Director of Public Prosecutions (WA) v AA
[2010] WASC 59
•12 MARCH 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- AA [2010] WASC 59
CORAM: McKECHNIE J
HEARD: 12 MARCH 2010
DELIVERED : 12 MARCH 2010
FILE NO/S: MCS 33 of 2006
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
AA
Respondent
Catchwords:
Dangerous sexual offender - Review
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Continuing detention order made
Category: B
Representation:
Counsel:
Applicant: Mr J A Scholz
Respondent: Mr M R Gunning
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Gunning Barristers & Solicitors
Case(s) referred to in judgment(s):
State of Western Australia v AA (No 2) [2007] WASC 129(S)
State of Western Australia v AA (No 3) [2009] WASC 74
State of Western Australia v AA [2006] WASC 279
McKECHNIE J: [Delivered extempore and edited from the transcript]. I had the opportunity of reading the papers before I came in. These applications are always difficult and I think that difficulty is not confined to the judge but to every professional who is engaged in the matter.
The respondent is a dangerous sexual offender, State of Western Australia v AA [2006] WASC 279. Originally released under supervision, the respondent contacted police seeking help because he felt he might offend again. In due course he was returned to custody under a continuing detention order. State of Western Australia v AA (No 2) [2007] WASC 129(S).
I might say that those orders were made in the early stages of the Dangerous Sexual Offenders Act 2006 (WA) before everything had really geared up to deal with dangerous sexual offenders. In retrospect, it is difficult to avoid the phrase Mr Gunning, counsel for the respondent used, 'It was a disaster'. AA was clearly unsuitable for relatively unstructured release, something which has now been remedied in the very comprehensive work that has been done recognising what his complex needs are. In all events that detention continued following the first annual review: State of Western Australia v AA (No 3) [2009] WASC 74. This is now the second annual review.
The matters that led Murray J to find that the respondent is a dangerous sexual offender are unchanged and indeed are confirmed by the report of Dr Mark Hall dated 26 February 2009. The issue is whether the respondent should be further detained or released under supervision. It is really accepted by all parties, including by Mr Gunning, very responsibly, that at this stage the only order really that can be made on the material is an order for continuing detention.
I have had particular regard to a number of other matters. I note that the psychiatric report of Dr Hall, for the first time, finds that there is a mental illness present. I accept what Dr Hall says, that the debate as to whether his psychotic condition represents a major mental illness is academic, if not for the fact that he has been excluded from a noncustodial support process on the basis of a reported lack of diagnosis of a major mental illness. However, as Dr Hall says, it is inescapable that AA has mental health issues which fall within the domain of psychiatry.
I note that under Axis 1: Clinical Disorders, Dr Hall lists in addition to paedophilia, 'Schizophrenia, 'undifferentiated type‑episode with inter‑episode residual symptoms'. As Mr Scholz, counsel for the applicant, submits, this represents an advance because it now is a further piece of material to which regard can be had in deciding where and how AA's complex needs might be dealt with. I have also had regard to Dr Caple's report and her evidence this morning about the complex psychological and other needs of AA.
At the beginning of 2009, AA had an unreadiness for psychological intervention, an overwhelming fear of release from prison and significant coping and problem‑solving difficulties. It would appear that these have not significantly changed, although there are some tendrils of hope that the respondent may be becoming less resistant to the possibility of release. In his conversations with Mr Gunning, AA expressed it as the uncertainty which is creating some of the difficulties for him.
Until AA becomes engaged with a counsellor and a treatment program he remains unsuitable for supervision. In saying that I do not mean to suggest that this is AA's fault or that he is consciously unwilling to do so. Rather it is a reflection of the very complex needs which he has psychologically, coupled with a lower level of intellectual functioning and perhaps other matters which has led to this situation.
I accept Dr Caple's recommendations as to a staged process progressing towards release and that AA should be prepared for release over a period of time involving a gradual reduction in security and exposure to less secure settings, particularly perhaps a transfer to Bunbury Prison and the need to acquire important life skills such as meal preparation and cooking, money management and leisure time management, the latter being an issue which tended to derail recent counselling sessions with Dr Caple when she raised what the respondent might do on a weekend for leisure. Clearly there is work to be done there.
Dr Caple's recommendations are in line with those of Dr Hall who states in his report:
A slow and graduated program whereby his adaptive function is slowly improved and his exposure to open environments are slowly increased. The task is a complex one and robust and reportable inter agency coordination and cooperation will be essential in this regard. Furthermore, the lead time required to achieve meaningful action on such a collaborative effort as well as the likely pace of behavioural rehabilitation is such that the inter agency coordination is likely to require the better part of 12 months to develop and consolidate.
I note also Dr Hall's recommendation for a 24 hour supervised hostel or group home. Ms Wade's evidence is really that there is no such accommodation presently available. The prospects are not all that hopeful but perhaps not hopeless at this stage. Whether the respondent will be capable of adjusting to a supervision order in 12 months' time is not something I need to decide today. I am conscious that originally Murray J at the first hearing, and indeed the second, tried all explorations for a supervision order. I remain of the view, (and I do not think anybody associated with AA would have a different view), that a supervision order would be the most appropriate order in due course. However, it is clear and overwhelming from the evidence that we have not reached that stage. In all the circumstances, the only order I am able to make on the material is a continuing detention order.
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