Director of Public Prosecutions for Western Australia v Williams [No 5]
[2010] WASC 8
•15 JANUARY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- WILLIAMS [No 5] [2010] WASC 8
CORAM: HALL J
HEARD: 14 JANUARY 2010
DELIVERED : 15 JANUARY 2010
FILE NO/S: MCS 23 of 2006
MATTER :Dangerous Sexual Offenders Act 2006
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
DEXTER CHARLES WILLIAMS
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 - Annual review of indefinite detention - Whether serious danger to the community - Whether continued detention order or supervision order appropriate
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 29, s 33
Result:
Detention order continued
Category: B
Representation:
Counsel:
Applicant: Mr D Dempster
Respondent: Ms F R Veltman
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Legal Aid (WA)
Case(s) referred to in judgment(s):
Nil
HALL J: (This judgment was delivered extemporaneously and has been edited from the transcript)
Background
This is an application for the review of a continuing detention order under s 29 of the Dangerous Sexual Offenders Act 2006 (WA) (Act) in respect of Dexter Charles Williams. The background is that Mr Williams was sentenced to a total term of 11 years imprisonment on 17 March 2000. An order was made that he be eligible for parole but it was never granted.
Under the sentencing regime that then existed he was due for unsupervised release into the community on 10 July 2006. Prior to that date the DPP applied for a continuing detention order. An interim order was made on 11 July 2006. Subsequently, on 26 April 2007 the application was dismissed and Mr Williams was released. However, on 22 August 2007 the Court of Appeal allowed an appeal by the DPP and on 5 October 2007 the application was granted and a detention order was made.
That order was the subject of an annual review on 16 December 2008. On that date Hasluck J found that Mr Williams remained a serious danger to the community and that release on a community supervision order was inappropriate. Accordingly, his Honour ordered that the detention order should be continued until further review.
Relevant statutory provisions
Section 29(2) provides that reviews have to be carried out each year that the detention continues. The first review is due a year after the detention commences. Each subsequent review is due as soon as practicable a year after the last review. This is the second annual review. On 18 September 2009, Murray J ordered that Mr Williams be examined by a psychiatrist, Dr Mark Hall. That examination occurred and a report from Dr Hall was included in a book of materials tendered by consent at the hearing of this matter.
Section 33 of the Act provides that on a review the court must rescind the detention order if it does not find that a person remains a serious danger to the community. However, if the court finds that such a danger remains, the court can either expressly decline to rescind the order or rescind the order and make a supervision order. The paramount consideration is the need to ensure adequate protection to the community.
Evidence and analysis
The book of materials contains, in addition to Dr Hall's report, file notes and reports from the Department of Corrective Services and a report from a forensic psychologist, Dr Tamala Caple.
At the last review there was evidence that Mr Williams had not engaged in a meaningful way with treatment programs to address sexual deviance and alcoholism. It was recommended that Mr Williams should be made aware of the need for him to engage in programs before the next review.
In Dr Hall's report he notes that Mr Williams attended Alcoholics Anonymous on five occasions between January and March of 2009. He was then transferred to Casuarina to undertake the Moving on from Dependencies Program (MOFD). He completed that program on 29 May 2009. He was assessed as being motivated and in 'the action stage of change'. It was reported that he had demonstrated developing insight into his alcohol abuse and was observed to work hard on new concepts. He made significant efforts to develop a viable and realistic relapse prevention plan and this included prevention strategies, developing community supports and considering employment and recreational activities on his eventual release.
Mr Williams acknowledged that he had used alcohol in the past to cope with grief and it was recommended that he receive counselling in this regard. He also identified residing in the metropolitan area as a high risk factor because the people he knows in Perth regularly abuse alcohol.
After completing the MOFD program Mr Williams asked to return to a regional prison so he could re‑engage with Alcoholics Anonymous and make arrangements for release. Unfortunately, however, Mr Williams did not attend any further AA meetings, despite encouragement. He stated he wanted to do it by himself and that he had a book to help him.
In regards to sexual offender treatment programs, Mr Williams has adamantly refused to participate in such programs in the last year. He says he did such a program in 2004 and has not re‑offended since that date. He told Dr Caple that he no longer has sexualised thoughts about children. He said he does not want to be forced to remember the past and he wants to focus on the future.
The extent to which the treatment program in 2004 was beneficial may be doubted. In discussions with Dr Caple, Mr Williams presented a negative view about that program and the facilitator's aims. It must also be noted that Dr Hall notes that when released in 2007, Mr Williams had unsupervised access to children and failed to meet reporting requirements at that time. He says that he had difficulties understanding the reporting requirements, but this conduct does indicate a lack of awareness of the need to avoid risk factors that have led to prior offending, such as access to children. Furthermore, the 2004 program is now five years ago; its relevance is limited by that fact. There needs to be some more recent confirmation that deviant behaviour has been addressed and controlled. Mr Williams' belief in that regard is not sufficient.
