Director of Public Prosecutions for Western Australia v Narrier [No 3]
[2014] WASC 131
•11 APRIL 2014
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- NARRIER [No 3] [2014] WASC 131
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 131 | |
| Case No: | MCS:13/2008 | 21 MARCH 2014 | |
| Coram: | JENKINS J | 11/04/14 | |
| 40 | Judgment Part: | 1 of 1 | |
| Result: | Order that the respondent be detained for an indefinite period for control, care and treatment | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA PATRICK LENNARD NARRIER |
Catchwords: | Criminal law Dangerous sexual offender Contraventions of a supervision order Unacceptable risk that, if a continuing detention order is not made, respondent would commit a serious sexual offence Effect of sentence currently being served and concurrent sentencing proceedings for breach offences |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 23, s 29, s 40 Sentence Administration Act 2003 (WA), s 20 |
Case References: | Director of Public Prosecutions (WA) v Narrier [No 2] [2014] WASC 20 The State of Western Australia v PLN [No 2] [2009] WASC 21 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
PATRICK LENNARD NARRIER
Respondent
Catchwords:
Criminal law - Dangerous sexual offender - Contraventions of a supervision order - Unacceptable risk that, if a continuing detention order is not made, respondent would commit a serious sexual offence - Effect of sentence currently being served and concurrent sentencing proceedings for breach offences
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 23, s 29, s 40
Sentence Administration Act 2003 (WA), s 20
Result:
Order that the respondent be detained for an indefinite period for control, care and treatment
Category: B
Representation:
Counsel:
Applicant : Ms K Robinson
Respondent : Ms M R Barone
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Narrier [No 2] [2014] WASC 20
The State of Western Australia v PLN [No 2] [2009] WASC 21
- JENKINS J:
Introduction
1 By an application dated 18 March 2013, the Director of Public Prosecutions (the DPP), applied for an order under the Dangerous Sexual Offenders Act 2006 (WA) (the Act), s 23, that the respondent be made the subject of a continuing detention order (CDO) or an amended supervision order (the contravention proceedings). The DPP's final position is that a CDO ought to be made. The respondent submits that, even though he has contravened his existing supervision order, I should permit the supervision order to continue in an amended form.
2 These are my reasons for decision in respect of the contravention proceedings.
3 The respondent has also pleaded guilty to four charges against the Act, s 40A, which allege that at various times in 2011, he contravened his supervision order by failing to attend for supervision, urinalysis and counselling as directed, and by using prohibited drugs (the breach offences). My sentencing remarks should be read in conjunction with these reasons.
The Act, s 23
4 The Act s 23 states:
(1) If the court is satisfied, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order, the court may -
(a) make an order amending the conditions of the supervision order and, if the court considers it appropriate in order to achieve compliance with the supervision order or necessary in order to ensure adequate protection of the community, make any other order; or
(b) if the court is also satisfied that there is an unacceptable risk that, if an order under this paragraph were not made, the person would commit a serious sexual offence, order that the person be detained in custody for an indefinite term for control, care, or treatment.
(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
5 The State alleges that the respondent contravened his supervision order by committing the breach offences. The respondent has admitted that he contravened his supervision order by committing the breach offences.
6 In Director of Public Prosecutions (WA) v Narrier [No 2] [2014] WASC 20 I said that before I could amend the supervision order or make any other order under s 23(1)(a), I have to consider whether, instead, a CDO should be made under s 23(1)(b). When making a decision under s 23(1)(b) as to whether the risk of the respondent committing a serious sexual offence is unacceptable, I must consider whether on the day of the hearing, the respondent is an unacceptable risk of committing a serious sexual offence within an undefined reasonable time from the making of the order.
7 In making this decision I will take into account that the respondent is currently in custody under sentence, but that he will become eligible for release on parole in May 2014 and that he must be released at the end of his sentence in early May 2016. Further, once the respondent is released from prison he will remain subject to the supervision order he was placed on in 2009 and it may be strengthened by the addition of further conditions.
Background
8 The respondent's background and history of offending is set out in Murray J's reasons for decision in The State of Western Australia v PLN[No 2] [2009] WASC 21. The following is an edited summary of Murray J's account of the respondent's background and history of offending:
A history of offending
An early period
The respondent was born on 9 November 1972. …
The respondent had appeared before the Children's Court here and he continued to offend and appeared regularly before the courts in SA from 1984 until 1989, at the end of which year it seems that, at the age of 17, he returned to Geraldton. … During this period, the respondent presented as a young person with no regard for the law or the rights of others. His schooling was disrupted and terminated early. He had perhaps one short period of employment and he was drinking alcohol and using cannabis.
Upon his return to WA there were a number of appearances in the Geraldton Children's Court, including for what appears to have been a quite serious assault, before the respondent was involved in his first serious sexual offending.
The 1990 offences
On 24 March 1990 the respondent, then aged 17, presented himself at the door of the complainant's house during the evening. He asked for a drink of water. She went and got the drink, but when she returned with it to the front door he was armed with what was described as a stick-like object. He grabbed her by the throat, forced her into a bedroom and stripped her of her clothing. He penetrated her vagina with his fingers, penetrated her anus with his fingers on two occasions, and then attempted to penetrate her anus with his penis.
He then demanded money and the complainant gave him $25, which she told him was all she had. He bound and gagged her and struck her … with the stick, demanding more money, but ultimately he left the house. He was interviewed by the police and admitted the offences.
He was dealt with by the President of the Children's Court on 1 May 1990 for three offences of aggravated sexual assault (being armed), an offence of attempted sexual assault, deprivation of liberty and armed robbery. He was sentenced to 4 years imprisonment for each of the sexual assaults and the attempted sexual assault, all of which were serious sexual offences within the meaning given to that term by the Dangerous Sexual Offenders Act 2006 (WA), s 3 and the Evidence Act 1906 (WA), s 106A. He was sentenced to 4 years imprisonment for the deprivation of liberty and 3 years imprisonment for the armed robbery.
All of those sentences were ordered to be served concurrently, but eligibility for parole was denied. There was some adjustment of the term to be served, caused by other matters, but ultimately the respondent served the aggregate term less remissions, and he was released on 21 January 1993. The offences had been committed, so I am told, on the day after the respondent's release from the Riverbank Detention Centre.
The 1993 offences
Having been discharged on 21 January 1993, a very short time afterwards, on 5 February 1993, the respondent offended again at Waggrakine, which is in the Geraldton region. No serious sexual offence within the meaning of the DSO Act was committed, but the offending undoubtedly had sexual overtones. There were two offences of burglary, one of child stealing and one of assault occasioning bodily harm. They were related offences. When arraigned in the District Court the respondent pleaded guilty to the burglaries, but not guilty of the child stealing and assault occasioning bodily harm. He was convicted after trial.
