Criminal law - Dangerous sexual offender - Unfairness - Whether proceedings should be stayed - Whether detention order necessary

Dangerous Sexual Offenders Act 2006 (WA)

Christianos, Ex Parte Director of Public Prosecutions (1992) 9 WAR 345

Walton v Gardiner (1992) 174 CLR 378

Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

1 The judgment in this matter was delivered extempore on 30 November 2009 and 9 February 2010 and has been edited from the transcript.

2 The Director of Public Prosecutions (WA) (DPP) made application to have Mr Teague declared a dangerous sexual offender and for an order for his continuing detention. He responded with an application to have the proceedings stayed permanently.

3 Mr Teague is in an unfortunate position. During imprisonment he wished to complete a Sex Offender's Treatment Programme (SOTP). Through circumstances beyond his control he was not able to do so. This led to parole being refused and the DPP's application that he should be detained beyond his term of imprisonment, in part, because he had not done a programme.

4 At the commencement of the hearing on 30 November 2009, counsel for the respondent moved that the proceedings be stayed as an abuse of process. I dismissed that application for reasons I gave at the time and are now substantially reproduced.

5 When the Court's jurisdiction is regularly invoked, there is a presumption that it will be exercised. A Court, however, may stay proceedings in its inherent power if satisfied that the proceedings are brought for an improper purpose or are oppressive or will lead to an unacceptable unfairness that no other measure can prevent.

6 Because of the presumption, a stay of proceedings is exceptional and an applicant for a stay must discharge the onus of establishing why a stay is necessary. The categories cannot be exhaustively defined. The authorities are well settled and accepted by counsel on both sides and so I merely refer to Walton v Gardiner (1992) 174 CLR 378 and Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, together with Christianos, Ex Parte Director of Public Prosecutions (1992) 9 WAR 345 in relation to improper purpose.

7 Counsel for the respondent focuses upon evidentiary material, particularly from Mr Mark Glasson, Director, Offender Services at pages 414 and 418 of volume 2 of the book of materials, and emails which were tendered this morning. She also draws attention to the respondent's imprisonment history and parole considerations and other matters.

8 Counsel does not assert that these proceedings were brought for an improper purpose and indeed there is no evidence that the DPP, who is, after all, the applicant, was moved by any improper purpose. The Department of Corrective Services may be regarded though as instructing the DPP or at the least recommending consideration of a particular offender for a DSO application.

9 It seems to me that the respondent is in a Kafkaesque situation, reminiscent of 'The Trial'. Things happen to him which he does not understand. Although he expressed keenness to undergo a SOTP, for reasons beyond his control he has not participated. Participation has been shown to reduce the incidence of reoffending by up to 30%. Mr Glasson wrote this way:

The Aboriginal Legal Service, on behalf of Mr Teague has alleged the State has failed to provide sufficient treatment for Mr Teague during his sentence.

The Department acknowledges that the system has failed to provide all assessed rehabilitative treatment requirements for Mr Teague and the following report will outline that there were several extenuating circumstances that impacted on the Department's ability to engage Mr Teague in a sex offender treatment program within his sentence. These have included the shortness of Mr Teague's sentence, the general shortfall in program provision in Bunbury and the availability of suitably qualified staff during 2008 to deliver the programs. (414)

10 The balance of the letter outlines in great detail all of those matters together with what is hoped to be an improvement from now on. The department set up a Dangerous Sexual Offenders Review Committee, for offenders who met the criteria under the Dangerous Sexual Offenders Act.

11 The eligibility for criteria endorsed by the Attorney General on 19 March 2007 are self-set in that the committee is not a statutory body. They are:

(1) sex offenders with an effective two year or greater finite term of imprisonment for a serious sexual offence;

(2) sex offenders with an effective two year or greater term of imprisonment for a serious sexual offence who have been denied or deferred early release on a parole order by the Prisoner Review Board; and

(3) sex offenders with an effective two year or greater term of imprisonment for a serious sexual offence who have been granted parole and have been referred for review by the Prisoner Review Board to the committee nine months prior to the cessation of their parole order.

12 The latter does not seem to be particularly relevant but the respondent would appear to fall into criteria (2) and herein lies the conundrum. Through no fault of his own, the Department of Corrective Services has not made a SOTP available to him. He was refused parole, in part, because of his unaddressed behaviour, and now the refusal of parole is used as a criteria to recommend the application to have Mr Teague declared a dangerous sex offender.

