Director of Public Prosecutions (WA) v Allen
[2009] WASC 360
•4 DECEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- ALLEN [2009] WASC 360
CORAM: HASLUCK J
HEARD: 5, 6 & 7 OCTOBER 2009
DELIVERED : 4 DECEMBER 2009
FILE NO/S: MCS 38 of 2009
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
HENRY ALLEN
Respondent
Catchwords:
Criminal law and procedure - Application by DPP for a continuing detention order pursuant to the Dangerous Sexual Offenders Act 2006 (WA) - Structure and availability of options for management of sex offenders in custody and in the community - Evaluation of expert psychiatric evidence concerning risk of re-offending - Availability of treatment resources in remote areas for indigenous offenders - Finding that respondent is a serious danger to the community - Conditional supervision order made with a view to ensuring adequate protection of the community
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 8, s 14, s 17(1)
Result:
Supervision order made
Category: B
Representation:
Counsel:
Applicant: Mr A L Troy
Respondent: Mr P F Tehan QC
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Aboriginal Legal Service (WA)
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 176 A Crim R 110
Italiano v State of Western Australia [2009] WASCA 116
TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 166 A Crim R 69
HASLUCK J: The Director of Public Prosecutions (WA) (DPP) has applied for orders pursuant to provisions of the Dangerous Sexual Offenders Act 2006 (WA) in respect of the respondent, Henry Allen.
The application was made on 24 June 2009 at which time the respondent was in custody as a result of the convictions I will refer to in more detail later. It appears from the application form that in the manner allowed for by s 8 of the Act the DPP applies for orders under s 14 and s 17(1) of the Act in relation to the respondent. I will turn to these provisions shortly.
On 15 July 2009, prior to expiry of the current sentences, an application was brought before Murray J for preliminary orders pursuant to s 14 of the Act.
The effect of that provision is that if the court is satisfied at a preliminary hearing that there are reasonable grounds for believing that the court might find that the offender is a serious danger to the community, the court must fix a date for the hearing of the application for a div 2 order. If so satisfied, the court must order that the offender undergo examinations by two psychiatrists named by the court for the purposes of preparing the reports required by s 37 of the Act that are to be used on the hearing of the application.
At the preliminary hearing before Murray J on 15 July 2009 orders were made as follows:
1.Application granted.
2.The application for a Division 2 order pursuant to section 17(1) of the Dangerous Sexual Offenders Act 2006 be heard on Monday and Tuesday, 5 and 6 October 2009.
3.Henry ALLEN undergo examination by 2 psychiatrists, namely Dr Gosia Wojnarowska and Dr Brian Tanney, for the purposes of preparing the reports as required by section 37 of the Dangerous Sexual Offenders Act 2006 that are to be used on the hearing of the Application for the Division 2 order.
4.The reports of the two psychiatrists be provided to the Court on or before 14 September 2009.
5.The two psychiatrists liaise with the Department of Corrective Services as to a management plan (if appropriate) for Henry ALLEN to be supervised in the community.
6.Pursuant to section 122 of the Criminal Investigation Act 2006, the two psychiatrists may be supplied with and may view any audiovisual recordings of interviews with Henry ALLEN, or transcripts of the same, for the purposes of preparing the reports.
7.Henry ALLEN's current anticipated release date being 18 October 2009, the question of whether Henry ALLEN ought be detained in custody until the application for a Division 2 Order is heard and determined, pursuant to section 14(2)(b) of the Dangerous Sexual Offenders Act 2006, be adjourned sine die.
8.There be liberty to the parties to apply generally.
In due course the psychiatrists named in the preliminary orders provided reports and arrangements were made for the matter to be heard before me commencing Monday, 5 October 2009.
I will come to the details of the reports prepared by the psychiatrists in due course. For the time being, it is sufficient to note that these reports were included within a book of materials in two volumes dated 24 September 2009 that was received in evidence as exhibit 1. The book of materials included details of the various offences committed by the respondent, statements of material facts, depositions by witnesses, transcripts of video interviews, sentencing remarks and various reports.
The evidence in the exhibit 1 book of materials was supplemented by exhibits A to E comprising various reports and documents relating to the respondent. In addition, a number of witnesses gave evidence at the hearing before me including Dr Wojnarowska and Dr Tanney. At the conclusion of the hearing an order was made pursuant to s 14(2)(b) for the respondent to be detained in custody for a further period pending the handing down of these reasons for decision.
Before turning to the evidence it will be useful to look at the statutory provisions and legal principles bearing upon an application of this kind.
Statutory provisions and principles
Section 17(1) of the Act provides that if the court hearing an application finds that the offender is a serious danger to the community the court may order that the offender be detained in custody for an indefinite term for control, care, or treatment; or order that at all times during the period stated in the order, when the offender is not in custody, he be subject to conditions that the court considers appropriate and states in the order.
By s 17(2) in deciding whether to make orders of this kind, the paramount consideration is to be the need to ensure adequate protection of the community.
It emerges, then, that before making an order the court must find that the offender is a serious danger to the community.
Section 7(1) of the Act requires that before finding that a person is a serious danger to the community the court must be satisfied that there is an unacceptable risk that if not subject to a continuing detention order or supervision order, he would commit a serious sexual offence. The term 'serious sexual offence' has the same meaning as in the Evidence Act 1906 (WA) and encompasses offences of that description which carry a maximum penalty of 7 years' imprisonment or more.
By s 7(3), the court must have regard to certain prescribed matters in deciding whether to find that a person is a serious danger to the community. I will turn to these matters later.
In Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 176 A Crim R 110 Wheeler JA observed at [63] that:
[A]n 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.
In a later case Italiano v State of Western Australia [2009] WASCA 116 Pullin JA observed at [4] that a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact. In the same case, Buss JA observed at [46] that the word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard to, amongst other things, the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order), on the other, if an order is made.
It therefore appears that I must undertake a balancing exercise which has regard to the gravity of the risk and the serious consequences for the offender if an order is made.
Section 7(2) provides that the applicant has the onus of satisfying the court of all matters referred to in s 7(1) by acceptable and cogent evidence, and to a high degree of probability. It has been said that these words are incapable of further definition and import more than a finding on the balance of probabilities, but less than a finding of proof beyond reasonable doubt. The constituents of the risk and the factors that make the risk unacceptable must be identified. Consideration must then be given to whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence.
