Director of Public Prosecutions (WA) v AA [No 7]

[2014] WASC 227

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- AA [No 7] [2014] WASC 227

CORAM:   McKECHNIE J

HEARD:   8 MAY 2014

DELIVERED          :   27 JUNE 2014

FILE NO/S:   MCS 33 of 2006

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

AA
Respondent

Catchwords:

Dangerous sex offender - Suitable for release on supervision - No mental health accommodation after 7 years - Must be detained in custody

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Expressly decline to rescind order for detention

Category:  B

Representation:

Counsel:

Applicant:     Mr M T Trowell QC

Respondent:     Mr M R Gunning

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Gunning Barristers & Solicitors

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

DPP (WA) v AA [No 6] [2013] WASC 154

DPP (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297

The State of Western Australia v AA [No 2] [2007] WASC 129(S)

McKECHNIE J:

1. After the sixth annual review hearing on 8 May 2014, I delayed delivering judgment in the hope that a foreshadowed meeting between the Commissioner of Corrective Services and the Commissioner for Mental Health would provide a solution to the accommodation issue which has bedevilled each application. I have received a letter advising the outcome of the meeting. No solution was forthcoming and so I proceed to judgment.

The proceedings

1. On a DPP application in 2006, the respondent was declared a dangerous sexual offender. He was placed on a supervision order but given no supports within the community. Two months after he was released from prison, on 16 February 2007 at just after 7.00 pm, he made a 000 call and was put on to the police. He told the operator that he was a sex offender and wanted help because he felt as if he wanted to offend again. He said that he had not done anything yet but he felt as if he wanted sex again. At one point he said that he 'might do it again'. He also told the operator that he was a psychiatric patient. Police attended and apprehended him at the address he gave. He has been detained in custody since April 2007. At the time of application the respondent was completing a sentence of 3 years and 4 months' imprisonment.

2. He has now been in detention for over 7 years, a period more than twice as long as the sentence which punished him for his crimes.

3. The court has repeatedly held that the community will be adequately protected if he is released on supervision. In DPP (WA) v AA [No 6] [2013] WASC 154, I adjudged that he could not be released because there was no proper accommodation for him in the community. I set out the history and commented on the lack of inter‑agency cooperation, an issue which remains.

The evidence at this review

1. In a report, the court appointed psychiatrist Dr Hall wrote:

   45.Mr [AA] has made no significant progress with respect to those risk factors related to processes within himself that contribute to his risk of reoffending. However, despite the lack of suitable accommodation at this juncture, the sustained commitment of the Community Forensic Mental Health Service to his care planning and future case management, and the facilitative effect of that on referrals to psychiatric hostels, represents an encouraging and positive systemic change relative to the circumstances that existed when Mr [AA] was first declared a dangerous sexual offender. On balance, however, Mr [AA]'s risk of reoffending is considered to remain high.

   46.Summary and recommendations

   Considering the above, I am of the opinion that Mr [AA] remains at high risk of re-offending sexually if not subject to a continuing detention or supervision order. The features that contribute most significantly to Mr [AA]'s ongoing risk are those of:

   »Deviant sexual interest, specifically paedophilia

   »Emotional instability, with paroxysmal intense agitation

   »Poor problem solving and coping skills

   »Poor insight into his treatment needs

   »Vulnerability to decompensation under stress

   47.Mr [AA] requires support, company, structure and supervision. I am of the opinion that, if placed in supported and supervised accommodation such as a licensed psychiatric hostel, and if provided with psychiatric case management through the Community Forensic Mental Health Service, in conjunction with the monitoring and supervision strategies available under the provisions of a supervision order, those factors that contribute to his high risk of reoffending would be manageable.

2. Expanding on the report in oral evidence, Dr Hall noted that the respondent's psychiatric condition has not significantly changed other than perhaps some mild deterioration:

   I found Mr [AA] to be more disorganised in his thinking and speech. So much so that it was harder during this assessment to follow what he was saying to me than when I assessed him a year ago. The content of what he was saying had the same religious and persecutory delusional flavour but was less coherent (ts 139).

3. Dr Hall thought that the stress of the situation had got to the respondent. Stress by its nature can cause the level of symptoms to increase.

4. Dr Hall's opinion is that if the respondent was placed in a psychiatric hostel where there is an infrastructure of emotional and actual physical support, he would be less inclined to fluctuations due to stress.

5. The symptoms referred to by Dr Hall became manifest during the hearing when the respondent, who was appearing by video link, became obviously distressed. He was subsequently treated at Dr Hall's suggestion and after a time, the respondent recovered sufficiently for the hearing to continue. As Dr Hall put it succinctly, 'the respondent remains vulnerable to acute decompensation under stress'.

