Director of Public Prosecutions (WA) v AA [No 8] - [2015] WASC 273

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- AA [No 8] [2015] WASC 273

CORAM: JENKINS J

HEARD: 2 JULY 2015

DELIVERED : 2 JULY 2015

PUBLISHED : 29 JULY 2015

FILE NO/S: MCS 33 of 2006

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
AA
Respondent

Catchwords:

Dangerous sexual offenders - Annual review - Whether respondent remains a serious danger to the community - Whether community would be adequately protected if respondent was released under a supervision order

Legislation:

Dangerous Sexual Offenders Act 2006 (WA) s 17, s 30, s 33

Result:

Expressly decline to rescind continuing detention order

Category: B

Representation:

Counsel:

Applicant: Ms K Robinson
Respondent: Mr M R Gunning

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Gunning Barristers & Solicitors

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

Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
The State of Western Australia v AA [No 2] [2007] WASC 129 (S)

JENKINS J: The respondent, AA, is the subject of a continuing detention order (CDO) made by Murray J on 28 November 2007 pursuant to the Dangerous Sexual Offenders Act 2006 (WA) (the Act) s 17: The State of Western Australia v AA [No 2] [2007] WASC 129 (S).
As required by the Act, annual reviews of the CDO have been conducted since the order was first made. On 2 July 2015, I heard the 7^th annual review of the CDO. I ordered that I expressly declined to revoke Mr AA's CDO. These are my reasons for making that order. These reasons should be read together with all earlier reasons for the decisions made under the Act which relate to Mr AA.
As McKechnie J noted in his reasons for decision published after the previous annual review, judges of the court have repeatedly held that the community would be adequately protected if Mr AA is released on a supervision order on condition that Mr AA is required to reside in a psychiatric hostel or other accommodation which would provide him with an appropriate level of support and supervision. Supervised and supported accommodation is required because of Mr AA's risk of reoffending, his intellectual disability and his mental illness, specifically his diagnosis of schizophrenia. The lack of such accommodation has meant that Mr AA has been detained in custody for over seven years and he may be in custody for, at least, another 12 months after this review.