It is apparent from the statutory provisions that in deciding whether the respondent is a serious danger to the community the particular matters listed in s 7(3) must be considered. Those matters include the reports prepared by the court appointed psychiatrists which contain the assessments of risk required by s 37(2).
It is for the judge dealing with the matter to determine what weight should be given to each of the assessments. Ordinarily, they should be given significant weight because the psychiatrists have expertise which the judicial officer does not and which Parliament considered to be important. However, as appears from Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 at [57], if the reasons for either psychiatric assessment cannot withstand scrutiny, or if the assessment is based upon mistaken factual assumptions, the presiding judge is free to give it little weight. In that regard, I take account also of the observations referred to by Callaway AP in TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 166 A Crim R 69, being comments approved by the majority in GTR. In the end, it is the responsibility of the presiding judge alone to determine whether the respondent is a serious danger to the community, and if so, which form of order should be made.
It appears from the reasoning in Williams that if the court does find that the respondent is a serious danger to the community, there is no discretion to refuse to make an order. In determining which of a continuing detention order or a supervision order is appropriate, the court should adopt the least restrictive alternative which is compatible with protection of the public.
As indicated in earlier discussion, the effect of s 17(2) of the Act is that in determining whether to make a continuing detention order or a supervision order the paramount consideration is the need to ensure the adequate protection of the community.
Let me now turn to the details of the respondent's sexual offending. These details are evidenced essentially by the various records and related documents forming part of the exhibit 1 book of materials.
The respondent's court history
The respondent's first conviction was an adult is recorded as 1 December 1977. However, the sexual offences relied upon by the DPP for present purposes commence with sexual misconduct by the respondent in the latter half of 1993.
The first two offences occurred on 26 August 1993. The 18‑year‑old victim was not known to the respondent. He pulled a female victim into some scrubland, punched her to the stomach, choked her and then penetrated her vagina with his penis to the point of ejaculation.
I understand that the respondent was charged for two offences arising out of these events, being sexual penetration without consent occasioning bodily harm and deprivation of liberty, but was released on bail.
Two months later, on 16 October 1993, at the Kimberley Hotel in Halls Creek, the respondent followed a female aged 20 to the ladies toilets. He grabbed her around the throat with both hands and penetrated her vagina with his penis. He was again charged with sexual penetration without consent occasioning bodily harm and deprivation of liberty.
Both victims gave evidence at a committal hearing on 24 January 1994. It seems that the respondent pleaded guilty on the first appearance in the District Court and convictions were recorded on 2 May 1994 at the District Court sitting at Broome in respect of the two offences of sexual penetration without consent and two offences of deprivation of liberty. The respondent was sentenced to an effective aggregate term of imprisonment of 6 years.
I understand that the respondent was released to work release on 8 September 1995. However, that order was cancelled on 8 December 1995. He was then released to parole on 3 February 1997.
On 25 October 1997, slightly more than eight months after being released to parole, the respondent committed offences of assault occasioning bodily harm and deprivation of liberty. These offences also occurred at the Kimberley Hotel in Halls Creek. The complainant was 23 years of age and was unknown to the respondent. She declined his invitation to share some of a carton of beer. This led to the respondent dragging her along a footpath, removing her clothes, punching her, pulling her hair, opening her top, lowering his trousers and indicating that he proposed to rape her. Before any sexual misconduct occurred security staff attended and apprehended the respondent who was then arrested by police.
The matter proceeded to a committal hearing on 27 May 1998. The learned magistrate found there was insufficient evidence to find a prima facie case in relation to the attempted sexual penetration allegation but the other two counts were committed. On 10 August 1998 in the District Court at Kununurra, his Honour Judge Muller sentenced the respondent to a total period of imprisonment of 3 years 2 months. His Honour characterised the subject events as an arrogant and frightening assault upon a woman who was a complete stranger to the respondent and who had been selected as a target for the respondent's sexual offences. His Honour declined to make the respondent eligible for parole.
On 14 August 2003 the respondent was involved in events that gave rise to an offence of attempted sexual penetration. The victim in that case was a 25‑year‑old tourist from the United Kingdom, not known to the respondent. She was drinking at a nightclub in Broome and was making her way back at night to her vehicle.
In the car park of the Roebuck Bay Hotel the victim was wrestled to the ground and felt that she was being choked with two hands to her neck. She said to her attacker: 'What do you want?' The respondent replied: 'I want a fuck'. He undid his trousers so as to expose his penis and unzipped the victim's jeans. She was able to get away from her assailant. The respondent was arrested some two hours later. The victim sustained a number of injuries. It seems that the respondent was released to bail.
On 28 July 2004 the respondent was involved in further misconduct. Following an evening at a bar in Broome, a 22‑year‑old female who was not known to the respondent was sitting outside a petrol station with some friends when she was approached by the respondent. He asked her for some money which she gave to him. She then walked back to the Roebuck Caravan Park on her own when she was accosted again by the respondent.
After walking with the victim for some time, the respondent threw her to the ground and placed both hands on her neck and started to choke her so that she could not breath. The victim thought she was going to die. She was able to escape and ran off and was able to speak to a taxi driver. Her handbag was stolen in the course of the robbery. The respondent was arrested and interviewed that day.
The matter came before her Honour Judge Yeats of the District Court on 2 March 2005. It is clear from her sentencing remarks that the respondent entered pleas of guilty to the matters before the court. Her Honour concluded that the respondent, when affected by alcohol, is a sexual predator.
For an offence of attempted sexual penetration without consent the respondent was sentenced by her Honour Judge Yeats to a term of 3 years 4 months' imprisonment and for an offence of robbery with violence to a term of 2 years' imprisonment cumulative. This gave rise to an effective aggregate term of imprisonment of 5 years 4 months which was backdated to commence from 19 June 2004, being the most recent term of sentenced imprisonment.
As I indicated in earlier discussion, the current anticipated release date in respect of this term was 18 October 2009. The respondent was in custody in respect of this term when the application for preliminary orders mentioned earlier was brought before Murray J on 15 July 2009.
The Yeats sentencing remarks
In the course of her sentencing remarks on 2 March 2005 her Honour Judge Yeats made these observations:
The offender has been in custody for such a long term for a variety of different periods that any sentence I impose must be backdated to 19 June 2004. The offender comes before the court as a traditional Aboriginal man. He is now 45 years of age but I accept what is said on his behalf by his counsel, and that is that within the life cycle of Aboriginal people he is moving into the class of elderly compared to what the age of 45 may be within the wider community. He is not a middle‑aged man.
