satisfied that the community will be adequately protected by a supervision order. There will be stringent obligations on the respondent and the relevant government authorities to meet the terms of the supervision order, the aim of which is to provide very close supervision of the respondent and appropriate one-to-one counselling.

143 In Williams, Wheeler J said that the court can assume that, if a supervision order is made, 'the executive will perform its function of protecting the community by the provision of appropriate assessment and resources' [81]. I will impose conditions on the supervision order on the basis of this assumption.

144 The Act s 18 requires that certain conditions be placed on a supervision order. In addition, the psychiatrists suggested that other conditions were necessary to reduce the respondent's risk of committing a serious sexual offence. I agree with their suggestions, although some of them have to be modified for practical reasons.

145 In order to adequately protect the community, the supervision order is to include the requirements set out at par 2(a) - (f), (i) - (k), (m) - (p) and (s) of the applicant's minute of proposed orders dated 29 October 2007.

146 In addition the supervision order is to include the following requirements:

To reside with Rona Maureen Woods at the address specified by Mrs Woods in her evidence, unless authorised by a community corrections officer (cco) to be absent or to reside elsewhere;
To have no contact with any child under the age of 16 years other than the respondent's lineal children or grandchildren unless the supervision is supervised by Rona Maureen Woods or by another adult the identity of whom is approved in advance by a cco; and
To attend and co-operate with psychological counselling with a psychologist at least once per week for the first 12 months of the order as directed by a cco. Such counselling to be provided, if possible, by a male, culturally appropriate psychologist.

147 I will hear the parties as to necessity for proposed condition 2(l).

148 Finally, I have to decide the length of the order. The applicant requested an order for 10 years. Having regard to the age of the respondent, I am of the opinion that an order for 7 years is of sufficient length to ensure adequate protection of the community.

Sexual Offenders Act 2006

THE STATE OF WESTERN AUSTRALIA -v- WOODS [2007] WASC 320 (21 December 2007)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (198 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- WOODS [2007] WASC 320 (21 December 2007)

Extent to which respondent co-operated when examined by the psychiatrists

Other medical, psychiatric, psychological, or other assessments relating to the respondent

Information indicating whether or not the respondent has a propensity to commit serious sexual offences in the future

Whether or not there is any pattern of offending behaviour

Efforts by the respondent to address the cause of his offending behaviour

Whether or not the respondent's participation in any rehabilitation programme has had a positive effect on him

The respondent's antecedents and criminal record

The risk, if the respondent were not subject to a continuing detention order or a supervision order, of the respondent committing a serious sexual offence

Legislation Cited (2)