It appears that at about 11.30 pm on the night of 5 February 1993 the respondent drove to a house which he entered through a rear door, which was closed but unlocked. He was found inside by the male occupant of the house. He said he was looking for someone. The householder ejected him and watched him return to his car and drive away. A short distance down the road he parked, waited a while, and then returned to the house, entering by the same rear door which remained unlocked; hence the two burglary offences.
Again, he was confronted by the householder in a hallway, and again the householder demanded that he leave. The respondent produced a knife with which he threatened the householder and demanded that he produce his daughter. The respondent forced the man into a bedroom where a 12-year-old daughter of the house was awakened. Holding the child by the arm, the respondent left and forced her across the road to a house opposite where, in the front garden, he forced her onto her back on the ground and removed her nightgown.
The respondent punched the girl three times to the face, causing the injuries which constituted the bodily harm. The respondent lay on top of the child after attempting to undo his trousers. The girl was screaming. The neighbour into whose garden they had come, came out of his house and pulled the respondent off the child. The respondent ran to the car and drove off. He was apprehended by the police shortly afterwards. He was noticeably affected by alcohol.
He was sentenced in the District Court by Whelan DCJ on 17 June 1993 to an aggregate term of 5 years imprisonment - 1 year for the first burglary, 2 years cumulative for the second burglary, 2 years cumulative for the child stealing and 2 years concurrent for the assault occasioning bodily harm. No order of eligibility for parole was made and his Honour recommended that the respondent receive counselling for alcohol abuse while serving his sentence.
Again there was some adjustment to the term to be served, caused by a sentence for an aggravated prison offence (attempting to escape) and minor loss of remissions. The respondent was ultimately discharged from the sentences and released on 3 February 1997.
It should be said that to this point a previous psychiatric assessment and psychological assessments supported the conclusion that the respondent suffered from an antisocial personality disorder, the result of his dysfunctional childhood, limited education and chronic alcohol and substance abuse. Little hope was held that he would not continue to offend in future.
The 1998 offences
Having been released in February 1997, little more was heard of the respondent during that year. There were some traffic offences for which he appeared in the Midland Court of Petty Sessions. But a further serious sexual offence was committed on the night of 16 and 17 January 1998. …
There were four offences committed at Bassendean on this night, for which the respondent was indicted in the District Court. There were two groups of offences; an aggravated burglary and related aggravated sexual assault of the female occupant of the house, committed before midnight on 16 January 1998 and, in the early hours of the morning of 17 January 1998, an offence of aggravated burglary on another dwelling house, together with an assault occasioning bodily harm committed upon the female occupant of that house.
The facts of these offences are conveniently taken from the remarks made by Blaxell DCJ in passing sentence (exhibit A32):
'These offences all occurred on the one night and the relevant facts are as follows: at about 11 pm on 16 January 1998 you went to the complainant's home in Bassendean and I accept, as stated in your video record of interview, that your initial intention was to steal money. However, when you walked beside the house and looked inside a window, you saw the complainant, who was a 30-year-old woman, sitting alone in her lounge room.
I infer from the facts that you then formed an intention to sexually assault the complainant. You remained outside the back door until the complainant went to open the rear door to let her dog out and when she did this she found you standing there with the flyscreen door open. You then grabbed the complainant by the throat with your left hand. You pushed her back into the house holding her mouth closed with your other hand.
You pushed her into the lounge room and while doing that you threatened to kill the complainant if she did not keep quiet. You then pushed her onto a sofa where you pulled her pants down to her ankles. You then lowered your own shorts and you penetrated her vagina with your penis without her consent. After withdrawing from the complainant you went into the kitchen and waited for the complainant to come into the kitchen.
You then had a conversation with her when you apologised for what you had done and you then left. …
Having left that house in Bassendean you then went to another house in Bassendean and at 1.15 am on the following morning you went into the second complainant's house and again your intention was to break in and steal money. You entered through an unlocked rear door, went to the lounge room where you found the complainant asleep on the lounge. She woke up and she attempted to run past you but you took hold of her by the head and neck and you restrained her.
She then struggled free and kept running outside towards the rear door and out through the rear door. During the struggle you held onto her arm and told her not to scream. You again took her by the head and neck but she again struggled free. It was at this stage that for some reason she recognised you, not as an acquaintance but as a person she had seen around the area, and after telling you that you then fled.
…'
On 16 June 1998, Blaxell DCJ sentenced the respondent to four terms of imprisonment backdated to 19 January 1998. These sentences were structured so as to arrive at an aggregate term of 12 years imprisonment without eligibility for parole. In addition, his Honour ordered that at the expiration of those terms, the respondent should be detained indefinitely. …
On 6 April 2000, the sentence of indefinite detention was quashed by the Court of Criminal Appeal (Pidgeon, Wallwork and Murray JJ): Narrier v The Queen[2000] WASCA 86.
On Christmas Day 1998 the respondent became involved in a riot which occurred in Casuarina Prison. The circumstances of his involvement and the part he played in the events of that day are not presently material. It is sufficient to note that he was indicted and convicted of nine offences of assaulting a public officer, three offences of wilful damage and four offences of uttering threats to kill, to injure and to harm. On 28 April 2000, the respondent was sentenced by Hammond CJDC to a cumulative aggregate term of 3 years imprisonment without parole eligibility.
In the result therefore, the respondent was required to serve a 15 year term of imprisonment dating from 19 January 1998 without parole eligibility. … The respondent was discharged from the service of those sentences on 12 July 2008. I will return shortly to the circumstances in which the respondent was then released from custody.
Treatment while in prison
When, in prison, an assessment was made of his treatment needs, it was noted that the respondent was a chronic abuser of alcohol and cannabis and that he attributed the commission of the offences against the two women in 1998 to his high level of alcohol intoxication at the time. It was recommended that he participate in an intensive sex offender treatment program. Before doing so, he voluntarily entered into what is described as a reasoning and rehabilitation program, a cognitive skills course. He completed that successfully.
The respondent then undertook the Sex Offender Treatment Program over the period from 29 September 2005 to 28 April 2006. There is a report in evidence dated 29 May 2006 (exhibit A40) which reports on the outcome. It is said that he was highly motivated to address his offending behaviour and reduce the likelihood of the commission of further sexual offences. He was very open about his sexual interests and he participated fully in the program. In my view, it is clear that he completed it successfully, remembering that this is a report made over a year prior to the end of his term of imprisonment.
