This decision concerns an application seeking a further order pursuant to s 19B of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA). The psychiatric evidence indicated a risk of general criminal offending particularly in a domestically violent setting. The reasons note that the DPSOA is not concerned with persons who pose a risk of general offending, but is only concerned with the adequate protection of the community from the unacceptable risk of commission of serious sexual offences. The application was therefore dismissed.
16 April 2018
On 13 October 2004 the respondent was convicted, on his own plea of guilty, of violent offences including rape and robbery with personal violence. He received a head sentence of four and a half years’ imprisonment. . He was aged 19 at the time of the earliest offences. . On 22 November 2007, at the end of that term, an order was made that respondent be released under a supervision order for a period of 10 years under the DPSOA. . He was then aged 35. .
The count of rape involved digital penetration of a two-year-old girl, which caused significant tearing. The respondent had described the act as a form of discipline, after the child sat with her legs apart. .
The respondent contravened the supervision order during the ten-year period. In March 2009, he removed his electronic monitoring device. . In July 2009, he refused to receive visits from Corrective Services officers and had drunk alcohol. . In April 2015, he pleaded guilty to one charge of common assault in breach of a domestic violence order. . In 2016, he had contact with his former client in breach of a direction given by Corrective Services. . Each contravention involved a period of incarceration.
A further supervision order may only be made if the court is satisfied the released prisoner is a serious danger to the community in the absence of such an order. . That is, if there is an unacceptable risk that the released prisoner will commit another serious sexual offence if a further supervision order is not made. .
Despite the nature of this offence, the psychiatric evidence did not indicate paedophilia or paraphilia. . None of the psychiatrists predicted offending of that kind as likely to recur. .
Relevantly for the application, the risk that was identified as posed by the respondent was of committing a sexual offence involving violence, in the context of a domestically violent situation. . The psychiatric evidence in the case made the link on the basis of a “general association” between general violence and sexual violence. .
Her Honour considered that the material did not support a finding that there was a propensity on the part of the respondent to commit serious sexual offences in the future (s 13(4)(c)). The identified risk was based upon extrapolation from the risk of general criminal offending, including violent offending. As her Honour explained, that there is general association between violent offending and sexual offending, particularly in a domestic violence context, is not indicative of propensity. .
Her Honour found that the evidence was not sufficient to support a finding to the requisite high degree of probability that the respondent was a serious danger to the community if no further supervision order was made. . The reasons note that the DPSOA is not concerned with persons who pose a risk of general criminal offending, nor general violent offending, even in a domestic violence context. The legislation is only concerned with the adequate protection of the community from the unacceptable risk of commission of serious sexual offences. . The application was dismissed. .
K W Gover of Counsel