Her Honour proceeded to review a number of reports and made these further observations:
Dr Watts found no clinical evidence of formal psychiatric or psychological disturbance. Although he said there was some degree of clinical evidence that there is underlying cognitive impairment, it seems in the case of this offender to be defused, mild cognitive dysfunction, the result of years of substance abuse, including sniffing when he was younger solvents and now 30 years of alcohol abuse. It is not the result of any specific head injury, although I accept that in 2004 the offender did suffer a severe head injury at the time of his wife's death.
While dealing with the reports her Honour also said this:
I have also had a psychiatric report dated 19 February 2005 from Dr Blumberg. The offender does not suffer from a major mental illness but his problems arise from his extensive history of alcohol abuse and his antisocial personality traits. I consider very much in mitigation first of all the offender's pleas of guilty and these were valuable pleas of guilty in the case of both complainants not required to undergo the trauma of trial and for the state not to have to undergone the expense of the trial in bringing those people back.
After reviewing some additional materials she proceeded to make some remarks by way of overview as follows:
I do believe that this man when affected by alcohol is a sexual predator and his repeated offending shows this. I also accept that the court has a duty to protect the community from this sort of offending so that - particularly when I'm looking at the sentences deterrence has to be my prime concern. When I look at the question of parole, however, I do accept that I am effectively sentencing an older man although he is only 45 years of age.
I accept what was put to me by Ms Gibbs that we have not reached a point of no hope and I have seen that there has been an improvement over the last eight months. I am also very concerned about releasing him directly into the community without any supervision. The cognitive functioning report has given some hope that he could have effective sex offender treatment. I know he has had that in the past and it hasn't worked but the report encourages me that it's not a lost cause.
It was against that background that she proceeded to impose the total term of imprisonment mentioned earlier, being 5 years and 4 months backdated to commence on 19 June 2004. She was prepared to order eligibility for parole.
Subsequent events
It appears from a review report dated 29 June 2009 (at pages 519 to 522 of exhibit 1) that on 3 November 2008 the respondent was considered for release to parole. However, this was denied by the Prisoners Review Board because of various factors, namely, the respondent did not complete the sex offender treatment programme (SOTP), he was considered to be at high risk of re‑offending due to his history of sexual offending, his poor past performance on parole, he was considered to be a continuing risk to female members of the community, and there was unaddressed offending behaviour.
On 24 November 2008 the Prisoners Review Board granted the respondent's request for further consideration for early release in which he was to be reviewed on 14 July 2009 to allow him to complete the Indigenous Men Managing Anger and Substance Use (IMMASU) course.
He was interviewed at Roebourne Regional Prison on 9 June 2009 for the purpose of a further review. The report concluded by noting that his release to parole was not supported as he was considered to be a considerable risk to the community given his previous sexual offending and his position was being considered under the Dangerous Sexual Offenders legislation.
It will now be useful to look at the respondent's background in more detail.
The respondent's background
The evidentiary materials are not entirely consistent as to the respondent's background. However, I understand that he was born in 1959 at Louisa Downs, between Fitzroy Crossing and Halls Creek. His family lived and worked on a cattle station. He has a younger brother and sister and has spent most of his life living in communities in and around the Fitzroy Crossing, Halls Creek and Broome areas.
It is said that the respondent attended school until he was 15 years of age, but he always had significant problems with literacy and numeracy. He has said that he was educated by the indigenous elders in his community. He reported that as a young boy his family moved to a cattle station where his father gained employment. The respondent is said to have had a close relationship with his father and that he enjoyed life on the cattle station. He claimed that he went straight from school to work as a stock controller in Halls Creek and was there for a few years. The reports point to a lack of regular employment thereafter.
The respondent's substance use began during his teenage years. He is said to have had one significant relationship, resulting in marriage in the early 1980s. He stated that this relationship lasted 'a few years'. There are said to have been some children from that relationship and from another relationship that was commenced later. It seems that the latter relationship ended as a result of domestic violence. He has been a single man for a significant period and has limited contact with his children.
The respondent claimed that he was healthy until July 2004 when he was involved in a physical altercation resulting in him being hospitalised for several weeks. He says that this has affected his 'head'. The respondent's brother has substantiated this claim but without being able to express exactly how the respondent has changed since the incident. The respondent has acknowledged having a significant drinking problem.
A consideration of the respondent's background brings me to a report dated 9 September 2009 prepared by Sarah Helen Ballantyne who gave evidence at the hearing before me.
The Ballantyne evidence
Ms Ballantyne said in evidence that she is currently employed as a member of the Dangerous Sexual Offenders Psychology Team for the Department of Corrective Services. She said that the purpose of her report dated 9 September 2009 was to provide an overview of any relevant rehabilitation programmes or interventions that the respondent had engaged in during current or prior sentences. In the event of an order being made pursuant to the Act a more comprehensive assessment of his individual needs would be made in close collaboration with an appropriate cultural consultant.
It appears from the Ballantyne report that the respondent has been engaged in a variety of treatment programmes during his various periods in custody. In 1995 he participated in a pre‑release sex offender treatment programme at Greenough Regional Prison but limited information is available as to his participation and overall assessed treatment gains at the conclusion of the programme. He completed a 20 hour cognitive behavioural anger management programme known as the Skills Training for Aggression Control programme in 1998 and 1999 but treatment completion reports are unavailable for these interventions.
In 1999 he participated in a 10 hour programme designed to address addictions and offending known as the Exploring Change programme. In 2005 he participated in a four hour psycho‑educational session aimed to motivate remand and short term prisoners to alter their drug and alcohol abuse.
The report indicates that in 2007 the respondent participated in a 50 hour programme focusing on the use of alcohol and violence in offences committed by indigenous men known as the Indigenous Men's Managing Anger and Substance Use programme (IMMASU). Although noted to be a quiet group member, the respondent received a positive treatment completion report suggesting he had expressed genuine motivation to alter his alcohol use and offending behaviour.
In 2008 the respondent participated in a course of six months duration (operating for six hours per day, three days per week) known as the Intensive Sex Offender Treatment Programme (ISOTP). This has significant 'homework' requirements for participant completion in their own time.
It is said in the Ballantyne report that the respondent commenced the ISOTP at Casuarina Prison but was removed from the Sex Offender Programme (SOP) unit after he verbally threatened an officer. The ISOTP is a residential programme at Casuarina Prison, meaning that the respondent's inability to remain on the unit resulted in his early removal from the programme itself. I note in passing that the removal arose out of the so‑called 'shower incident' when the respondent allegedly infringed certain rules concerning the times at which showers could be taken.