It was recommended that, although the respondent had made 'significant gains', he would benefit from participation in further treatment programs while in prison. Specific reference was made to a program to help him manage anger and to control substance use, and, during the final months of his sentence, it was recommended that he do a medium intensity sexual offenders treatment program 'to consolidate the information and tools he has gained from his participation in the intensive program'. Further, it was suggested that he would benefit from a vocational assessment to identify the opportunities which may exist to help him gain employment upon his release.
These recommendations were not in fact implemented. There is in evidence a report dated 22 November 2007 (exhibit A42) jointly made by a Ms Caple, a forensic psychologist (registrar) and a Ms Martin, a senior forensic consultant. It is described as a 'sex offender risk update report'. The document makes it clear that the respondent had not undertaken any of the further treatment programs which had been recommended. The program entitled, 'Managing Anger and Substance Use' was said to have been 'removed from the program schedule' and had not been replaced. The respondent had not been able to undertake the further sex offender treatment program, 'due to the lack of an available program currently'. It seems that neither of these programs or their equivalent became available to the respondent prior to the end of his term of imprisonment.
An unfortunate incident
In September 2006 the respondent was convicted of a minor prison offence, dealt with by the superintendent of the Albany Regional Prison where the respondent was serving his sentence. He was charged with an act of misconduct by exposing his penis to a clinical nurse. Apparently the respondent called out to the nurse as she made her rounds, and when she looked at him he had his penis exposed. He did this twice within a short space of time. He pleaded guilty and was sentenced to 7 days loss of gratuities suspended for 2 months, dependent on good behaviour [1] - [26].
9 Murray J was critical of the conclusion reached by an employee of the Department of Corrective Services that as a result of what his Honour called 'an unfortunate incident' the respondent's 'sexually inappropriate behaviour has continued in a custodial environment'. His Honour said 'one would need more than the isolated incident in September 2006, in the context of a long term of imprisonment during which the respondent did everything appropriate which was asked of him, to support a conclusion expressed in those terms'. I disagree with Murray J. The respondent's behaviour in front of the nurse was indecent and criminal. It was committed by a sex offender in a custodial environment. It was evidence that the respondent was not rehabilitated and remained at risk of committing sexual offences if released into the community.
Events since 2008
10 A detailed history of events since 2008 is set out in the DPP's document entitled 'Particulars of Alleged Contraventions - Statement of Material Facts', dated 2 December 2013 (attached). These facts are agreed to by both parties.
11 There is additional relevant material in the Director of Public Prosecutions (WA) v Narrier [No 2], which is my decision in respect of preliminary issues relating to the contravention proceedings. I do not resile from anything I said in that decision.
12 In summary, on 11 February 2009, Murray J declared the respondent to be a serious danger to the community and he was made the subject of a 5-year supervision order under the Act. At the time the order was made, the respondent was living in Albany, he was in a relationship and he was employed at the local abattoir.
13 On 7 December 2009 the respondent appeared in this court pursuant to a summons issued for contravening the supervision order by breaching its residential and no use of alcohol or substances conditions. Murray J extended the no alcohol condition for 6 months, on the understanding that moderate use of alcohol would be permitted under the supervision order. Otherwise the supervision order remained in force.
14 In February 2010 it was alleged again that the respondent breached his supervision order. In breach of the order he was homeless because he had defaulted on payment of his rent, he had missed appointments with his community corrections officer (CCO) and psychologist, and he had lost his employment. It is now clear that these breaches were the result of the respondent's use of alcohol and substances, the breakdown of his domestic relationship and the deterioration of his previously stable lifestyle.
15 Those contraventions were not formally dealt with as on 13 February 2010 the respondent was arrested for alleged domestic violence offences against his partner. The contravention proceedings were adjourned so that the more serious allegations of domestic violence could be prosecuted.
16 This never occurred because on 20 April 2010 the DPP discontinued the domestic violence charges. The respondent's former partner and other eyewitnesses to the alleged assaults would not give evidence against the respondent. Following that decision, the DPP decided not to proceed with the contravention proceedings. The respondent's life appeared to have re-stabilised.
17 However, departmental staff formed the view that the respondent was using cannabis on a semi-regular basis and so he was made subject to ongoing urinalysis. On 20, 24, 26 and 28 May 2010 the respondent returned urinalysis positive to cannabis. He was convicted and fined for using a prohibited drug. The DPP decided not to pursue contravention proceedings.
18 On 30 September 2010 the respondent was in possession of 2 grams of cannabis. He was convicted and fined for this offence.
19 On 29 December 2010 the respondent failed to report to his CCO in Albany because he had not returned to Albany from an approved visit to Geraldton. His whereabouts were unknown until he was arrested on 4 January 2011 in the Perth metropolitan area. No contravention proceedings were initiated by the DPP in respect of this behaviour because, again, it was assessed that the respondent's lifestyle had re-stabilised. The respondent was by then living in Perth and he was in a relationship with a different woman. However, his stability was short-lived because a few months later he committed the breach offences.
20 The details of the breach offences, which also are the specific allegations of contravention of the supervision order, are as follows:
Prosecution Notice AR 4743/11
21 On six occasions between 3 March 2011 and 21 April 2011 the respondent breached condition 15 of his supervision order by using prohibited drugs, namely, cannabis and methamphetamine or methylamphetamine. These contraventions came to light because his urine tested positive for one or more of these drugs on 3 March, 10 March, 21 March, 31 March, 7 April and 21 April 2011.
22 These breaches occurred despite the respondent being issued a Written Lawful Instruction on 3 March 2011 to cease all use of illicit substances, to submit to twice weekly urinalysis until further order and to engage in substance abuse counselling as directed.
Prosecution Notice AR 4739/11
23 On 28 March 2011and 28 April 2011 the respondent failed to attend for urine testing as directed in contravention of condition 3 of his supervision order. He claimed to have either missed the bus or not to have money for a bus. Given the positive test results around this time, these were very convenient excuses.
Prosecution Notice AR 4741/11
24 On 13 April 2011 the respondent breached condition 2 of his supervision order by failing to attend for a supervision session with his CCO, as directed.
25 On 14 April 2011 the respondent was admitted to the Next Step detoxification programme but he left on the same evening after shouting and swearing at a staff member who had asked him to stop shouting and swearing at his then partner, during a telephone call.