Evidence at the 2015 review

Doctor Mark Hall, a consultant forensic psychiatrist, was appointed by the court to prepare a psychiatric report in respect of Mr AA for this review. He interviewed Mr AA and reviewed the relevant written material about Mr AA. Doctor Hall has previously prepared reports under the Act about Mr AA.
In his report dated 2 June 2015, Dr Hall stated he is of the opinion that despite continued treatment with anti‑psychotic medication, Mr AA's mental state has declined slightly over the past two years in that he has become more preoccupied with delusional ideas and he exhibits a greater degree of mental disorganisation. Doctor Hall quoted some of the comments made to him by Mr AA and these had an obvious delusional character. He noted that although Mr AA is jovial most of the time, he is nonetheless unpredictable, with an ongoing vulnerability to sudden mood swings associated with anxiety, agitation, verbal aggression and paranoia, often triggered by his misinterpretation of another's meaning or intention or by frustration of his desire to have a perceived need met immediately. The mental state examination conducted by Dr Hall confirmed this impression. Doctor Hall said that Mr AA was:
angry, disorganised and rambling at the commencement of the interview, specifically over the issue of accommodation. Although he became pleasant, calmer and more coherent as the interview progressed. He displayed marked adherence to the themes of accommodation and religion, and was observed to perseverate his response at times. Bizarre religious delusions were spontaneously expressed ... He described auditory hallucinations albeit in very vague terms. He denied suicidal ideation. Intellectual impairment was readily apparent and he exhibited a concrete style of thinking and reasoning. He had very limited insight into his psychiatric symptoms and the need for treatment. His judgment was mildly impaired at the time of the assessment [29].
Doctor Hall conducted an updated risk assessment and in that context he said:
Mr [AA] has made no progress with respect to those risk factors related to processes within himself that contribute to his risk of reoffending. In addition, it is of concern that his mental state has been steadily deteriorating despite continued treatment with antipsychotic medication. To what extent his frustrated progress toward release has impacted upon his mental state is unclear. However, the ongoing involvement of the Community Forensic Mental Health Service in the multi‑agency effort to accommodate Mr [AA] in the community, and the role of that service in his future case management, remains 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 [34].
Doctor Hall concluded his report with his opinion that if Mr AA is placed in supported and supervised accommodation such as a licensed psychiatric hostel, and if he is provided with psychiatric case management through the Community Forensic Mental Health Service (CFMHS) in conjunction with the monitoring and supervision strategies available under a supervision order made in accordance with the Act, the factors which contribute to Mr AA's high risk of reoffending would be manageable. Conversely, Dr Hall is of the opinion that if Mr AA were to reside in a less supported or structured setting, his risk would be unmanageable.
In his oral evidence, Dr Hall confirmed that Mr AA's mental health had deteriorated slightly over the past 12 months. However, he is not unwell enough to warrant admission to a psychiatric hospital. Neither is the deterioration serious enough to alter Dr Hall's view that Mr AA's risk of reoffending could be safely managed in the community if Mr AA was accommodated in a psychiatric hostel.
Doctor Dylan Galloghly, a clinical and forensic psychologist with the Forensic Psychological Services (FPS) within the Department of Corrective Services (DCS) prepared a report dated 1 May 2015, for the review. Doctor Galloghly noted that Mr AA had continued to have regular counselling with Mr David Summerton from the FPS. These sessions generally occur on a monthly basis and their main functions are to maintain a therapeutic relationship and to maintain a 'holding' role while the search for a community accommodation option continues. Mr Summerton had told Dr Galloghly that much of his work with Mr AA involved managing Mr AA's mental state given the fluctuating emotions associated with having the possibility of release come and go on a periodic basis. Mr Summerton is reticent to explore deeper clinical issues with Mr AA given the uncertainty of future plans. A more active focus on practical risk management issues is envisaged once a bona fide release plan is secured. Despite this, Dr Galloghly said that the counselling case notes indicated that Mr Summerton and Mr AA regularly touched on issues such as Mr AA's delusions and how his family dynamics and development relate to his offending.
Unlike Dr Hall, Dr Galloghly said that there was no observable evidence of delusional activity when he interviewed Mr AA and Mr AA's mental state remained stable throughout the assessment. Doctor Galloghly and Dr Hall's interviews occurred approximately 20 days apart. The difference in Mr AA's presentation at each interview indicates the lability of his moods and mental state.
Doctor Galloghly maintained his position, which he has expressed in earlier reports, that Mr AA is likely to become more institutionalised the longer he spends in custody. Additionally, a longer period in custody will increase Mr AA's risk of general regression, and expose him to the health and mental health issues associated with incarceration. Doctor Galloghly said that should the CDO not be revoked, it was imperative that all those involved in Mr AA's management continue to work hard on securing suitable accommodation for him in the community. In that respect, Dr Galloghly said that Mr AA will continue to be managed by FPS whether he is in custody or released into the community.
Doctor Galloghly said that the uncertainty of Mr AA's future had encumbered FPS' ability to provide therapeutic counselling to Mr AA and Mr AA's rehabilitation had stalled whilst he awaited release.
In conclusion, Dr Galloghly said:
