Director of Public Prosecutions for Western Australia v Narkle [No 3]
[2013] WASC 1
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- NARKLE [No 3] [2013] WASC 1
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 1 | |
| Case No: | MCS:86/2009 | 13 DECEMBER 2012 | |
| Coram: | McKECHNIE J | 7/01/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Supervision order for 4 years | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA SHANE NARKLE |
Catchwords: | Dangerous sexual offender Whether community adequately protected by a supervision order No new principles |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA) |
Case References: | DPP v Narkle [2010] WASC 7 Narkle v Director of Public Prosecutions (WA) (No 2) [2011] WASC 324 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
SHANE NARKLE
Respondent
Catchwords:
Dangerous sexual offender - Whether community adequately protected by a supervision order - No new principles
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Supervision order for 4 years
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Ms L Petrusa
Respondent : Ms M R Barone
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Barone Criminal Lawyers
Case(s) referred to in judgment(s):
DPP v Narkle [2010] WASC 7
Narkle v Director of Public Prosecutions (WA) (No 2) [2011] WASC 324
(Page 3)
- McKECHNIE J:
Why this matter comes to court
1 On 18 January 2010 the respondent was declared a dangerous sexual offender and an indefinite detention order was made: DPP v Narkle [2010] WASC 7. On 29 November 2011, I expressly declined to rescind the detention order: Narkle v Director of Public Prosecutions (WA) (No 2) [2011] WASC 324.
2 On 31 August 2012, I ordered that an annual review of detention be heard on 13 December 2012 and that a psychiatrist, Dr Mark Hall, provide a report. At the hearing, counsel for the DPP tendered 'by consent', a book of documents and called as witnesses Dr Hall, Mr Ryan Bell, a clinical psychologist, and Ms Amber Webster, an acting Senior community Corrections Officer.
3 Counsel for the respondent called Ms Teresa Kirk, a Senior Case Manager from Outcare.
4 I have concluded that the respondent remains a serious danger to the community. Bearing in mind the paramount consideration, which is the protection of the community, I am nevertheless satisfied that the community will be adequately protected if the respondent is released on a supervision order with strict conditions for a period of 4 years. These are my reasons for reaching that conclusion.
Serious danger to the community
5 The evidence conclusively establishes that the respondent remains a serious danger to the community . Counsel for the respondent concedes that he remains a serious danger.
6 Dr Hall is of opinion that the respondent remains at high risk of re-offending:
Mr Narkle is at high risk of reoffending violently and sexually if not subject to a continuing detention or supervision order. The essence of Mr Narkle's risk lies in;
• His previous offending behaviour.
• Denial of sexual offending.
• Negative attitudes to women.
(Page 4)
- • Antisocial and narcissistic personality structure with a propensity for violence.
• Unaddressed substance use treatment needs and high likelihood of resuming alcohol use.
• Unaddressed sexual offending treatment needs and limited prospects for gains in this respect.
• The potential for destabilisation by social and family networks.
7 Dr Hall's report dated 27 November 2012 is thorough. In his examination of re-offending scenarios he says:
The imminence of Mr Narkle's potential reoffending would depend on how quickly he relapses to alcohol abuse, and thence how soon an opportunity to offend arises in that context. The warning signs that might signal that the risk is increasing or imminent include a relapse to alcohol use, or missed supervision sessions. Given that Mr Narkle offends against known victims, and does so impulsively and opportunistically, offending against multiple victims over time is unlikely as Mr Narkle would probably be apprehended relatively quickly. I am also of the view that Mr Narkle's risk of reoffending is chronic, as he is not as physically frail in my opinion as he perceives himself to be. The offending scenario of a repeat of previous behaviour such as penetration of an adult female using physical violence is the most likely of the possible scenarios presented. However, an escalation and change scenario as described above is certainly possible. Under the circumstances, a male victim would most likely be one who is vulnerable by way of being weaker than Mr Narkle and himself intoxicated. A child or adolescent victim would most likely be one readily available in the immediate environment and inadequately supervised by the adults present.
Why a supervision order is appropriate
8 In Narkle v DPP (No 2), I concluded that while it is not necessary for an offender to admit their offending, in the absence of an admission and successful completion of a sexual offender's treatment programme, there should be other grounds for concluding that the risk to the community could be adequately managed by a supervision order.