Prosecution Notice AR 4742/11
26 On 21 April 2011 the respondent breached conditions 2 and/or 11 of his supervision order by failing to attend counselling with Drug Arm, as directed by his CCO on 18 April 2011.
27 On 25 April 2011 the respondent was stopped by the police and charged with driving without authority to drive. On 7 July 2011 he was fined for this offence.
28 More significantly, on the evening of 21 April 2011 the respondent committed offences of aggravated burglary and stealing a motor vehicle. He was not immediately identified as the offender.
29 On 4 May 2011 the respondent was charged by the police with the above breach offences. On 6 May 2011 he was charged and remanded in custody for the aggravated burglary and steal motor vehicle charges. He has been in custody since that date.
30 On 24 May 2012 the respondent was sentenced in the District Court on his plea of guilty to one count of aggravated burglary and one count of stealing a motor vehicle, both offences having been committed on 21 April 2011, during the supervision order. He was sentenced to a total of 5 years' imprisonment. That term was backdated to commence on 6 May 2011. He will become eligible for parole in respect of the District Court sentence on 5 May 2014, and that sentence will conclude on 5 May 2016.
31 A trial of the issues was held by the District Court sentencing judge, Scott DCJ, to determine the facts relevant to sentence. Following the trial of the issues, his Honour made findings of fact which are relevant to the contravention proceedings. However, another finding of fact which the DPP asks me to make for the purpose of the contravention proceedings was not made by the sentencing judge.
32 The facts of the offences for which the respondent was sentenced in the District Court were summarised by Scott DCJ in the following terms:
In this case, you were in company with a juvenile co-offender and you both jumped over the front fence at the property. The flyscreen was kicked open. You both entered the living room, at which time [the male complainant], was pushed out of the house and punched by the co-offender, before running to a neighbour's house. He alerted the neighbour as to what was going on and then he returned to the property and he saw the co-offender in the carport … attempting to steal his vehicle. [The male complainant] confronted him and was again punched to the arms and head.
In the meantime, you confronted [the female complainant] and demanded money. When you were in the hallway, or marginally inside her bedroom, you grabbed her by the arm and said, 'If you don't give me money, I will make you suck my cock'. Then you followed her in the bedroom. She was in company with her two young children, who were crying, ... When you were near her, you told her that if she didn't give you money, you would take her to the bathroom, and you pushed the bathroom door. During this time, [the female complainant] and her young children were upset and the children were crying.
You and the co-offender then stole the Mitsubishi Lancer motor vehicle.
In your record of interview with police, you denied having ever been at the property and denied being involved in these two offences (book of materials, pages 279 - 280).
33 Additionally, the DPP asks me to find that when the respondent entered the house and encountered the female complainant he opportunistically formed an intention, albeit briefly, to sexually offend against her but that he abandoned that intention shortly thereafter, and that the abandonment of that intention was likely due to a realistic assessment of external circumstances rather than to his own internal controls.
34 It is the State case that the respondent had this intention when he grabbed the female complainant by the arm and said, 'If you don't give me money, I will make you suck my cock', and a short time later when he told her that if she did not give him money he would take her to the bathroom and then he pushed the bathroom door.
35 In 2014, the respondent told Dr Wojnarowska, a consultant psychiatrist, that when he committed the burglary on 21 April 2011 he had said to the female complainant 'I will let you suck me off'. He denied saying that he would make her do that. He told Dr Wojnarowska that he made the comment to scare the complainant.
36 This account contradicts the respondent's evidence that he gave at the trial of the issues in the District Court. At the trial of the issues he denied making any comment to the female complainant of this nature.
37 Dr Wojnarowska is of the view that it would be very difficult at this point in time to comment on whether there was a sexual threat in the respondent's words to the female complainant. She doubts that the respondent could honestly answer the question now. She said that it was possible that he momentarily formed the intent to sexually assault the victim and that this scenario is the most likely in her opinion. In Dr Wojnarowska's view this does not fit the respondent's previous modus operandi when he formed his intent to sexually assault victims prior to breaking into their houses. It may be true that on each occasion the respondent has committed serious sexual offences he has formed an intention to do so before he broke into the victims' houses. However, it is also true that in respect of a number of those offences his initial intention had simply been to steal money and it was only when he saw a female victim as he cased a home for an intended burglary that he formed the intention to commit a serious sexual offence. Thus, I think there is some similarity between the respondent's sexual offences and the 2011 offences.
38 Dr Tanney, also a consultant psychiatrist, thinks that it is more likely than not that the respondent formed a fleeting intention to sexually assault the female complainant. He notes the similarity between some of the respondent's previous incidents of sexual offending and the circumstances of the offence of 21 April 2011.
39 I am satisfied beyond reasonable doubt that when the respondent said the words and took those actions as found by Scott DCJ, the respondent was thinking about sexually assaulting the female complainant and he intended to do so. I make that finding on the basis of the female complainant's credible and consistent account. The respondent's denials, on the other hand, were not believed by the sentencing judge (book of materials, page 242). I do not accept the respondent's denials either as he has given inconsistent accounts of what he said to the female complainant and I am not satisfied that he has a reliable memory of the events. This is because of his admissions that he was under the influence of alcohol and drugs and had not slept the previous evening.
40 I also accept the reasoning of the sentencing judge that the respondent has a propensity to commit offences of a sexual nature in the course of home invasions by reason of the commission of the 1990 and 1998 offences (book of materials, page 243). That propensity increases not only the likelihood that he would say those things but also that he would mean to carry out his threats. On the other hand I accept that unlike those prior occasions, the respondent did not commit a sexual offence and he quickly abandoned his intention to do so. It is likely that was because he was not alone with the complainant and therefore unable to put his intention into effect.
Reports received for contravention proceedings
Performance report dated 7 March 2013
41 The performance report prepared by Sindy Clarke, Acting Manager South East Metro Community Corrections Centre, summarises the respondent's history. In conclusion it states that:
Mr Narrier's ongoing use of illicit substances, lack of motivation to address his drug use issues, rejection of the supervision process in place to address his risk to the community and at times aggressive presentation during supervision and recorded re-offending all give rise to concerns regarding his capacity to comply with a community supervision plan.
Psychiatric report - Dr Gosia Wojnarowska
42 Dr Wojnarowska assessed the respondent for the original dangerous sexual offender application determined by Murray J in 2009. For the purpose of these contravention proceedings Dr Wojnarowska saw the respondent on 3 March 2014 and prepared a report dated 9 March 2014. She also gave oral evidence.