6. Dr Hall commented on the possibilities of removing the respondent from his prison accommodation to a minimum security facility such as Bunbury Regional Prison. Dr Hall did not endorse the proposition:

   It reduces his access to those services such as the Community Forensic Mental Health Service, his - the DSO psychology team, for example. It reduces his access to those services that would be his supports in the event of his release and we have to consider what is the end game. So the end game is not independent living and progressing him to that through the pre-release unit at Bunbury. The end game is placement at a psychiatric hostel in the metropolitan area where he has access to those supports (ts 146 - 147).

7. As part of the respondent's treatment, Dr Hall did endorse a proposal that the respondent be allowed closely supervised outings as part of his treatment. Dr Hall thought that would be helpful if it was possible. If the respondent is closely supervised on such outings he would remain 'detained in custody' under the terms of the Division 2 order.

8. The mental health challenges facing the respondent are best summed up by an interchange with Dr Hall in the course of cross‑examination:

   If you stripped away the paedophilia - - -?---Yes.

   - - - and he was just a person - - -?---Yes.

   - - - would he be in a psychiatric hostel? Would that be really only way he could cope in the community?---Yes (ts 149).

9. Dr Galloghly, a clinical and forensic psychologist, gave written evidence as to the respondent's progress since the 2013 annual review:

   19.Mr [AA]'s primary treatment and management issue pertains to securing suitable supported accommodation in a community psychiatric hostel. Unfortunately, an appropriate solution to this problem has yet to be found. As such, Mr [AA]'s rehabilitation has in essence stalled, though he appears to have maintained basic behavioural treatment gains associated with his offending. The issue of securing community accommodation is beyond the scope of this report and should be elaborated upon in the Community Correction Officer's report for this Annual Review.

   20.Mr [AA] has steady paedophilic interests and his combination of impaired intellect, erratic emotional personality traits and chronic psychiatric symptoms necessitate the need for a comprehensive multi-service approach to his management. His high level of need and little capacity for age appropriate relationships indicate that he will require ongoing support with regards to managing his offending behaviour, mental and general health, finances, accommodation, and vocational and leisure pursuits. Basic behavioural factors such as providing ongoing vocational activity and support, and idiosyncratic issues such as managing his tobacco use are likely to [be] prevalent in any community management plan.

10. Dr Galloghly pointed out the risk of general regression from continued incarceration:

    17.While Mr [AA] maintained that he is comfortable in prison, he is likely to become more institutionalised over time. Additionally, greater time in custody will increase his risk of general regression as well as exposure to the health and mental health issues associated with incarceration. Should Mr [AA] therefore continue to be placed under a Detention Order, it is imperative that the parties involved in his management continue to work hard on securing suitable accommodation. The consistency of his therapeutic relationship with Mr Summerton can be viewed as a positive factor.

11. Ms Dabala is the Senior Community Corrections Officer with the Public Protection Unit. In the period since the last review Ms Dabala has made extraordinary efforts to try and obtain accommodation for the respondent. Her efforts are to be commended. It is no fault of hers that accommodation within an approved psychiatric facility remains unavailable.

12. In DPP (WA) v AA [No 6] I concluded:

    48.As bureaucrats have been unable to initiate robust inter-agency cooperation after seven years, in my respectful view, there is now a need for Ministerial intervention to ensure that the objectives of the DSO Act are fully realised.

    49A person should not be detained in custody if the community can be adequately protected by their release on strict supervision. That release requires appropriate steps by Government to facilitate the transition into community life.

    …

    55.But there are organisational deficits within Corrective Services and other departments which manifest as institutional State indifference to any order but detention. Detention is not the sole or even preferred option under the DSO Act. Unless organisational improvements are made in Mr [AA]'s case and others the option of supervision within the community will decline even as the Government makes significant investment in electronic monitoring. Electronic monitoring is only one risk reduction measure and not the most important. Without immediate attention to the issues thrown up in this review, adequate protection of the community is unlikely in some cases.

13. Whether there has been Ministerial intervention I do not know, but there has been no significant progress for another year.

14. A letter received from the Deputy Commissioner of Adult Justice Services sets out what has recently occurred:

    On 9 May 2014, Ms Astrid Kalders Assistant Commissioner of Adult Community Corrections, Mr Brett McMerrin Assistant Commissioner Custodial Services and Ms Tatjana Govozdenovic, Manager Public Protection Unit met with Mr Tim Marney, Mental Health Commissioner, to raise concerns about the lack of access to psychiatric accommodation for Dangerous Sexual Offenders (DSOs).

    Offenders such as Mr [AA] and Mr Unwin were highlighted to Mr Marney, as they are unable to get access to psychiatric hostels, and DCS are seeking the support of the Mental Health Commission to influence such access, given that they partly fund the providers. At the meeting, Mr Marney stated that their current model does not give them any influence as they only provide a small subsidy and all service providers can accept or decline referral/s as they see fit.

    Mr Marney expressed the view that DCS should seek its own funding for the access to these services. As you may be aware, further funding in relation to this matter is unlikely to be successful. The Mental Health Commission is the holder of the funding pertaining to persons who suffer mental health problems.