Counselling
9 During the course of the past year, the DSO Unit has attempted to engage in therapeutic counselling. However, the relationship broke down:
Mr Narkle was assessed on 17 January 2012 by a DSO psychologist in order to determine whether he would benefit from engagement with psychological services. Although Mr Narkle demonstrated poor
(Page 5)
- motivation to engage with a psychologist and hostility toward the process of psychological therapy, he has attended regular psychotherapy sessions from 17 January 2012 until 2 October 2012.
Throughout his course of therapy, Mr Narkle demonstrated poor engagement with the therapy process and hostility towards his psychologist as evidenced by verbal aggression and swearing. On 2 October 2012, a decision was made to discontinue individual psychotherapy with Mr Narkle as he had stormed out of the previous two counselling sessions.
10 Mr Bell is of opinion that the respondent has demonstrated poor motivation to meet the treatment targets identified and it is unlikely the targets will be met unless he develops a stronger commitment to the therapy processes. In relation to future treatment:
Over the past eleven months Mr Narkle has not responded well to counselling and it is likely that he will become hostile if goals related to his offending behaviour are progressed too quickly. It will likely take several months of regular face to face contact for Mr Narkle to feel comfortable enough to participate in counselling efforts designed to address his offending behaviour and, based on his history of continued denial of his offending, he may never reach a point where he feels comfortable enough to meaningfully discuss his offending. Although he may not be able to discuss his offending behaviour directly, psychological domains that are believed to support his sexual offending such as issues surrounding victim consent, his attitudes toward women, and his anger and hostility may represent treatment targets which, if met, could help manage his offending behaviour.
11 Despite his poor performance so far, a new DSO psychologist has been assigned and will continue sessions with the respondent whether or not he is placed in continuing detention or on a supervision order in the community.
12 Building a relationship will undoubtedly be a challenge. As Dr Hall puts it:
Put very simply, Mr Narkle has a somewhat paranoid world view in that he interprets the actions and intentions of others as being hostile or malevolent and as a sort of default position. That's not to say that he is delusional by any means. That's just the way he views things. People that - individuals that have that kind of outlook do tend to be somewhat more challenging with respect to developing a therapeutic relationship. That's not to say that it's impossible but it takes a lot more time (ts 283 - 284).
13 Mr Bell advised that one of the things learned from the failure of the counselling relationship is there are certain topics that the respondent
(Page 6)
- does not like to approach directly and they will be approached in a more indirect way in the future. It is now believed that things should be approached looking at the respondent's attitudes towards women, alcohol and substance abuse in other areas to address his treatment need targets in a more indirect way.
14 The need to develop a therapeutic relationship in order to address the respondent's treatment needs is very important. The applicant regards the absence of a relationship as critical to the decision I must make. Normally, this would be decisive. However, the respondent has formed other relationships, particularly with Outcare. While not therapeutic, they are important and give some indication that the respondent will be appropriately managed under supervision despite the lack of substantial progress in counselling.
Accommodation
15 A significant change since last year is that the respondent now has stable accommodation. The respondent will have accommodation provided through Outcare in a unit in Rivervale for approximately one year. The unit is on a ground floor of a three storey complex of approximately 70 units. The area is subject to numerous reports that indicate anti-social behaviour is occurring in that environment. There are a number of open spaces that the respondent may potentially attend with known associates in order to participate in alcohol consumption.
16 There is no evidence that the respondent is either aware of the people who drink in the park or indeed, unaware of them.
Alcohol
17 Alcohol consumption is a significant issue. It was the cause of previous offending. Dr Hall's opinion is relevant:
Mr Narkle's desire to abstain from alcohol is genuine. His strongly expressed motivation for abstaining from alcohol is that of preserving his physical health, specifically with respect to his diabetes. Although face-saving and indicative of poor self-awareness, such a position provides its own opportunity for intervention. Therefore, although Mr Narkle clearly requires further and ongoing counselling in relation to the prevention of relapse of alcohol abuse and dependence, such work may be best framed as an approach to taking good care of himself physically rather than with a strongly overt emphasis of alcohol-related negative behaviour. There is nonetheless currently a high likelihood in my opinion that Mr Narkle will resume drinking within weeks to months if released, and that reoffending in some form is likely to follow.