43 Dr Wojnarowska said that previously she had found the respondent to be at high risk of sexual reoffending on the basis of the following factors:
(1) he had a long history of a criminal lifestyle;
(2) he had unresolved issues from his childhood that have become a driving force in his aggression;
(3) he has been assessed as having a very high sexual drive with possible high levels of sexual preoccupation with violence;
(4) his coping skills with everyday life events have not been tested within his life context; and
(5) the likelihood of him resorting to alcohol to alleviate his problems was assessed as high.
44 Dr Wojnarowska reported that in 2008 the respondent had identified to her a number of risk factors. Below I have identified each risk factor and the respondent's response whilst on his current supervision order.
(1) Abstaining from alcohol and illicit drug use
The respondent admitted that whilst on his supervision order, he drank alcohol when it was available and that his use escalated over the course of his supervision order. He admitted that it even escalated when he was receiving drug and alcohol counselling. The respondent also admitted to using cannabis on a daily basis. When he moved from Albany to Perth, he started to use amphetamines on a regular basis and became dependent on that drug.
The respondent 'repeated his previous assertions that on this occasion he would abstain from illicit substances and alcohol once released to the community'.
(2) Relationships with women who also abuse alcohol and illicit drugs
The respondent acknowledged that his first relationship after his release on the supervision order was with a woman who also drank too much. He admitted that they also used cannabis together and there was a 'lot of violence' in the relationship. He ended the relationship in April 2011 and admitted that ending the relationship helped him.
I note that on this account the relationship only ended at about the same time as the respondent was arrested and remanded in custody.
(3) Attending nightclubs and having 'one night stands'
The respondent admitted that he had used prostitutes regularly, as in weekly, whilst on the supervision order. He said that it was his way of dealing with stress.
Dr Wojnarowska talked to the respondent about his current sexual functioning. She concluded that he has a high libido and that he failed to appreciate this risk factor whilst he was living in the community on his supervision order despite his assurances that he would take it into consideration and would not expose himself to prostitutes. The respondent told Dr Wojnarowska that despite what he had said in 2008, he thought that frequenting prostitutes was a safe practice for him as there were 'no strings attached'.
(4) Association with family members who drink alcohol
The respondent admitted to drinking alcohol with family members in Albany but says that he was later rejected by them as a result of a false allegation. When this occurred, his alcohol and cannabis use increased.
(5) Lack of employment
The respondent acknowledged that he 'quickly abandoned' his full-time employment which he had after his release from custody. Despite his actions, the respondent reiterated to Dr Wojnarowska his need for employment in order to achieve stability in his life.
45 Dr Wojnarowska said that when she saw the respondent in 2014 he was pleasant and cooperative and answered most questions to the best of his ability. He blamed his contraventions on his reliance on alcohol and illicit substances. He spoke confidently, fluently and steadily when discussing how in the future he would avoid such substances in the community. Although, Dr Wojnarowska noted that since the respondent has been in custody, he has been charged with various misconduct offences including use of a drug not lawfully issued to him and use of cannabis.
46 In September 2013 the respondent completed the Pathways Substance Use Programme (the Pathways programme). The completion report of the supervisors was that the respondent's remaining treatment needs appeared to be 'centred in gaining the ability to remain emotionally stable while facing adverse situations'. They recommended that individual personal counselling and formal support is required to help prevent the respondent's 'reliance on maladaptive coping strategies'.
47 Dr Wojnarowska completed a risk assessment based on two scenarios. Scenario 1 assumed that the threatening words and actions directed to the female complainant of the burglary offence committed on 21 April 2011 were intended by the respondent only to frighten her. Scenario 2 assumed that the respondent had opportunistically formed an intention, albeit briefly, to commit a serious sexual offence against the female complainant, but abandoned that intention shortly thereafter, and that the abandonment of that intention was likely due to realistic assessment of the external circumstances.
48 As I have found the facts to be as assumed in scenario 2, I will concentrate on Dr Wojnarowska's risk assessment based on that scenario. Dr Wojnarowska used four tools to assist her in assessing the respondent's risk of reoffending. Dr Wojnarowska found that her assessment using the Static-99, PCL-R and HCR-20 had not changed over either time or in respect of either scenario 1 or scenario 2. In respect of the RSVP, Dr Wojnarowska considered that in the third domain (mental disorder category), scenario 2 could sway her opinion towards the likely presence of a deviant sexual interest in violence. Dr Wojnarowska said that if this suggestion was accepted, then that would suggest that the respondent's risk of sexual reoffending was higher. However, Dr Wojnarowska did not come to any firm view about this factor.
49 The main RSVP domain where Dr Wojnarowska thought that scenario 2 affected her assessment was manageability (fifth domain). If scenario 2 was accepted, she concluded that in addition to individual and group psychological counselling, pharmacological treatment with an anti-libidinal medication should be considered. In her opinion, if the respondent was suitable for such treatment, it should be commenced whilst he was still in prison, ideally in a low security facility, such as a prison farm. Dr Wojnarowska said that this would not only allow for the gradual reintegration of the respondent into the community, but it also would be an opportunity to monitor the respondent's response to the medication and the potential side effects.
50 In terms of risk scenarios, Dr Wojnarowska said that if scenario 2 is accepted by the court, then the respondent's sexual offending is even more unpredictable as he demonstrated that his internal controls/inhibitions are not adequate and he could impulsively commit sexual offences without any planning when the opportunity arises. In my view, this could have equally been said given the respondent's history of offending prior to his release in 2009.
51 Dr Wojnarowska concluded that the respondent's 2008 pre-release goals had not translated into changed behaviour. She said that the respondent had commenced a volatile relationship, experienced interpersonal and communication difficulties, attempted to manage his stress/distress with alcohol and had sought comfort in sex workers. He had stopped working and started spending his time with the family members whom he had previously identified as people who would encourage him to drink alcohol and smoke cannabis. He had reoffended in a generalist manner and during the offences of 21 April 2011 he had made sexual threats to the victim. This was irrespective of whether the threat was made with intent to carry it out. She said that simply making the threat indicated that sexual themes still occupy the respondent's thoughts to the point that when he is disinhibited, threats containing sexual themes are the first to come to his mind.
52 Dr Wojnarowska said that the respondent's Pathways programme completion report from 2013 echoed his treatment needs as identified in his ISOTP completion report from 2006. Both reports highlighted the presence of risk factors which have not been addressed, or if they have been addressed adequately, the respondent's response to treatment has been poor and as such he may be perceived as treatment-resistant.