Dr Caple's conclusions were as follows, and I quote from page 45 of the book of materials:
Although he has been more willing to explore his alcohol issues, Mr Williams is still unwilling to engage in a further sex offender treatment program. Due to a number of barriers that are present it is considered that Mr Williams is not at this point in time able to meaningfully engage in such a program. As a consequence of Mr Williams' continued low readiness for group based sex offender treatment, maintaining motivation to address his alcohol use and developing strategies to prepare him for social reintegration were focussed upon. Mr Williams has also recently engaged in individual counselling to address a number of barriers to him making behavioural changes and to address specific dynamic risk factors. In a custodial setting these intervention goals will continue. If Mr Williams is released to the community, he will require considerable support.
Dr Hall concluded that the primary focus on any treatment plan and rehabilitation strategy should be abstinence from alcohol. He said that group programs in regards to sexual deviance should be given less emphasis. He said that the relative contribution of the latter is minor in comparison to successful management of alcohol abuse.
In relation to alcohol abuse Dr Hall said, and I quote from page 26 of the book of materials:
... the best treatment or rehabilitation strategy for Mr Williams would be ongoing attendance at AA meetings, and a concerted effort by Mr Williams to work through the AA program of recovery, with the assistance of a sponsor. In addition, the use of pharmacological agents commonly used to assist in the treatment of alcohol dependence could be considered. However, that would require voluntary consent which Mr Williams is unlikely to provide.
In fact, Ms Veltman has said that her instructions are that Mr Williams would give consent to such pharmacological treatment.
Dr Hall's conclusions were as follows, and I quote from page 28 of the book of materials:
Mr Williams is at high risk of reoffending if not subject to a continuing detention or supervision order. The essence of Mr Williams' risk lies in his past history of sexual violence, his lack of coping skills and his lack of preparedness for independent community living, his propensity to use alcohol, the effects of alcohol on his inhibitions, his ongoing reluctance to discuss his deviant interests for fear of repercussion, a lack of genuine personal support in the community, his poor employment prospects and the fact that any progress made thus far is both slight and as yet untested in the community.
As can be seen from this, addressing and controlling the use of alcohol is an important factor but not the only risk factor. Furthermore, doing the MOFD program, whilst highly commendable and a positive step to rehabilitation, is not enough in itself. Avoiding alcohol in the community when presented with ready access and the stressors that may prompt its use requires more than a positive attitude. It requires support structures and a willingness to use them.
As I have noted, alcohol is also not the only factor that contributes to Mr Williams' past behaviour. It's an important factor, but alcohol alone does not cause Mr Williams to offend. The underlying sexual deviant interests are influenced by his use of alcohol and they have not, in my view, been adequately addressed.
Dr Hall suggests that a number of pre‑conditions need to be met before supervised release could have a chance of being effective. They are that Mr Williams engage with an alcohol recovery program, preferably Alcoholics Anonymous; secondly, that he agree to leave protective custody and engage in a transitional work program and, thirdly, that he consent to contact and mobilise community supporters prior to release.
As to the latter matter, Mr Williams says that he has given information in regards to community supporters to a corrections officer. I note that a report from that officer appears at page 31 of the book of materials, and I quote:
The author has also endeavoured to identify people willing to support Mr Williams in the community. Well respected members of the Aboriginal community in [a regional centre] spoken to by the author were not able to identify any community members who would be willing to provide support for Mr Williams. Mr Williams has put forward names of individuals who may be willing to assist him. Mr Williams will not permit the author to contact these people to put in place community support for him pre‑release. Mr Williams states he wishes to contact these people himself once he regains freedom.
I should also note that the prospect of suitable accommodation in the community remains uncertain at this stage. Mr Williams' aunt does not yet have rental accommodation in the proposed area Mr Williams wishes to live and in any event, whether such accommodation would be appropriate is yet to be assessed.
The viability of appropriate rehabilitation plans and support structures is relevant to whether any risk of re‑offending can be adequately managed. There are further steps that Mr Williams can make to positively progress to a point where release can be a realistic option.
Conclusion
On the evidence presented I am satisfied that Mr Williams remains a serious danger to the community. There continues to be an unacceptable risk of re‑offending. I have given careful consideration to whether a supervision order could be made. However, I am not satisfied that such an order, as things presently stand, is capable of being made. The types of conditions that would be normally required in such a case would not be within the capacity of Mr Williams to comply with.
He has made substantial treatment gains in respect of alcohol abuse but the prospect of those gains being maintained in the community appear to me to be very poor without an adequate rehabilitation plan that includes support structures, engagement with a continuing recovery program and possibly pharmacological prevention. In these circumstances, I decline to rescind the continuing detention order.
I do note that the possibility was raised at the hearing that if Mr Williams' circumstances improve prior to the next annual review, an option for him would be to make an application under s 30 of the Act. This might provide some incentive to Mr Williams to take up the suggestions made by Dr Hall in his report and by me in these reasons.
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