(Page 7)
18 In cross-examination Dr Hall amplified his report (ts 292). He noted that Mr Narkle is not blind the concerns about alcohol and that he should be tested regularly on a random basis. Dr Hall thought the Outcare plan in relation to the recovery programme was suitable. He noted that Mr Narkle was aware of the consequences of a breach of an alcohol ban as a dangerous sex offender and that his desire not to remain in prison bolstered his desires to abstain from alcohol (ts 295). It is a good thing that his sister, who is prepared to support him, is a non-drinker.
19 As to counselling, Dr Hall acknowledged that there were several aspects of counselling which would need to be focused on - anger, impulsivity, responses to stress, and his attitudes to women. Of those, emotional management, impulsivity and responses to stress are more important from a manageability perspective (ts 298). His impulsivity is decreasing with age and Dr Hall noted that there had been no unfavourable prison incidents in the past five years which also suggests that impulsivity is declining.
Community support
20 Ms Kirk has a wealth of relevant experience as a social worker and has been working with the respondent since February 2012. She has met him at least ten times for meetings of between 30 and 40 minutes:
[On his release] it is envisaged that Mr Narkle will need intensive support for the first two weeks. On that basis we would probably see Mr Narkle every day for the first week but that does not include weekends, every working day, and then perhaps two or three times the next week depending on how well he reintegrates (ts 334).
21 Ms Kirk explained the approach that would be taken to assisting him develop life skills and attend necessary appointments. Post-release support would be offered for 12 months, usually on a weekly basis.
22 Mr Narkle was referred to the Outcare Recovery Programme in August and has had five or six sessions. The Recovery Programme would continue in the community.
23 In Ms Kirk's opinion the relationship between she and the respondent is good. She thinks that they have reached a level of trust.
24 Community support for the respondent is reasonable. One of the respondent's siblings is a non-drinker and has indicated that she and the other sibling would be willing to support the respondent's reintegration in the community. She speaks for the family.
(Page 8)
25 Dr Hall gave evidence about the manageability of the respondent's level of risk of further serious sexual offending and conceded that he is in fact more manageable this year than he was last year (ts 290). He was of opinion that the Outcare plan would meet basic needs criteria.
Employment
26 The respondent has rarely sought or secured regular paid employment and he has indicated that he has no intention of obtaining employment or engaging in vocational activities on release.
27 The fact that the respondent is unlikely to get employment is troubling in that he will have very little to do and the temptation of both alcohol and sexual offending will be great.
Conclusion
28 The Dangerous Sexual Offenders Act does not require that the community is completely protected from the risk of a dangerous sexual offender. In balancing the continuing detention of a person solely for risk of offending, Parliament has required that protection has to be adequate in the circumstances, not absolute. Some things about the respondent have not changed since the last review. Other things have changed significantly.
29 The respondent still has treatment needs and progress in meeting them has been limited to such a degree where the applicant submits the risk is too great to allow release at this point until the result of further counselling is known.
30 This is an issue of substance.
31 The respondent is principally a violent offender who has sexually offended in the course of violence towards women. His past violent offending has been the result of alcohol and impulsivity. His impulsivity appears to be declining in Dr Hall's opinion. His desire to abstain from alcohol remains untested. However, it will always be untested until he is released. He has the prospect of continued detention if he fails to abstain.
32 Last year his accommodation proposal was unsatisfactory. It is now as satisfactory as it will ever be. At this review much has changed in this respect. He has stable accommodation in a single unit (which Dr Hall recommends) for a year. More importantly, he has the support of Outcare and has built up a relationship of trust with Ms Kirk. He has commenced sessions in the Recovery Programme.
(Page 9)
33 I am satisfied that release on a supervision order with strict conditions would adequately protect the community. Those conditions will include a condition to abstain from alcohol and drugs and a requirement that his abstention be monitored; an initial curfew to be extended for a period of up to 12 months in discretion; regular reporting requirements and a requirement to continue counselling sessions as may be appropriate.
34 Dr Hall proposed that the supervision order should be for a period of 3 years, pointing out, I think correctly, that if the respondent is going to breach the order he is most likely to do it in the first 12 months. I have concluded that a somewhat longer supervision order is required for the adequate protection of the community. I will impose an order for a term of 4 years.
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