Director of Public Prosecutions for Western Australia v Williams [No 6] - [2011] WASC 33

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- WILLIAMS [No 6] [2011] WASC 33

CORAM: EM HEENAN J

HEARD: 19 JANUARY 2011

DELIVERED : 19 JANUARY 2011

PUBLISHED : 8 FEBRUARY 2011

FILE NO/S: MCS 23 of 2006

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
DEXTER CHARLES WILLIAMS
Respondent

Catchwords:

Dangerous sexual offender - Annual review - Need for report on suitability of potential accommodation - Power of court to direct preparation of report - Undesirability of adjournments

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA)
Criminal Investigations Act 2005 (WA)
Dangerous Sexual Offenders Act 2006 (WA), s 43

Result:

Review adjourned to enable applicant to submit accommodation assessment report

Category: B

Representation:

Counsel:

Applicant: Mr J Mactaggart
Respondent: Ms F Veltman

Solicitors:

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

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

Director of Public Prosecutions for Western Australia v Williams [2006] WASC 140
Director of Public Prosecutions for Western Australia v Williams [2007] WASC 95
Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206
Director of Public Prosecutions for Western Australia v Williams [No 3] [2007] WASC 286
Director of Public Prosecutions for Western Australia v Williams [No 4] [2008] WASC 307
Director of Public Prosecutions for Western Australia v Williams [No 5] [2010] WASC 8