Mr [AA] has enduring diagnoses of paedophilia and schizophrenia, which combined with impaired intellect and an immature personality style; 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 regard to managing his offending behaviour, mental and general health, finances, accommodation, and vocational and leisure pursuits [17].
Ms Jane Henshall, a senior community corrections officer with the DCS prepared a community supervision assessment for this review. Ms Henshall and Ms Astrid Kalders, the assistant commissioner for Adult Community Corrections, within in the DCS, supplemented that report by oral evidence.
Ms Henshall reported that since the last annual review, Mr AA has been the subject of ongoing monthly Inter‑agency Public Protection Committee meetings. As a psychiatric hostel which was prepared to accept Mr AA had not been found, representatives from the State Forensic Mental Health Service and the DCS had liaised with the Mental Health Commissioner, to try and progress Mr AA's case. Regrettably, the Mental Health Commission had declined an invitation to be a permanent member of the inter‑agency committee.
Ms Henshall and Ms Kalders detailed the approaches which had been made to the Richmond Fellowship WA (now known as the Richmond Wellbeing), Honey Brook Lodge, Casson House, Salisbury Home, and Romily House, to ascertain whether they would be prepared to accept Mr AA.
Richmond Wellbeing said that Mr AA may be reconsidered for future placement at the Ngulla Mia Residence on the condition that Richmond Wellbeing assessed Mr AA whilst in prison to determine whether his experience of 'Voice Hearing' could be worked with to support his recovery and enhance the likelihood of his gradually being reintroduced into the community. Ms Henshall reported that based on the clinical opinions of Mr AA's mental health treatment providers, the 'Voice Hearing' programme was deemed unsuitable for Mr AA. On 19 June 2015, Ms Kalders wrote to Richmond Wellbeing requesting that Mr AA be reconsidered for future placement without the need for him to be included in the 'Voice Hearing' programme. At the hearing of the annual review, Ms Kalders testified that Richmond Wellbeing had refused her request.
In respect to Casson House, Mr Nick Casson, CEO of Casson House, had said that Casson House may not be suitable for Mr AA due to its close proximity to a primary school. He suggested that a placement at Woodville House in the Helena Valley may be more suitable. However, this facility is currently undergoing an extension and will not be operational until November 2015, at the earliest. Mr Casson requested that a referral form be forwarded to Casson House. This was completed on 15 June 2015.
The operator of the Salisbury Home had advised that they could not offer accommodation to Mr AA as they did not have the expertise to deal with sex offenders. A subsequent inquiry has revealed that they are now open to further discussion regarding the possibility of accommodating Mr AA. However, no accommodation has been offered to Mr AA and there is no likelihood of it being offered in the short term.
Honey Brook Lodge and Romily House declined to offer accommodation to Mr AA. Honey Brook Lodge had previously said 'yes' but reconsidered and then refused him a place.
Additionally, approaches have been made to three other psychiatric hostels. The operators of Devenish Lodge had indicated that they were willing to liaise with the CFMHS regarding Mr AA. However, the manager of the lodge was on leave until 15 June 2015 and Ms Henshall reported that it was unlikely that there would be an outcome of this application in time for the hearing of this matter. At the review hearing, I was advised that there was still a possibility of a placement at Devenish Lodge but no definite placement had been offered. The operators of two other psychiatric hostels had declined to provide a place for Mr AA.
Thus, there is currently no available accommodation suitable for Mr AA in the community. Whilst it is very important that all the options which are still possibilities are investigated, a supervision order would not protect the community from Mr AA's risk of reoffending without there being a firm offer of accommodation from a psychiatric hostel or similar facility.
Ms Kalders testified that, unfortunately, all the psychiatric hostels are operated by private providers who are not under any obligation to accept Mr AA. Secondly, there is no central list kept of available places at the psychiatric hostels. Therefore, DCS staff either have to make repeated enquiries with individual hostels or rely on hearing second hand about the possibility of a placement becoming available at a particular hostel. Thirdly, even once a potential hostel place is identified, considerable education has to occur with the hostel operator about Mr AA and the additional support available to him prior to a hostel operator being able to make an informed decision as to whether it is prepared to offer a place to Mr AA. These factors make the identification of a placement at a hostel time consuming and often fruitless.
Ms Henshall also raised the possibility of Mr AA having escorted outings under the DCS' re‑integration leave policy. In order to participate in this programme, Mr AA must achieve a minimum security rating. This would require his current security rating to be overridden by the DCS Commissioner. Further, an appropriate sponsor, community residence and psychiatric hostel which could facilitate day visits and activities would need to be identified.
Each witness who gave evidence doubted that Mr AA's involvement in the program would be valuable. To the contrary, they thought that unless a long term placement had been found, his involvement in the re‑integration leave program would be counter‑productive as it would destabilise Mr AA and give him a false hope of release.
Ms Henshall and Ms Kalders concluded that despite the efforts made to secure psychiatric hostel accommodation, suitable accommodation had not been secured to date. However, discussions regarding a possible placement at Devenish Lodge, Salisbury Home and the referral for possible placement at Woodville House remained current and DCS would continue to pursue them and any other avenues which came to the Department's attention.