53 In evidence Dr Wojnarowska said that if I accepted scenario 2, then there is a higher likelihood that the respondent has a specific sexual interest in sexual violence but she could still not state that with 'any certainty'. She was certain that if I accepted scenario 2, there were implications for the respondent's management in the community. That is, she would strongly recommend that the respondent be offered treatment with anti-libidinal medications, although the respondent would have to receive medical advice about the significant side effects of such medication. This is particularly because the respondent has other medical conditions such as diabetes and high blood pressure.
54 Dr Wojnarowska said that her view is that the respondent's high risk of reoffending in a sexual manner has not altered from 2009. This is because the respondent's behaviour whilst on the supervision order was impulsive and he continued to engage in high-risk situations such as illicit substance abuse and alcohol consumption, which were the primary triggers of his offending. Dr Wojnarowska said that the respondent was very much aware of his failure to address those issues and he admitted whilst in custody that he still experienced cravings for alcohol and had been charged with cannabis offences. She still believes that the respondent has very poor life-coping skills, that he continues to demonstrate that he has difficulty coping with stress and he has a propensity to engage in volatile relationships. Further, it does not appear to her that the respondent has resolved all his psychological issues relating to his childhood traumas. Dr Wojnarowska said this was evidenced by his propensity to use alcohol and aggression when under stress.
55 As to whether the respondent's risk can be adequately managed in the community, Dr Wojnarowska said that it was difficult for her not to be influenced by the fact that there was a high probability of the respondent remaining in prison until the completion of his sentence because he will not be granted parole. In Dr Wojnarowska's opinion, that period of time (between his earliest release date on parole and the end of his sentence) should be spent in a medium or low security prison and the respondent should be given specific treatment to assist in his reintegration into the community. Dr Wojnarowska is of the view that if the respondent stays in a high security prison, then his risk of reoffending may increase to a very high risk. She believes he should undertake the medium intensity SOTP and he should have continuous, intensive drug and alcohol counselling. She is of the opinion that a lower security prison would give the respondent more responsibility for his day-to-day functioning which would ultimately assist in his reintegration into the community.
56 Dr Wojnarowska is of the view that the respondent genuinely wants to change his lifestyle and to someday live a normal life in the community. She acknowledged that he probably expressed the same genuine wishes during the original application.
57 Dr Wojnarowska's final view is that, as her assessment in 2008 had been that the respondent's risk of reoffending could be adequately managed in the community and as his risk of reoffending had not changed, she remains of the view that his risk of reoffending can be adequately managed in the community on a supervision order. However, she thinks that the respondent's supervision should be stricter, that if he breaches the conditions of the order there should be immediate consequences, that urinalysis should be performed more frequently and that more intense psychological counselling should be provided. With these changes to his supervision regime, Dr Wojnarowska would support the respondent's release on a supervision order, immediately.
58 Dr Wojnarowska gained the impression during her interview with the respondent that at the time he contravened the supervision order, he was unaware of the possible consequences of doing so, that is, indefinite detention. She believes that he thought that as he had in effect gotten away with numerous breaches of the order that he could continue to do so.
Psychiatric report - Dr Bryan Tanney
59 For the purpose of the contravention proceedings, Dr Bryan Tanney, consultant forensic psychiatrist, assessed the respondent. Dr Tanney had also assessed the respondent for the purpose of the original application. Dr Tanney interviewed the respondent on 2 March 2014 and also had regard to all relevant information. Dr Tanney prepared a report dated 6 March 2014 and gave oral evidence. The history which the respondent gave to Dr Tanney was not relevantly different from that which he gave to Dr Wojnarowska.
60 Dr Tanney used the Static-99R, RSVP and 3-Predictor Model as risk assessment tools. Apart from a slight decrease in the respondent's score due to his increasing age, the respondent's score on the Static-99R assessment had not changed. Under the RSVP, Dr Tanney noted that a number of risk management issues had confirmed from possible to present. Dr Tanney concluded that the respondent's risk of reoffending and the need for more risk management had increased since his RSVP assessment in 2008. On the other hand, Dr Tanney noted that the respondent had had some success in extending the length of time in the open community before he reoffended. That is, he had not committed a serious offence for almost three years post-release when previous offences occurred after a very short time after release from custody.
61 In respect of the 3-Predictor Model, Dr Tanney does not believe that the respondent has realistically addressed long-term goals although he has tried to do so within his limited capacity. Dr Tanney said that the respondent's release plans are tenuous and have little substance, at the present time. Dr Tanney noted that the respondent has no strategies for avoiding alcohol abuse whilst in the community. He also refused the possible use of anti-libidinal medication to address his sexual behaviour. In respect of coping skills, Dr Tanney said that the respondent has lifelong difficulties in coping in an appropriate way with emotional situations involving important women in his life. In conclusion, Dr Tanney said that the 3-Predictor Model provided little support for a reduced likelihood of reoffending violently and sexually.
62 Finally, Dr Tanney considered a risk assessment based on 'an idiosyncratic consideration of [the respondent's] life as a unique entity'. After doing so, Dr Tanney concluded that:
As with the other measures of reoffending likelihood, his internal capabilities and the lack of affective or sustained external supports indicate an increased likelihood of reoffending. The response to treatment and supervision over his almost three years in the open community suggest minimal gains and some loss of external supports (addendum book of materials, page 18).
63 Dr Tanney concluded that the respondent's risk of reoffending had not mediated from the high likelihood of reoffending established at the 2008 psychiatric assessment. Further, there were indications of some increased risk.
64 Using the same identifiers as Dr Wojnarowska used for the two alternative scenarios, Dr Tanney said that it was apparent that the risk of future reoffending would be increased in scenario 2. Importantly, Dr Tanney said that scenario 2:
[S]uggests that the core psychodynamic/psychological issue of unresolved needs for sex as an outlet for or expression of inadequacy, anger and power issues interpersonally remains actively in the forefront of understanding and assessing risk of sexual reoffending. It suggests that the ISOTP efforts in modifying attitudes towards women and addressing more adaptive emotional coping/problem-solving have not been incorporated into his action patterns. … This does not suggest that this approach be abandoned but simply that it has not yet been sufficiently reinforced (addendum book of materials, page 19).
65 Dr Tanney said that if the respondent returned to the community, external monitoring, numerous supports and consistent and timely consequencing of breaches must continue as the mainstay of risk management for one to two years. Dr Tanney acknowledged that this was problematic as a solution due to the likely increased rate of breaches of the supervision order if the number and nature of onerous conditions in the supervision order increased.