EM HEENAN J: Listed for hearing is an application by the Director of Public Prosecutions for Western Australia pursuant to s 29 and s 31 of the Dangerous Sexual Offenders Act 2006 (WA). The Director is moving for an order that the detention of the respondent, Dexter Charles Williams, under the continuing detention order made by McKechnie J on 5 October 2007, as expressly not rescinded by Hasluck J on 16 December 2008 and as expressly not rescinded by Hall J on 14 January 2010, be reviewed as soon as practicable after 14 January 2011 pursuant to the Act.
Since that application was commenced orders were made by McKechnie J on 22 October 2010 in terms that:
(1)the application for an annual review of detention pursuant to s 29 and s 31 of the Dangerous Sexual Offenders Act be heard on 19 January 2011;
(2)the CEO arrange for examination and report upon the respondent by Dr Mark Hall, such report to be provided on or before the date two weeks prior to the date of the annual review hearing;
(3)the psychiatrist named in order (2) shall liaise with the Department of Corrective Services as to a management plan if appropriate for the respondent;
(4)pursuant to s 122 of the Criminal Investigation Act 2006 the psychiatrist may be supplied with and may view any audio visual recordings or interviews with the respondent or transcripts of the same for the purpose of preparing the report; and
(5)there be liberty to apply reserved to the parties on 24 hours' notice.
Pursuant to those orders, a psychiatric examination of the respondent was conducted by Dr Mark Hall, FRANZCP and he has prepared a report for the court which contains his detailed findings and observations. The report is dated 5 January 2011.
Dr Hall's report and other relevant papers have been included in a book of materials for the purposes of the third annual review of detention of this respondent which has been tendered in the proceedings today and is marked exhibit 1. In addition to Dr Hall's report, the book of materials comprises an individual management plan prepared by the Department of Corrective Services dated 25 May 2010; an adult Community Corrections Community Supervision Assessment Report by a senior Community Corrections officer dated 7 January 2011; a structured release plan by the acting superintendent and the case manager co‑ordinator of the regional prison at which Williams is presently serving his detention; and, finally, a Dangerous Sex Offender Treatment Progress Report by a forensic psychologist.
This hearing, which has commenced and which is now part‑heard, is the third annual review of the detention of the respondent. The history of his case, the circumstances leading to the initial detention order and the details of earlier annual reviews are contained in a series of decisions of this court which I shall now mention: firstly, a decision of Blaxell J of 11 July 2006, Director of Public Prosecutions for Western Australia v Williams [2006] WASC 140; next, a decision of McKechnie J dated 26 April 2007, Director of Public Prosecutions for Western Australia v Williams [2007] WASC 95; thirdly, a decision of the Court of Appeal delivered on 22 August 2007, Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206, in which an appeal from the decision of McKechnie J was allowed, resulting in the matter being recommitted to McKechnie J for further consideration; next, the second decision of McKechnie J dated 5 October 2007 in Director of Public Prosecutions for Western Australia v Williams [No 3] [2007] WASC 286 in which a continuing detention order was made; next, a decision of Hasluck J of 16 December 2008, Director of Public Prosecutions for Western Australia v Williams [No 4] [2008] WASC 307, in which, on the first annual review, a finding was made that continuing detention should be ordered and continued until further review; and finally, a decision of Hall J dated 15 January 2010 in Director of Public Prosecutions for Western Australia v Williams [No 5] [2010] WASC 8, where on the second annual review the detention order was continued, but in which Hall J noted the possibility that if Mr Williams' circumstances improved prior to the next annual review due in January 2011, an option for the respondent might be for him to make an application under s 30 of the Act for a review before the expiration of 12 months. Hall J observed that this possibility might provide some incentive for the respondent to take up the suggestions made by Dr Hall in the then most recent report made to the court and by his Honour in those reasons.
The position which has emerged today is that, as a result of efforts made by Mr Williams and further programmes undertaken by him whilst in prison over the last 12 months, discernible improvements in his condition have been noticed by the staff of the Department of Community Corrections, and confirmed by Dr Hall in his psychiatric report. These confirmed areas of improvement relate to Mr Williams' attitude towards what was previously an entrenched disposition towards alcoholism and, secondly, underlying sexual deviancy, which has at last been recognised and of which there are signs of improving control.
One consequence of this has been that in his report to the court Dr Hall has noted these improvements, but has concluded that Mr Williams remains at a high risk of reoffending if not subject to a continuing detention or supervision order and that the essence of Mr Williams' risk lies in his past history of sexual violence; partially addressed deviant sexual interests; lack of coping skills; potential for alcoholic relapse; previous poor response to supervision; relatively poor employment prospects; and the systemic problems with planning for release. Elsewhere in the report it is evident that Dr Hall considers that a release into the community under a suitably strict supervision order may be tolerable, but he points to a number of factors which need investigation.
In the Adult Community Corrections Community Supervision Assessment Report prepared by a senior Community Corrections officer and endorsed by the senior case work supervisor for the area and the manager on behalf of the chief executive officer of the Department of Corrective Services, a detailed program for release is documented and a series of potentially suitable conditions for a proposed supervision order are outlined.
It emerges from these materials that a major impediment to a consideration of any suitable supervision order is the absence of any concrete proposal for the accommodation of Mr Williams in the community. Indeed, it is not even apparent whether or not any potentially suitable accommodation could be found. It is clear that no definite proposals in this regard have presently been advanced and, as so much depends upon the suitability of such accommodation, there would be no alternative but to make a continuing detention order on the present evidence in the absence of the consideration of a suitable proposal for accommodation in the community under a conditional release order.
At page 21 of exhibit 1 it is recorded that the Department of Housing has yet to identify housing for the respondent or information about proximity to schools, parks and other areas where children may be found, and that without this kind of assessment there could not be any proposal addressed. Officers of the Department of Housing are aware of the respondent's circumstances, and have indicated that he will only be placed in accommodation which would meet the requirements of his prohibition order, which has been made independently under the terms of the Community Protection (Offender Reporting) Act 2004 (WA). Those departmental officers have indicated that they will require the Western Australian police and the Department of Corrective Services to review any dwelling they identify as possibly suitable for the respondent.
The Department of Housing, the Western Australian police and the Department of Corrective Services have agreed to work closely together to identify suitable accommodation and to provide close supervision, support and monitoring of the respondent. However, no such proposal along these lines or any others is presently before the court. That means that the possibility of a conditional supervision order cannot be adequately assessed.
This has left the court in something of a logistical dilemma. The situation, essentially, is that without investigation of possibly suitable accommodation, in the light of the psychiatric evidence which is before the court, there is no alternative but to make a continuing order for detention, as has been made on two occasions in recent years. However, to do that would seem to overlook the possibility that some suitable accommodation might be found and that it would need to be assessed.
There can be no confidence that if the matter were disposed of today and were to come up for another annual review in 12 months' time, or if it were to be the subject of an application for review by Mr Williams under s 30 of the Act himself, that a suitable accommodation choice would have been identified or would have been assessed. Not to put too fine a point on it, there is a risk that a court reviewing this detention in the future may finish up in a situation much as exists at the moment. What is needed is for an investigation to be conducted of the availability and suitability of potential accommodation, the assessment of that accommodation by an environmental scan as is conducted by the police dangerous sexual offenders squad in similar circumstances, and a report made to the court.
I notice that under s 43 of the Act the Court may, on its own initiative or on the application of a party, give directions in relation to the conduct of a proceeding under this Act. It is pursuant to that general power, as well as specific provisions dealing with the preparation of a psychiatric report under s 37, that psychiatric reports and other similar reports have been prepared in this and similar cases in the past. It seems that there is a need for a report to be prepared about the availability and potential suitability of accommodation which might meet a conditional supervision order such as has been envisaged by the psychiatrist in the present case.
This could not be achieved in the immediate future, but it is estimated that it would be possible within the next three months. I have, therefore, invited and have received an application by counsel for the respondent to adjourn these proceedings to enable such a report to be prepared and submitted, and I propose to grant that adjournment.
I wish to say something about adjournments of applications of this kind. Generally speaking, they are undesirable because they can postpone or delay the regular review of the continuation of detention of offenders which Parliament has directed should be undertaken at least annually. In the particular circumstances of this case, it seems to me to be warranted and an adjournment of three months to allow the report to be prepared would certainly, from the respondent's point of view, appear to be preferable to waiting for another 12 months without any certainty that the same analysis or investigation would then have been accomplished.
I add, however, that one should be cautious about granting adjournments of these applications in order to ensure that the regular programme of review of detention, which is built into the structure of the Act, is not inadvertently subverted and, in this case, I have indicated that I would only grant the adjournment if it was at the application of, or with the consent of, the respondent. An opportunity for instructions to be obtained in this regard was specifically sought and granted to the respondent's counsel and after a short adjournment the application was renewed with his specific consent. In those circumstances I consider that I should order and direct the preparation of a report in terms which I have discussed with counsel, that report to be available to the court and to the respondent not later than 28 March 2011 and that these proceedings accordingly be adjourned for continued hearing at 10.00 am on Monday, 11 April next. Those will be the orders of the court.