Ms Ballantyne observed in her report that the respondent's removal from, and therefore failure to complete the ISOTP may have implications for his risk of offence. It was said further that the respondent has not engaged in treatment of sufficient intensity to meet his assessed high risk and need during current or past terms of imprisonment. At the current time he is considered to have numerous outstanding treatment needs requiring intervention in order to attempt any reduction or management of his risk of future re‑offending to any extent.
The Ballantyne report suggests that the primary intervention needs for the respondent concern questionable motivation to engage in treatment, possible learning difficulties and cognitive impairment related to abuse of substances and prior head trauma, specifically substance use problems in that his sexual offending appears to have been committed while under the influence of alcohol, difficulty with regulation of anger and attitudes indicative of hostility towards women.
It was said further that the intervention options that are provided to the respondent will be dependent upon the order that the court imposes in that intervention services differ between community and custodial settings. If the respondent were placed on a detention order the DSO psychology team would further assess his current intervention needs. Given his cultural background as a traditional Aboriginal man raised predominantly in the Kimberley region, he may be considered for inclusion in the revised Indigenous Sex Offender Treatment Programme, being a 100 hour medium intensity programme designed for indigenous male sexual offenders.
The Ballantyne report indicates that another option is the ISOPT, which is of six months duration and operates for six hours per day, three days per week. This is considered the most appropriate treatment option for the respondent on the basis of his assessment as a high risk of sexual re‑offending in the future and having high assessed needs for treatment. The nature of these programmes is described in more detail in the report.
As to a supervision order, the report indicates that individual intervention options may be available to the respondent in the community. However, the paucity of resources in the northern part of Western Australia, where it is understood the respondent proposed to reside, have resulted in a failure to locate a suitably qualified treating professional who might provide culturally appropriate sex offence specific interventions to the respondent at the present time.
Ms Ballantyne observed that rigorous community supervision and sex offender specific treatment are universally accepted as prerequisites for responsible management of high risk sex offenders. In the respondent's case, the support and acceptance of appropriate Aboriginal community members and elders will be imperative to assist him with reintegration and to adopt more pro‑social behaviours in the future.
The Ballantyne report concludes with the observation that the respondent's traditional background as an indigenous man from the Kimberley region is acknowledged as an important consideration regarding the most appropriate intervention available to him. His assessed high risk of future sexual re‑offending, and significant outstanding treatment needs mean the intervention deemed most appropriate remains an intensive sex offender programme, being a programme only available in the custodial setting at present.
Cross‑examination of Sarah Ballantyne
Under cross‑examination, it was put to Ms Ballantyne that there had been no comprehensive assessment conducted of the respondent in the last 12 months prior to the hearing. This appeared to be the effect of a passage in the evidentiary material (page 500 of exhibit 1) that due to his early departure from the ISOTP the respondent was not afforded the opportunity to develop a relapse prevention plan. Ms Ballantyne replied by saying that since his removal from the programme in April 2008 she was unaware of any further inclusion in programmes as he was known to be viewed as a possible dangerous sexual offender. She said that the relapse prevention plan is a specific activity that occurs towards the end of the programme. This meant that it could not be proceeded with in his case because he was unable to complete the programme. To the best of her knowledge he was not afforded any opportunity to develop any substitute or alternative relapse prevention plan in the 14 months that followed between April 2008 and the hearing in October 2009.
The cross‑examiner took the witness to a passage on the final page of the Sex Offender Treatment Non‑Completion Report containing a recommendation that he complete an IMMASU prior to his release. She was not sure whether he was given the opportunity to complete that programme but, after being pressed, agreed that he had successfully completed it on a prior occasion.
The witness agreed that she had not been called to give a clinical psychological assessment in relation to the respondent's risk of sexual recidivism. In other words, she had been called as a witness to comment on the treatment options that would be made available to him. She agreed that she had never met the respondent or interviewed him. She was drawing principally upon documentary materials in describing his treatment history.
She was then challenged about the observation in her report that in relation to the 1995 treatment there was limited information regarding the respondent's participation and overall assessed treatment. She agreed that she may not have seen the full range of documentation and that certain of the treatment reports she had not seen could be favourable to him. She agreed that there was a degree of ambiguity as to the structure and availability of the Indigenous Sex Offender Treatment Programme which was still under development and it would be questionable whether the respondent would be accepted into it. Her understanding was that the programmes at Casuarina and Bunbury, which were due to operate between April and June, were fully booked.
She was then questioned about the Harris report (which I shall deal with at greater length in a moment) and the suggestion in that report that at Halls Creek there was a qualified counsellor who was trained to provide counselling for sex offenders. Ms Ballantyne said in effect that she was unable to comment fully upon that because her own report was based on the treatment options provided by the department. She agreed that minds differ as to the provision of treatment being a tool with which to evaluate the risk of sexual recidivism. However, she said that 'on the basis of the data that we have, the outcomes are more positive' (ts 245).
Let me now turn to the Harris evidence.
The evidence of Shirley Ruby Harris
Shirley Ruby Harris gave evidence on the final day of the hearing (that is, after the court appointed experts had given evidence). She said that she had prepared an assessment report dated 23 September 2009 (at pages 583 to 590 of exhibit 1) in her capacity as Acting Senior Community Corrections Officer, Halls Creek Community and Youth Justice.
I note in passing that there are two other signatories to the report. These signatories were identified by Ms Harris in the course of her evidence as being her line supervisor and the manager of the Community Youth Justice Services at Broome. These more senior officers had endorsed the report but essentially the report was the work of Ms Harris herself.
The witness noted at the commencement of her report that two individual psychiatric reports were requested to address community supervision issues and a community supervision placement assessment report was requested to be completed by a community corrections officer at Halls Creek Community and Youth Justice, being the report now under consideration.
The witness noted at an early stage in her report that proposals by the respondent to reside at certain locations in the north upon release had been investigated but were not workable. It was then suggested that the respondent follow up a proposal to reside at a remote Aboriginal community located approximately 120 kilometres from Halls Creek (the 'proposed community').
The respondent's proposal was that he was born at Louisa Downs in the vicinity of the proposed community. He has many family members living in the region. He would reside with his 'brother' L who is a member of the proposed community..