66 Dr Tanney also noted that in scenario 2, the respondent's sexual needs had raised themselves opportunistically, even where there were children present. He said that the respondent's risk management had to aim to reduce the respondent's sexualised response towards resolving stressful interactions with women. However, Dr Tanney found that the increased risk of reoffending in scenario 2 is not sufficient enough to increase the respondent's already high risk of reoffending.
67 Dr Tanney noted the lost opportunity for further treatment during the period that the respondent has been in custody since May 2011. Dr Tanney said that if parole was denied, there would now be a further opportunity for the respondent to develop and practice new strategies to avoid further sexual reoffending. Like Dr Wojnarowska, Dr Tanney is of the view that this would be most likely to happen in a minimum security environment. Should the minimum security setting not be permitted by the Department of Corrective Services, Dr Tanney says that the respondent could still benefit from completing a further SOTP and from further work on substance abuse relapse prevention. Dr Tanney is also of the view that the use of anti-libidinal medications should be explored as a means of damping down the respondent's sexual interest and activity. Although the respondent does not favour this, Dr Tanney is of the view that the respondent could receive medical advice, some preliminary medical investigations and a possible trial of anti-libidinal medication whilst he is in custody.
68 Dr Tanney said that substance abuse remains a critical step in the respondent's offending. He said that the respondent could be discharged to a residential substance abuse treatment facility. He may also benefit from involvement with Alcoholics Anonymous. A pharmacological approach could be taken, for example, through the prescription of Naltrexone or Topiramate. These medications have some success in moderating alcohol intake. Most importantly, the respondent needs to engage and remain engaged with a substance abuse rehabilitation programme.
69 Dr Tanney concluded that a further period of custody in a minimum security setting with assured access to an ongoing substance abuse programme and a SOTP is a strong option. This would also allow consideration of treatment with anti-libidinal medication. If this treatment whilst in custody was not available, Dr Tanney's opinion is that there is no value in further incarceration in managing risk, save for the respondent's lack of access to the community.
70 In his oral evidence, Dr Tanney confirmed that he thought that the respondent's risk of reoffending in a sexual manner had increased subtly since 2009. This was not because of a change in the respondent's personal risk but because of the lack of external, as in family and occupational, support, in the community. In effect, the respondent has no realistic release plan.
71 Dr Tanney said that his preference is for the respondent to remain in prison, in a minimum security rated prison, for a sufficient time for him to repeat the Pathways programme and a medium level SOTP. Dr Tanney says that once the respondent has finished the programmes and there is a structured place for him to move into in the community, he should leave prison as quickly as possible.
72 In cross-examination, Dr Tanney said that the respondent would not be ready for release into the community in May 2014 unless there was adequate community support for him. That support included programmes such as the medium SOTP and substance abuse counselling, a social role and employment. If the programmes were available in custody, Dr Tanney is of the view that the respondent would be ready for release once he had completed those programmes which could be before May 2016, the end of his sentence. Dr Tanney does not support the respondent being in custody for a further three years, which may be the result if I make a CDO.
73 Dr Tanney acknowledged that even after the respondent had completed a further SOTP and received substance abuse counselling whilst in custody, he would need to have a realistic release plan. This would probably be created by others, rather than the respondent. Dr Tanney further acknowledged that one of the problems with the respondent's level of compliance with the supervision order in the past was that the respondent was not fully committed to complying with the strictures of the order. He said that there were signs back in 2009 that the respondent was finding it difficult to comply with the provisions of the order. He said that this indicated that the respondent still had an internal issue in committing to a lifestyle that could reduce his risk of sexual reoffending. Dr Tanney agreed that if the respondent did not get parole or his parole was delayed, there would be time for the respondent to work on the internal barriers that were preventing him from being committed to complying with his supervision order.
Discussion and findings
74 It is not in dispute that the respondent has contravened his supervision order.
75 The evidence is overwhelmingly to the effect that if the respondent was in the community and not on a supervision order he would be at a high risk of committing a serious sexual offence. The issue for me is whether that risk is unacceptable if the respondent remained subject to his supervision order.
76 There are two factors in particular which may affect my assessment of whether that risk is unacceptable. The first is that his risk may not be realised in the next two to three years because if the respondent is not granted parole, his current sentence will not expire until May 2016. If I imposed a cumulative sentence for the breach offences his release date could be even more distant. During the period he remained in custody his risk of reoffending may decrease.
77 On the other hand, I must also take into account that without a cumulative sentence for the breach offences, he is eligible for release from custody in May 2014. Thus, there must be a significant chance, albeit by no means a certainty, that if I do not make a CDO he would be released in May 2014 or at some other date between then and May 2016. There is also the significant chance that even if he remains in custody his risk of reoffending will not decrease.
78 As I said in my earlier reasons, I am not just required to consider what the respondent's risk of serious sexual offending is today, taking into account the respondent's current circumstances. I must take into account the risk over a reasonable length of time having regard to his current circumstances and what his circumstances are likely to be in the future. I consider a reasonable length of time extends beyond a two to three year period, especially having regard to the respondent's long history of serious sexual offending. His first serious sexual offence was committed in 1990 and his last in 1998. Since then he has been convicted of other serious offences including the burglary offence in 2011, which I have found contained a threat of sexual violence, which for a short period of time the respondent intended to carry out.
79 Given the seriousness of the respondent's serious sexual offending, the number of times he has committed serious sexual offences, the length of time between his first and last serious sexual offences, the contraventions of his supervision order and his lack of rehabilitation I consider it is appropriate for me to assess the acceptability of his risk of committing a serious sexual offence over a period of five years from today.
80 The second factor is that if the respondent is not in custody he will be subject to a stringent supervision order for approximately 2 years and 9 months, which is the balance of the 5-year supervision order, and I may amend that order to increase its efficacy.
81 Dr Wojnarowska is of the view that the respondent's risk of reoffending can be adequately managed in the community given the terms of the supervision order, amendments which could be made to strengthen it and the imposition of immediate consequences for breaches of the order. Her opinion appears to be influenced by the fact that in 2008 she thought that the respondent's risk could be adequately managed in the community. As she does not think that his risk of reoffending has changed, she says that she is of the same view that she had in 2008.
82 I have decided not to give this opinion weight as I disagree with the bases for it. First, I have considerable doubt whether in 2008 or 2009 the respondent's risk of sexual reoffending could be adequately managed in the community on a supervision order. I know that he did not commit a serious sexual offence whilst he was on the supervision order but he breached his supervision order in many ways by doing things which made it more likely that he would commit such an offence. Further, in April 2011 he committed a serious offence during which he formed an intention, albeit briefly, to sexually assault the female complainant.