The law

The Act s 33 states:
Review of detention under continuing detention order
(1)When the court, on an application made under section 29 or 30, reviews a person’s detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
(2)The court may, if it finds that the person subject to the order remains a serious danger to the community, either ‑
(a)expressly decline to rescind the order; or
(b)rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.
(3)In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.
The meaning of s 33 is clear. I must rescind the CDO if I do not find that Mr AA remains a serious danger to the community. If I find that Mr AA remains a serious danger to the community, I may either expressly decline to rescind the CDO or rescind the order and make a supervision order.
In deciding whether to decline to rescind the CDO or to make a supervision order, I should adopt the least restrictive alternative which is compatible with the protection of the community: Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297. The Act s 33(3) makes it clear that the paramount consideration for me is the need to ensure the adequate protection of the community.

Does Mr AA remain a serious danger to the community?

Mr AA's counsel did not dispute that Mr AA remains a serious danger to the community, although I take into account that Mr AA's ability to understand that concept is limited due to his intellectual disability and mental health issues.
I was and remain satisfied on the basis of Dr Hall's uncontroverted expert evidence, that Mr AA remains a serious danger to the community.

Whether to expressly decline to rescind the continuing detention order or to rescind the order and make a supervision order?

The Director of Public Prosecutions submitted that the CDO should not be rescinded. Mr AA's counsel did not demur from this conclusion but he expressed concern about the length of time Mr AA had been in custody on the CDO despite Mr AA initially being released on a supervision order which would have expired by now. He also expressed frustration that during the period of the CDO, the State authorities had been unable to locate suitable accommodation for Mr AA.
I determined that Mr AA's risk of committing a serious sexual offence if released into the community can only be managed in a highly structured environment. This would necessitate his placement in a psychiatric hostel or other similar facility which included both day to day supervision and some therapeutic support. For Mr AA's risk of serious sexual offending to be adequately managed in the community there would also have to be a multi‑agency collaborative case management by the CFMHS, community corrections officers and the senior management team of the Public Protection Unit within the DCS, the FPS psychology team and the Western Australian Police Sex Offender Management Squad, in addition to GPS tracking. However, as noted in previous reviews, there is an overarching requirement for accommodation to be found in a psychiatric hostel or other similar facility. This has not occurred and therefore it was not possible to rescind Mr AA's CDO and make a supervision order.
In terms of Mr AA's future management, it is clear that investigations as to suitable accommodation must continue. Mr AA's frustration about his continuing detention because of the lack of a suitable community placement is understandable. His counsel described it as 'warehousing' a mentally ill and intellectually disabled man in prison because of the lack of appropriate facilities in the community. That may be an apt description of what has occurred to Mr AA because of the lack of appropriate community facilities, but that is the result which is dictated by the Act. Further, it must be remembered that it is Mr AA's risk of further serious sexual offending which has resulted in his continuing detention under the CDO; not his mental illness and intellectual disability, taken by themselves.
If a position becomes available or becomes a realistic possibility in a psychiatric hostel, Mr AA's counsel should be advised immediately so that, if appropriate, he can make representations to the hostel on his client's behalf, and, if the position is ultimately offered, Mr AA may make an application under the Act s 30(1) for his CDO to be reviewed.

Conclusion

Accordingly, I expressly declined to rescind Mr AA's CDO.