As at the date of preparing her report Ms Harris had not been able to obtain an indication from the chairperson of the proposed community, as to whether the respondent's proposal was approved or not approved. The Harris report indicates that the proposed community is a small community of about 50 people, being one of three communities in close proximity making use of facilities at a larger community. The latter has an art gallery with high standards of indigenous artwork attracting tourists there on a regular basis. The community is alcohol and drug free, although liquor can be obtained in Halls Creek.
It is said in the Harris report that local agencies, which include the Kimberley Community Drug Service team and Mental Health Services, conduct field trips to the larger community near the proposed community on a six weekly cycle to provide appropriate counselling in relation to alcohol abuse and anger management issues.
Ms Harris established by enquiries from a police officer from the Sex Offender Management Squad at Halls Creek Police Station that if the respondent was made subject to an order under the Act, an initial assessment would be conducted and he would then be monitored according to the assessment needs and risks.
Further, the CEO at Jungarni‑Jutiya Alcohol Action Council (JJAAC) in Halls Creek advised that Ms Tauranga is a qualified counsellor who is trained to provide counselling for sex offenders. This service is available Monday to Friday during office hours. Should the respondent attend this service of counselling, it is anticipated that community members from the proposed or the larger community nearby could assist the respondent with transport. Yura Yungi Aboriginal Medical Service in Halls Creek facilitates a Men's Business group each Wednesday night with the attendees being the local male doctors, male health workers and male clients. This programme assists clients to deal with issues associated with men's health, addressing excessive alcohol consumption, managing anger and improving relationships.
It is said in the Harris report that tourists visiting Halls Creek also visit the local Aboriginal communities in the surrounding area which includes the larger community close to the proposed community.
The witness referred to interviews with the respondent by video linkup and later face‑to‑face at Casuarina Prison. She expressed some reservations about his coping skills. However, she noted that he would actively engage in artwork upon his release into the proposed community. He was receiving the disability pension prior to his incarceration and it was anticipated he would contact Centrelink to reapply for the disability pension.
The Harris report contains a description of proposed supervision order conditions including not only standard conditions required by the Act such as the obligation to report to and be under the supervision of a community corrections officer but also some additional conditions which 'are suggested to strengthen and add to the above standard conditions required by the Act for the more effective management of Mr Allen should he be released in the community'. These conditions deal with residence, specific obligations to report to and be under the supervision of the CCO, obligations to attend at programmes or receive treatment, obligations to report to the Halls Creek Police Station and undertakings not to commit any sexual offence or to be in possession of or use prohibited substances.
It seems that the respondent indicated to Ms Harris his intentions of participating in community based counselling to assist him to adopt and maintain a law‑abiding lifestyle. However, the witness noted that the court appointed psychiatrists were of a view similar to herself that the respondent was incapable of following through independently on his proposed community placement plan. She supplemented the contents of her report by referring to a visit to the proposed community and the larger community nearby made by a colleague.
Cross‑examination of Ms Harris
Counsel for the respondent commenced his cross‑examination of Ms Harris by handing to her a letter that had just been received from the chairperson of the community at the proposed community. The letter dated 7 October 2009 (Exhibit B) reads in part as follows:
I have been the Chairperson for approximately 5 years. I have known Henry Allen for all of his life. I was working as a stockman on the station Henry was born.
I am aware of the matter that Henry has before the Court and know that his situation is very serious.
I am prepared to have Henry live with me at [the proposed community]. Our community is 160 kms from Halls Creek and it is a dry community. We do not have any problems with alcohol being brought on the community.
The only condition I place on Henry staying with me and at [the proposed community] is that he must do as I say - I will have a 'hard talk with Henry when he arrives' and he will be asked to leave if he does not do as I say.
Henry is able to work on the community doing cleaning, fencing and attend the art and craft centre.
I am aware that Henry will need to be available for appointments and I am happy to support him in attending these appointments wherever and whenever they are arranged.
This letter has been prepared by Katrina Lane (Paralegal) of the Aboriginal Legal Service on my behalf.
Ms Harris confirmed that in her understanding the proposed community was a small dry community of about 50 people, being men, women and children. There was another community in the vicinity of about the same size which was also a dry community. There was also the larger community nearby which was about five or six minutes walking distance away from the proposed community. There was an art gallery at the larger community. Ms Harris had seen artwork there and in‑house artists sitting and doing their painting as part of a viable commercial operation visited by tourists. There were other facilities at the larger community such as a primary school and a community shop. There was also an office for Community Enterprise Services which dealt with employment training.
The witness said that in Halls Creek there were reduced alcohol liquor bans. However, it was still possible to obtain other alcoholic beverages. Much the same situation applied at Fitzroy Crossing. She had attended court on behalf of the Department of Corrective Services and was aware that community members had been charged with breaching the bylaws of the communities by conveying and consuming full strength beer.
She agreed that ultimately the question of alcohol usage came down to a commitment on the part of the person involved, in this case the respondent. Her understanding was that a community such as the one at the proposed community had the power to exclude a person from the community if they breached rules concerning the bringing of liquor into the community. The matter under discussion was a potential problem in all communities. She, herself, had not seen indications of infringements at the proposed community.
The witness was asked whether some difficulty in getting to the stage of a potentially workable management plan might have contributed to a level of frustration experienced by the respondent which manifested itself in his interviews with the respondent. However, in her view, she did not think he had become frustrated because of that. If the respondent were released as proposed, she would want to see the strict reporting and counselling provisions in place. She observed that the clinical psychologist in Halls Creek, Ms Tauranga, had a lot of work on her plate at the moment but planning was afoot to obtain further support.
The witness agreed under cross‑examination that if a supervisory order was made it would be feasible, and a good idea, for the respondent to come into Halls Creek on a Wednesday on a regular basis and go to the counsellor, Ms Tauranga, in the afternoon and then move to the Health Service for an hour in the late afternoon. It could be done on a weekly basis. If a supervision order was made she would be the person to work out the details to suit the requirements of the respondent and the service provider. The issue of anger, including anger towards women, is a matter that would have to be dealt with. Her understanding was that the respondent would live with his brother at the proposed community. There were other relatives in the area. She envisaged that there would be a condition of the kind presently employed in parole cases that the respondent was not to leave the community without the permission of the CEO, being in this case, the Chairperson of the proposed community.
Let me now turn to the evidence of the court appointed expert witnesses.
The evidence of Dr Wojnarowska
The book of evidentiary materials received in evidence as Exhibit 1 included the psychiatric report of Dr Gosia Wojnarowska dated 13 September 2009. The author of the report was called as a witness by the DPP and gave evidence at the hearing before me in the course of which she was taken through various matters dealt with in her report and was then cross‑examined. For present purposes it will be sufficient to deal with her evidence in summary form.