83 The second basis for her opinion is that the respondent's risk of reoffending has not increased since 2008. I agree that the respondent has not changed but I am of the opinion that if he was now released into the community he would have fewer stabilising factors in his life and that this would increase his risk of serious sexual offending, especially as he has not recently done any SOTP or had substance abuse counselling.
84 Thirdly, I do not accept that the respondent now has a much better awareness of the consequences of breaching his supervision order, so that he will be personally deterred from breaching it in the future.
85 Given the respondent's lengthy criminal history, I believe that the legal system has for decades attempted to impress on the respondent the consequences of failing to comply with the law. I do not accept that his history, and the various proceedings under the Act, were inadequate to forewarn the respondent about the consequences of failing to comply with the supervision order and otherwise breaching the law whilst he was previously in the community and subject to the supervision order. I think it much more likely that the respondent was aware of the consequences but decided to take the risk of breaching the supervision order and the law in any event. Nothing has changed to make me think that he is currently able or willing to moderate his behaviour in the community so as to not breach the conditions of a supervision order over any reasonable length of time. The only purpose in having a stricter compliance regime is to attempt to ensure that breach proceedings are commenced before he commits any serious offence or a serious sexual offence.
86 Dr Tanney is less certain than Dr Wojnarowska that the respondent's risk of reoffending could immediately be adequately managed in the community. He is of the view that the respondent's risk could be acceptable on the supervision order after the respondent has received appropriate treatment in a lower security prison. However, he would not support continued detention in a high security prison for a further three years. In his view that would be counterproductive. He said the only thing which would be achieved by that would be that the community would be physically protected from the respondent. Under the Act, the need to ensure adequate protection of the community is my paramount consideration, so I cannot discount continued detention simply because it may setback the respondent's rehabilitation.
87 In fairness to the respondent, I will decide the application on the basis that he is likely to be in custody for some years before his release, even if a CDO is not made. I also acknowledge that when released he will be on a strict supervision order. I accept that the current policy of the Department of Corrective Services is to ensure that, as long as the respondent is able to be located, minor breaches of a supervision order are brought before the court in a timely manner. The hope is that, by this process, deterioration in the respondent's functioning will be evident to the court and the respondent will be remanded in custody before he can commit a serious sexual offence.
88 Even taking these matters into account, the respondent is a person who, without external controls, is at a high risk of committing a serious sexual offence. Despite that finding, in 2009 he was given the chance to live in the community on a supervision order. Despite the existence of the order and a great deal of community support, within 12 months the respondent had breached the order by consuming alcohol which is acknowledged to be a trigger to his sexual and generalised offending. Only a short time later his breaches became more serious and wider ranging. In April 2011 he committed the burglary offence during which he made a threat of sexual violence which he intended to carry out, albeit for a short period of time. Since then he has been in custody but he has not received any sex offender or substance abuse treatment other than the Pathways programme. He has not been rehabilitated. He has no realistic release plans.
89 Having regard to these matters I find that there is an unacceptable risk that, if an order that the respondent be detained in custody for an indefinite term for control, care, or treatment is not made, he would commit a serious sexual offence. Thus, pursuant to the Act, s 23 I am required to make a CDO.
Interaction between the CDO and parole
90 Not unnaturally, the respondent is concerned that because of his current sentence and the effect of any sentence I may impose for the breach offences, the first review of his CDO may not occur for about three years. This is because the Act s 29(2) says that the first review of a CDO cannot occur until 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. The effect of that provision is that if the respondent is not granted parole, his CDO can only be reviewed 12 months after the completion of any sentence he is serving or is yet to serve.
91 There are two ways in which I can seek to ameliorate the effect of that provision so that the respondent may be able to have his CDO reviewed after he has had an opportunity to do a further SOTP, to undergo further substance abuse treatment and to formulate realistic release plans. The first is by taking into account my decision to make a CDO when I impose sentences for the breach offences.
92 The second is by requesting that the Prisoner's Review Board (the Board) take into account the CDO when deciding whether or not to grant the respondent parole.
93 In deciding whether to grant parole the Board must take into account 'any other information about the prisoner brought to its attention': Sentence Administration Act 2003 (WA) s 20(2). This would include these reasons and my sentencing remarks. I will direct that a copy of these reasons and my sentencing remarks be sent to the Board for its consideration.
94 The Sentence Administration Act, s 20(2) also says that the Board must take into account release considerations. Release considerations include:
(a) the degree of risk (having regard to any likelihood of the prisoner committing an offence when subject to an early release order and the likely nature and seriousness of any such offence) that the release of the prisoner would appear to present to the personal safety of people in the community or of any individual in the community;
(b) …
(c) any remarks by a court that has sentenced the prisoner to imprisonment that are relevant to any of the matters mentioned in paragraph (a) or (b);
(d) …
…
(k) any other consideration that is or may be relevant to whether the prisoner should be released.
95 When the Board takes into account the above matters, it will be aware that if a parole order is made, the respondent will not be released but that he will remain in custody under the CDO for at least 12 months after the parole order is made. Thereafter, he may only be released from the CDO if a judge considers that his risk of committing a serious sexual offence can be acceptably managed in the community on a supervision order. If released, he will be subject to a supervision order which should reduce to an acceptable level his risk of committing any serious offence, as well as serious sexual offences.
96 It may sound contrary to logic to grant parole to a prisoner who is not going to be able to be released pursuant to the parole order. However, I hope that the Board may be able to see that due to the respondent's peculiar circumstances he could be granted parole for that very reason. That is, if granted parole he will present no risk to the personal safety of the community because he will remain in custody under the CDO for at least a further 12 months. Further, the granting of parole will ensure that the court reviews his CDO in a timely fashion. Lastly, if he is granted parole but remains in custody under the CDO it is more likely that specific sex offender treatment programmes will be made available to him. This will in turn protect the community if he is ultimately released.
Care, treatment and control
97 As I have indicated, my order is that the respondent be detained in custody for an indefinite term for control, care, or treatment.
98 It is appropriate that I state what I expect the control, care, or treatment will include. In accordance with the opinions of Dr Wojnarowska and Dr Tanney, my view is that it should include:
• an opportunity for the respondent to complete another SOTP;
• an opportunity for the respondent to have ongoing individual and/or group drug and alcohol counselling;
• with the consent of the respondent, investigation of anti-libidinal drug treatment;
• assistance in the formulation of a realistic release plan; and
• consideration of a downgrading of the respondent's custody security status so that he can be moved to a lower security prison in an attempt to prepare him for release into the community.
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