13 Moreover, because he has been unable to address his behaviour he is denied the opportunity to persuade a Court that either his risk is an acceptable risk or that a supervision order should be made rather than a detention order. Clearly the circumstances give rise to considerable unfairness and the potential for injustice. However, I am not persuaded that I should take the extreme step of staying the proceedings.

14 There is, as I say, no improper purpose in bringing the proceedings; they are not oppressive, in my view, despite the unfairness. The DPP's application is based on a number of other criteria to be found under the Dangerous Sexual Offenders Act in s 8, in addition to the unaddressed behaviour. The unaddressed behaviour is important but not crucial.

15 It is in the interests of justice that the DPP's application is determined and I am satisfied it can be properly resolved despite the obvious unfairness to the respondent in his unaddressed behaviour. I do not consider that the extreme step of a stay is warranted in this case.

16 The application was then dismissed and the hearing adjourned until 9 February 2010, in part, to enable to the respondent's cognitive function to be assessed. That was done but under very unsatisfactory conditions and the respondent was transferred before a further test could be administered. It is as if bureaucratic inertia seems to be designed to give the respondent the hardest possible opportunity for release.

The respondent is a serious danger to the community

17 On 9 February 2010, after hearing further evidence and hearing submissions, I found that the respondent was a serious danger to the community for the following reasons which I outlined in court as follows.

18 Based on the evidence I have heard and the transcript I make a finding that the respondent is a serious danger to the community. I do that in light of the opinion of both Dr Wojnarowska and Dr Febbo, including the psychiatric report of Dr Srna, and the psychological reports, including the recent psychological reassessment by Ms Marley.

19 I do not know whether he has a propensity to commit sexual crimes in the future, because he is untreated; and it may be that he does not. There has been a pattern of offending in that it is targeted at young children in a largely non-violent way. He, through no fault of his own, has not addressed the cause of his offending because he has not been able to participate in a SOTP.

20 His antecedents and criminal record give rise to concern. I previously said that I think the Dangerous Sexual Offenders Act s 7(h) is redundant or circular. I have taken into account, so far as I think they are relevant, all the matters that have been previously raised by counsel for the respondent in reaching the conclusion that I am satisfied to the appropriate standard that he is a serious danger to the community unless a detention or supervision order is made.

21 After hearing further submissions as to the proper order that should be made I concluded that the respondent ought to remain in detention for reasons I gave at the time and now reproduce:

22 Having found that the respondent is a serious danger to the community, I must make an order for detention or for supervision. In deciding which order to make, the paramount consideration is the safety of the community. The evidence of Dr Wojnarowska, Dr Febbo and of Ms Marley is that the most appropriate course is the intensive sex supervision programme (ISOTP) which is available only in custody.

23 For various reasons, the fault of which cannot be generally attributed to the respondent, the respondent is at this moment I believe unsuitable for immediate release in terms of accommodation, support and other matters. To release him now even with supervision, and with the sorts of orders that I might contemplate, would be stretching too far. Based on the psychiatric and psychological evidence, it would impose too great a burden upon the respondent, which I doubt he could sustain.

24 More particularly and principally, because the recommendation of the psychiatrists is that the respondent undertake the comprehensive course only available in a custodial setting, I would require exceptional reasons to nevertheless release him on supervision to a medium intensity course which does not cover the same material. I propose therefore then to make an order for detention.

25 There are two things about that. I am making that order specifically because, as has been confirmed this morning, he is booked into the ISOTP and that is a condition as it were of the detention order. The second matter is that counsel for the applicant has helpfully recognised the problem which is that he would be suitable for release earlier than the normal period for annual review. I expect that the DPP will bring this matter on for review at some convenient time after the respondent has been assessed at the conclusion of the ISOTP so that the court can then conduct a review to see whether he is at that stage an acceptable risk for supervision.

(1) a finding that the respondent is a serious danger to the community;

(2) an order that he be detained in custody for an indefinite term for control, care or treatment;

(3) an order that the DPP assess and bring application for review following the completion of the ISOTP that the respondent is scheduled to undertake.

27 The order for detention dates from the date on which the sentence of imprisonment expired being 1 December 2009.