Dr Wojnarowska is a fully registered medical practitioner registered with the Medical Board in Western Australia and has developed an expertise in forensic psychiatry. She is presently Chair of the WA Branch of the Royal Australian College of Psychiatrists. She has been involved in the assessment of dangerous sexual offenders since June 2007.
She said in her report that she had interviewed the respondent in Casuarina Prison on two occasions, being a three hour interview at Casuarina Prison on 22 August 2009 and a further interview of two hours on 5 September 2009. She had access to a considerable body of reports and other written materials concerning the respondent including details of his court history and various offences. She had also conversed by phone with Ms Ballantyne, who gave evidence on behalf of the applicant also, and with Ms Harris, a community justice officer at Halls Creek who was one of the co‑authors of an assessment report dated 23 September 2009 concerning proposed supervision order conditions in respect of the respondent. The witness was given an opportunity at the hearing to study the Harris assessment report and was then cross‑examined about certain aspects of it.
Dr Wojnarowska's report opened with a description of the respondent's court history and cycle of offending. She noted that the respondent committed his first two sexual offences in 1993, being over 30 years of age at that time. The cycle of offending indicated that the victims were randomly selected and the offences were opportunistic in nature with all sexual offences being committed against strangers. On three out of four occasions the victims were under the influence of alcohol and appeared vulnerable, being for the most part in unfamiliar surroundings. All the sexual offences were accompanied by violence. However, it was difficult to determine whether the respondent derived a sense of pleasure from the violence or was simply driven by his anger and his overall lack of concern about another human being. In other words, the witness was not convinced that the accompanying violence was of a truly sadistic nature. It seems that alcohol was nearly always indicated in the cycle of offending. His lack of empathy for his victims confirmed a deeply engrained anti‑social attitude and profound self‑centredness.
The witness noted that the respondent was currently single and had no contact with his children or grandchildren but was close to his siblings, being the eldest of three children. He grew up in the communities in and around Fitzroy Crossing and Halls Creek, went to a local primary school and also received education through the elders in the community. He was later sent to Darwin to complete his formal education and proceeded to Year 11. After his father's death in the late or mid 1970s, the respondent returned to the cattle station where his father had worked to live with his mother. At that time he married and had two children as he continued to work as a stockman. The marriage was volatile with the respondent's first assault charges being against his wife. He left his wife for another woman and in due course married for a second time. This marriage lasted until his wife died in the early 1990s by which time the respondent was spending more time in the Broome area where his siblings had been living. The witness observed that marriage was possibly a protective factor in the respondent's sexual offending as his first rape charge was not until 1993.
In dealing with the respondent's emotional and behavioural regulation the witness referred to various difficulties indicative of anti‑social attitudes. However, as to his psychiatric history there was no evidence of any past or present treatable major mental illness such as psychosis or depression. He is not currently on medication but has a history of head trauma, having been struck as part of a tribal punishment. This resulted in the loss of his right eye. The witness referred also to his heavy drinking and the fact that he had never attempted to stop drinking, despite being aware of the consequences. He was abstinent in the community over several months on one occasion and under a court order he was directed to live in a dry community.
The witness described the respondent's participation in the Sex Offender Treatment Programme or SOTP. In 1998 he completed 24 two hour sessions at the Greenough Regional Prison. In 2000 he agreed to participate in the programme but there was insufficient time for him to engage prior to release. In 2008 he completed 51 sessions but was then removed from the programme following an incident where he allegedly threatened an officer. As a consequence of being removed from the unit he was unable to continue the programme. It was said in a report dated 26 March 2008 that he met few programme objectives, made minimal treatment gains and was observed to gain limited understanding of the factors underlying his offending. It was noted that he was not able to develop a relapse prevention plan due to the fact that he had not completed the programme.
As to other programmes, in 1998/1999 he completed a Skills Training for Aggression Control Programme, known as the STAC programme. In 1999 he completed an Exploring Change programme and in 2005 a 'Brief Intervention' aimed at educating remand and short term prisoners to change their drug and alcohol use. In 2005 he was assessed for a cognitive skills programme but declined to participate on the basis that he would participate in programmes only at the Northern Regional Treatment Facility and that he was not interested in participating in treatment interventions other than offence specific programmes.
In 2007 the respondent completed the Indigenous Men Managing Anger and Substance Abuse or MMASU programme which is of 50 hours duration and extends over three weeks. The outcome of the assessment appeared to be more positive compared to the previous ones. He expressed a genuine desire to change his lifestyle by refraining from consuming alcohol to excess in the future.
The witness observed, having regard to the respondent's programme participation and collateral history detailed in various reports, that his progress was perceived as unsatisfactory. The treatment gains, if any, after completion of his first SOTP in 1998 appeared to have been lost. It was said that his self‑management skills had not improved having regard to certain incidents in prison. It was said that his sexual interests had never been clarified and therefore were never addressed. It was said that his cognitive function has deteriorated according to SOTP facilitators compared to his previous function as assessed by Dr Watt in 2004.
In her report the witness reviewed the respondent's mental state and psychiatric condition. She observed that he met the criteria for alcohol dependence and fulfils the criteria for anti‑social personality disorder. The witness observed that the respondent had not been charged with rape until he was 34 years old (in 1993) at which time his second wife had passed away. This supported the author's opinion that his offending could be seen as opportunistic, partially driven by his inability to find a partner. She noted that sexual violence risk assessment is the process of evaluating people to characterise the risks that they will commit sexual violence in the future, as well as the steps that could be taken to minimise these risks. She noted that the instruments used in such an assessment could be divided into two principal categories being actuarial instruments and structural clinical guides. The former use mainly static risk factors in that scores obtained on individuals can be related to statistical reference data. A statistical profile is created of the person that may be compared to known groups of recidivists and non‑recidivistic sexual offenders. The actuarial instrument used in the assessment was STATIC 99 and the PCL‑R instrument which assess the extent to which an individual's personality structure conforms to the clinical construct of psychopathy.
Structural clinical guides use both static and dynamic risk factors. They require clinicians to consider different factors which impact upon the assessment of risk. She referred to the Risk for Sexual Violence Protocol or RSVP instrument. This is similar to previous guidelines such as SVR‑20 (Sexual Violence Risk) in many respects but also incorporates new features that increase the utility in risk management and forensic decision making. These new features include specification of procedures for obtaining assessment information, expanded consideration of risk factors relating to manageability, separate coding of judgements concerning the presence and relevance of risk factors and incorporation of scenario based risk assessment methods.