    Following the meeting, DCS wrote to Mr Marney strongly requesting that the Mental Health Commission review what options may be available for their agency to assist outside of its present parameters in the case of current and future complex need DSOs. Further to this, on 30 May 2014 the DCS Commissioner met with Mr Marney to discuss further possible options.

    Offenders such as Mr [AA] predominantly have a mental health need, and are entitled to services, as are other people in the community. A meeting was held on 17 June 2014 between Ms Astrid Kalders, Assistant Commissioner of Adult Community Corrections and the Chief Executive Officer and General Manager of [a psychiatric facility] where it was agreed they would re-consider Mr [AA]'s application. The Department is now awaiting a response from [the psychiatric facility].

15. From this letter it appears that it took senior bureaucrats a year from the decision in DPP v AA [No 6] to arrange a meeting.

16. Following an order that a dangerous sexual offender is to be detained in custody, a review cannot be carried out for one year, unless the court is satisfied that there are exceptional circumstances that relate to the person: DSO Act s 29(2); s 30(2). So a delay in giving judgment will necessarily be adverse to a respondent, as it lengthens the time before which a review might occur. The delay is effectively dead time. I have decided it is unfair on the respondent to delay further in the hope that the psychiatric facility might reverse its decision.

Findings

•The respondent remains a dangerous sexual offender. No one has ever submitted otherwise.

•That being the case, the court must either order that he be detained in custody for control, care or treatment or be released under supervision.

•The paramount consideration is the need to ensure adequate protection of the community.

•A relevant consideration ranking after the paramount consideration is the length of time the respondent has been in custody. The respondent has been detained for more than 7 years, a period greater than twice the length of his original sentence.

•If the respondent was not a dangerous sexual offender but an ordinary member of the community, he would be appropriately residing in a psychiatric facility and being treated for his significant mental health issues.

•There has been a deterioration in the respondent's mental health.

•A longer period in custody will increase the risk of general regression.

•If the respondent was released under a supervision order to a psychiatric facility, having regard to the paramount consideration and the other considerations, the community will be adequately protected.

Conclusion

1. In The State of Western Australia v AA [No 2] [2007] WASC 129(S) delivered on 20 June 2007 Murray J held:

   I cannot accept the proposition that this offender, a man now aged 47, who has served the sentences for the offences which provided the trigger for these proceedings, is condemned to remain in prison for the rest of his life.

   Finally, in parting with this case, I wish to say this. The respondent is made the subject of a continuing detention order upon the proper application of the Act, but essentially because there is an incapacity to accommodate him in the community in structured, supervised accommodation of a kind appropriate to his needs, if he is to be enabled to function in the community in circumstances where he will not present a danger of the commission of serious sexual offences.

   No such accommodation appears to be provided by the State, and that which is provided by private agencies is extremely limited. The demand for that accommodation is very substantial. It is therefore the case that the waiting lists are long, and it is all too easy to reject a difficult case such as that of this respondent when the agency in question can readily employ its services for the assistance of others who do not present the management difficulties that the respondent does.

   It is not for the court to make any observation about the solution to this problem, but a solution must be found. Otherwise, this Act will operate to keep sexual offenders in prison indefinitely by default [20] - [23].

2. What was foreshadowed by Murray J seven years ago has come to pass.

3. The DSO Act s 17 provides two possibilities if a dangerous sexual offender declaration is made:

   -Detention in custody for care, control or treatment.

   -Release under conditions of a supervision order.

4. The paramount consideration is the protection of the community.

5. Obviously Parliament foresaw that the community could be adequately protected by a supervision order in appropriate cases. Otherwise Parliament would have mandated detention as the only measure of adequate community protection.

6. It is, with respect, wrong for commentators to assert, as they have, 'Despite being declared a serious danger to the community a judge nevertheless chose to release an offender on supervision'.

7. Unless a person is found to be a serious danger to the community no order can be made. It is the essential pre‑condition.

8. Parliament's intention to permit some dangerous sexual offenders to be released on conditions (s 17(1)(b)) is frustrated if the Executive fails to provide appropriately for supervised release.

9. For seven years, the Executive, represented by the Department of Corrective Services and Mental Health Services, has failed to resolve the issue of psychiatric accommodation.

10. Following a finding that the respondent is a serious danger to the community, I have no discretion. I must make one or other order under DSO Act s 17: DPP (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297.

11. The community would be adequately protected by a supervision order with a condition that the respondent reside in an appropriate psychiatric facility. The respondent's mental health is deteriorating with his continued detention.

12. But because of longstanding Executive inaction I must expressly decline to rescind the continuing detention order.

13. The civilisation of a society can be judged by the way it treats its prisoners said Winston Churchill.

14. Perhaps nobody much cares about a short, stout middle aged man with a diagnosis of paedophilia and deteriorating mental health likely to be in prison forever.

15. But his case diminishes us all.