Director of Public Prosecutions for Western Australia v Brown [No 3] - [2011] WASC 201

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BROWN [No 3] [2011] WASC 201

CORAM: EM HEENAN J

HEARD: 8 AUGUST 2011

DELIVERED : 8 AUGUST 2011

PUBLISHED : 16 AUGUST 2011

FILE NO/S: MCS 13 of 2010

MATTER :Sections 8, 14 and 17(1) of the Dangerous Sexual Offenders Act 2006 (WA)

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
ALWYN WAYNE BROWN
Respondent

Catchwords:

Criminal law - Dangerous sexual offender - First annual review - Evidence taken from DPP - Application for adjournment by offender - Prospects of further continued improvement by offender over next three to six months - Frequency and timing of reviews

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant: Mr J Scholz
Respondent: Mr C B Boyce and Mr A P Tehan

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Aboriginal Legal Service (WA)

Case(s) referred to in judgment(s):

Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405
Director of Public Prosecutions for Western Australia v Brown [No 2] [2011] WASC 191
The State of Western Australia v Hart [2008] WASC 43

EM HEENAN J: The court has been sitting to conduct the first annual review of a continuing detention order made under the provisions of the Dangerous Sexual Offenders Act 2006 (WA) (the Act), for the continuing detention of the respondent Alwyn Wayne Brown. That order was made on 23 December 2010, for reasons which I then published: Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405.
In June 2011 I heard an application by the Director for further directions as to the date upon which the annual review was due to occur. For reasons which I gave briefly on that occasion, I declined to vary the orders and declarations which had been made on 23 December 2010, which directed among other things that that order would be due for review on, or as soon as practicable after, 26 June 2011 and, by further directions made on 21 June 2011, fixed 8 August 2011 for the hearing and conduct of that review. Reasons for the decision of 21 June 2011 were published on 11 August 2011: Director of Public Prosecutions for Western Australia v Brown [No 2] [2011] WASC 191.
Today the court has embarked upon the hearing of the annual review as directed, and evidence has been taken on behalf of the Director from four witnesses, and reports of those witnesses and a Department of Corrective Services individual management plan have been received as exhibits A1 to A6. There is a draft supervision order containing standard terms indicating the conditions which might be incorporated, were a supervision order to be substituted. In addition, oral evidence has been taken from the four witnesses, Dr Febbo, Dr Capel, Ms Brayshaw and Ms Wager, and each has been cross‑examined. Counsel for the Director has closed his case.
Before coming to the question of whether or not any evidence on the review is to be adduced for the respondent, counsel for the respondent has submitted that this hearing ought to be adjourned for a period of perhaps three months or six months in order to allow further evidence to be presented as to the progress of Mr Brown between now and then. There is some basis in the evidence which has been taken to suggest that material progress towards Mr Brown's eventual rehabilitation may be achieved, perhaps over a time frame between three to six months, if he makes continuing good response to the psychotherapeutic intervention programs which have been carried out over the last six months and if, as is contemplated, he commences on anti‑libidinal medication in the near future. That is a regime which Dr Febbo contemplates may be productive, and which has been raised with Mr Brown by Dr Haynes of the prison health services, and which Mr Brown is now willing to undergo.
The basis for this adjournment application as advanced is that, without formally or necessarily in any other way conceding the point, one view of the evidence presently before the court, specifically the supplementary report of Dr Febbo dated 4 August 2011, may well be that Mr Brown remains at high risk of committing a serious sexual offence if not subject to a continuing detention or supervision order and that, in Dr Febbo's opinion, it would be premature for him to be released on a supervision order at this stage. Without going into the details, I can say that the evidence of Dr Capel would seem to support that view taken by Dr Febbo. Dr Capel also recognises the possibility for significant improvement over a six‑month period or thereabouts. The other reports dealing with suitability of accommodation under a supervision order and continuing treatment in the community do not really bear on this question.
The issue thrown up by this application for an adjournment, and the opposition to it by counsel for the DPP, raises squarely the provisions of the Act relating to periodical review of orders for continuing detention and their proper interpretation. These are to be found in Pt 3 of the Act, which begins with s 28:
The purpose of this Part is to ensure that a person's detention under a continuing detention order is regularly reviewed.
Section 29 provides for a person under a continuing detention order to have the order periodically reviewed, with the first review to be carried out as soon as practicable after the end of a period of one year commencing when the person is first in custody on a day on which the person would not have been in custody had the order not been made, and as soon as practicable after the end of the period of one year commencing when the detention was most recently reviewed under that section, or otherwise under s 30. Section 30 provides for applications for review on the initiative of the offender. Such applications may only be brought after the first annual review, and then only by leave of the court. To obtain leave under s 30(2) the applicant must satisfy the court that there are exceptional circumstances that relate to that person.
Whenever an application under Pt 3 is made, s 31(1) directs that the court must, as soon as practicable after it is made, give directions for the hearing of the application, and then by s 31(2):
The application must be heard, and the review must be carried out, as soon as it is practicable to do so in accordance with any directions of the court.
By s 33(1), on any such application, if the court does not find that the person subject to the order remains a serious danger to the community, the court must rescind the order which had previously been made.
As I have said in Brown v Director of Public Prosecutions for Western Australia [No 2], the framework of the Act calls for regular periodic reviews at annual, or at least as close as practicable to annual, periods with the additional provision that after the first review, an application may be made by the offender, in exceptional circumstances, if leave is granted. Therefore, there is an obligation on the court on any such review to hear and determine the review. So much is stipulated by s 31(2).
Although I can understand and appreciate the dilemma faced by Mr Brown and his advisers in the present circumstances, I cannot avoid the conclusion that to adjourn this application in order to let another period, whether three months or six months or some other period, elapse, and to evaluate the progress made after that passage of time, would not be to conduct or to complete the first annual review. That would be to conduct the first annual review not as soon as practicable 12 months after the making of the detention order, or the confinement of the prisoner, by virtue of an order made under this Act under s 14 as I upheld but, rather, to review the position after 18 months or whatever the period would be, after one adds the notional six months or some other period to the first 12 months. That would substantially alter the cyclical nature and frequency of reviews. For example, if a continuing detention order remained after that review, when would the next order be due, 12 months after that or 12 months after the first review could have been completed, as soon as practicably after it had been commenced?
The annual review must be held and must be completed as soon as practicable after the 12‑month period, and then if there is a material change in circumstances which occurs before the next review, and if it is one which creates exceptional circumstances, there is the option for the offender to apply for leave under s 30. I cannot, of course, bind this court to consider what the situation might be in the event of an application under s 30, but it would seem that it would certainly be arguable that a change in circumstances which inclined an advising psychiatrist or psychologist to come to the view that a continuing detention order was no longer necessary, and that a supervision order would suffice in view of material changes in the respondent's condition and prospects after six months, would be nothing other than an exceptional circumstance for the purpose of s 30(2). See also Murray J in The State of Western Australia v Hart [2008] WASC 43 [8] Of course, that could only be decided if and when the issue came up for decision by the court.
For these reasons, therefore, the application for the adjournment is refused.