The witness acknowledged that assessment of indigenous offenders is a significant issue as instruments that had been used in Australian contacts were developed in other countries and cultures. The validity of the instruments in relation to indigenous populations has been continuously questioned. Nonetheless, the witness noted that the respondent scored high on STATIC 99 and HCR‑20. His score on the PCL‑R was high and therefore he fitted the construct of a psychopath. She observed that as PCL‑R has been found to be among the best predictors of risk for re‑offending and risk for violence, applying just PCL‑R the respondent was again in the high risk category.
In reviewing the factors referable to the RSVP method she noted that relevant factors in the sexual violence history section included chronicity, escalation and physical coercion and physical violence. She noted that he did not suffer from treatable major mental illness. Although not officially diagnosed as sexually deviant, there was partial evidence that the respondent had a form of sexual deviance and had displayed major deficiencies with problems in intimate and non‑intimate relationships and non‑sexual criminality. As to manageability he had displayed problems with planning, with treatment and with supervision.
Towards the end of her report the witness dealt with risk scenarios and observed that the respondent was likely to sexually offend against any female who appeared vulnerable and was in his proximity, be it at home or in public places. His social and emotional deficits made him unlikely to succeed in securing an intimate and supportive relationship. The witness was not convinced that the respondent would not re‑offend if sober. His sexual offending was said to have been driven by his presumably high sexual drive and his extreme egocentricity, impulsivity (inability to delay gratification) and his lack of concern for others.
For these reasons, the respondent was said to be 'at high risk of reoffending if not subject to a continuing detention order'. It was recommended that he undergo further assessment in relation to his capacity for psychological treatment.
The witness then made these observations:
Secondly, further exploration in relation to the presence of sexual deviance is important. Those should be explored during further treatment, which ideally should be specific for indigenous population as Mr Allen has a history of responding better to culturally specific interventions such as IMMASU. The Indigenous Sexual Offender Treatment Programme has started in Greenough Prison earlier this year. This programme however is of medium intensity and Mr Allen may not be accepted to this programme for that reason. It is, however, the author's opinion that Mr Allen is more likely to engage with an indigenous specific programme and therefore he is more likely to benefit from medium‑intensity but culturally specific, than high‑intensity programme. Mr Allen's treatment needs are extensive and without addressing those in a Sex Offender Treatment Programme his risk of reoffending will be unacceptably high to be managed in the community.
Cross‑examination of Dr Wojnarowska
Under cross‑examination Dr Wojnarowska agreed that she interviewed the respondent after he had been denied parole and at a time when he knew the present application was to be made. These factors may have caused some frustration and made him angry. She agreed that as at March 2007 the report showed he had attended the relevant treatment programmes.
The witness acknowledged that as a consequence of the respondent breaking a prison rule in relation to showering he was moved to another unit which then meant he could not undertake or complete the sexual offenders treatment programme.
The witness said that the respondent seemed to be fed up with having to talk about the offences over and over again. As to her opinion that the respondent might offend while sober, she agreed that on most occasions he had offended while being drunk. There was no evidence of sexual deviance. She acknowledged that the frequency of his offending had not increased since his offending began after the age of 30. He did express a determination to give up alcohol.
The witness agreed that in most cases the respondent did plead guilty to charges brought against him and that could be taken as an acceptance of responsibility to some extent. She acknowledged that regret for what he had done could possibly be veiled by his sense of frustration in having to talk about the offences but she could not see a mood of regret in what he said.
When pressed, she accepted that there was no objective evidence to underpin the assertion made at page 21 of her report that 'his sexual offending has been driven by his presumably high sexual drive'. The word 'presumably' signalled that this was a speculative comment. She agreed also that her assertion at page 21 that the respondent was likely to offend sexually against any female who was in his proximity and appeared vulnerable was meant to refer to an adult female. She agreed that much of what she had said in her report and in evidence was based on an assessment that the respondent had poor social skills. The best scenario was for him to be placed in a supportive community including working and intimate relationships.
The witness was cross‑examined about the absence of treatment or remedial programmes since April 2008. She was unable to say exactly why this was so. She had accepted that he was involved in an altercation with other prisoners but this conclusion was not necessarily based upon firm evidence. The respondent had not conveyed to her a specific refusal to participate in treatment programmes. She agreed that some of the predictive tools had only a moderate degree of predictive accuracy as to re‑offending, especially in the case of an offender of Aboriginal descent. The STATIC 99 facility was based on historical facts and did not necessarily allow for changes in the individual. Moreover, it was directed at any sexual offender rather than serious sexual offending.
Dr Wojnarowska was cross‑examined about the Harris report which she had not previously seen. She agreed that in view of the Harris report she would now modify her statement that the environment he planned to live in would not be expected to be able to supervise him (ts 117). It was in the context of discussion about the Harris report that these exchanges occurred (ts 108):
Now, moving to where we left off, the risk management scale - would you be prepared to be - you've given high scores on each of plans lacking feasibility, high possibility of exposure to destabilisers, high probability of noncompliance and high probability of stress exposure. Would you be prepared to modify each of those?---I would. There is one entry, however, in this report that says that his accommodation has not been confirmed.
No, and don't worry, we're making contact with Mr [D] as the case is progressing, but if you just accept the assumption that the accommodation is available to him. Assuming that, would you be prepared to modify each of those particular factors?---I would.
To what level? You've given them a high ranking?---Yes, I do understand what you mean. Probably to low to moderate.
Low to moderate, yes. I suppose factors which would lead you to that are even though he's in a dry community there's the possibility that he could still travel into a community where there is alcohol - come into town?---And also there is no place where there is 100 per cent dry community.
Exactly. There's no place where there are no females?---That's correct.
But it is fair to say this, is it not, that upon reading Ms Harris's report and accepting that that's the plan for him if there be supervision, you'd be hard‑pressed to say that it doesn't lack feasibility, wouldn't you?---I agree.
And on the issue of high probability of noncompliance, at least the plan and his commitment to remaining alcohol‑free seems to be genuine?---Yes.
His genuineness in that regard is something that even though it might have been expressed crudely and simply, that he did indicate to you in interview?---Yes.
I note in passing, as appears from the line of questioning, at this stage of the hearing the answer from Mr D had not yet been received concerning the accommodation. Accordingly, the question was put in terms of possibilities.
However, notwithstanding the discussion concerning the Harris report, the witness was not prepared to alter her opinion that the respondent was a serious risk. When asked whether he would be as good being placed on a supervision order as being placed on a continual detention order she responded:
That would only depend on what kind of exactly sex offender treatment programme through - via that counsellor is available, because I think the key issue here is the treatment.
Under re‑examination this exchange with counsel occurred (ts 125):
At this stage, of course, we haven't heard any evidence as to the extent to which the community within which Mr Allen proposes to live would have that capacity to supervise him. If they can, presumably that risk recedes to an extent. If they can't, then the risk remains. Is that the decision?---Yes. Obviously, yes.
The evidence of Dr Bryan Tanney
Dr Bryan Tanney gave evidence on the second day of the hearing and dealt with matters addressed in his report dated 7 September 2009 which is included in the exhibit 1 evidentiary book of materials (pages 553 to 582).
Dr Tanney described his qualifications and the evidentiary materials made available to him. He graduated as a Doctor of Medicine in Toronto forty years ago and has had a lengthy experience as a forensic psychiatrist in Canada and in this State, having served as Consultant Forensic Psychiatrist at State Forensic Mental Health Service (Western Australia) from 2001 to 2008.
Dr Tanney noted that he had interviewed the respondent for a period of two hours on 30 August 2009. He had also spoken with Sarah Ballantyne of the Department of Corrective Services Sexual Offenders Unit and to Ms Shirley Harris, being an officer with Community Justice at Halls Creek. Dr Tanney observed that his report was prepared pursuant to s 37 of the Act to assist assessment of the level of risk of a person committing a serious sexual offence if not subject to a continuing detention order or a supervision order under the Act.
According to the Tanney report processes for enabling risk prediction include unstructured clinical assessment, guided clinical risk appraisal and actuarially derived standardised instruments. Each of these has inherent defects requiring consideration when applying and interpreting results and conclusions drawn by their application. These are general limitations of any report of this nature.
In his report Dr Tanney went on to describe the respondent's personal, medical and court history, noting that there were three episodes of sexual offending resulting in convictions being August 1993 at Fitzroy, October 1993 at Halls Creek and August 2003 at Broome. All victims were strangers and young females, and the events did not appear premeditated. All involved physical violence against the victims. Alcohol was a predisposing factor in all three, both for the respondent and the complainants. Because of the respondent's refusal to discuss the details at interview, 'no pattern of triggering stimuli or stages of progression towards offending could be identified'.
Dr Tanney said in his report that there was no evidence of abnormality in process or form of the respondent's thoughts. He was oriented, kempt, alert and able to concentrate throughout. His MMSE score (general cognitive functioning) was 29/30 and his general fund of information adequate. General screening probes and observations for psychosis were negative. There was intensity to his emotional reactions, but little depth. In Dr Tanney's opinion he was unable to assimilate or progress several exploratory insights. When challenged, he retreated to rote repetition of what he believed was expected of him, respecting community behaviour around women and alcohol abstinence.
Dr Tanney's report included reference to the instruments used to measure re‑offending risk and included reference to the STATIC 99 result and the scoring for the 22 items comprising the instrument known as RSVP (Risk for Sexual Violence Protocol). Dr Tanney noted that as to the 3 Predictor Model the three operative factors are unrealistic long term goals, unfeasible release plans and poor coping skills prior to release.
Dr Tanney's opinion was that without effective, ongoing management (including monitoring and possible treatment) and the implementing of certain risk diminishing measures, the respondent was at clear/definite risk of further serious sexual offending, as estimated by available procedures and measures (exhibit 1 page 582).
As to the STATIC 99 process, the respondent scored 7 of the possible 12, being a 'high' rating relative to other adult male sex offenders. This risk was quantified as a 40% likelihood of re‑offending sexually over five years based on a sample of all adult male sex offenders in Canada and the United Kingdom.
With the RSVP process, there were 14 definite risk factors of a total of 22. The RSVP Cluster A defines a serious issue of sexual offending behaviour in light of the chronicity and the physical violence associated with his offending. The other items are dynamic (potentially amenable to alteration by the offender or through rehabilitation) factors that might be addressed in a rehabilitation plan to decrease likelihood of further sexual offending. The respondent had identifiable risk factors in all four of these item clusters. These relate to longstanding issues of psychological adjustment (Cluster B) and chronic alcohol abuse (Item 14) with follow on adverse consequences for all social relatedness (Cluster D). The respondent's ability to engage in and retain benefit from rehabilitation programming has historically been poor, related to Cluster E. Dr Tanney observed that as to an intention to settle in a remote dry community the resources able to deliver the intensity and expertise of support required were much in doubt. The respondent's motivation and ensuing commitment to pursue the available supports was not assured.
Dr Tanney then observed that the respondent's 3 Factor Predictor Model provided marginal support for a reduced likelihood of re‑offending sexually. The respondent was said to have poor coping skills, evident at interview and in elements of his discharge planning.
It was said in the report that the results from three, different, structured enquiries to measure the likelihood of re‑offending risk were broadly complementary. STATIC 99 actuarially predicts 'high' likelihood of re‑offending. The RSVP process suggests major, broadly based, deficits in all risk factor clusters and few grounds for optimism about his rehabilitation potential. The 3 Factor Predictor Model is current focused but offers limited support for a lessened likelihood of re‑offending.
Dr Tanney's report went on to say that there was no obvious most responsible diagnosis for the respondent's mental state and offending behaviour. There was no evidence of a major mental disorder that would be associated with a lifelong history of excessive sexual interest or drive (exhibit 1 at page 565). It was said that abstinence from substance abuse was a necessary condition for any successful rehabilitation activity. The respondent had been unsuccessful in that regard in the community, save for one period of seven months when in a dry community (Leopold Downs) as part of a four month parole supervision order. Dr Tanney noted that the respondent's sexual offending could be framed as a disorder of quantity, not quality, in that there was no consistently deviant choice of sexual object.
The theme running through the Dr Tanney report was encapsulated in an assertion at par 6 of the 'explaining risk and risk management' section of the report in which it was said that the respondent simply did not have or apply the requisite psychological tools to step away from a risk situation. This appears to be due to either limited emotional capacity or questionable motivation.
As to managing risk, this would require both ongoing monitoring of risk and activities to protect against or minimise risk conditions or elements. This could be considered in both custody and community environments.
Dr Tanney noted that while in custody the respondent had participated in SOPT (Sexual Offender Treatment Programme) twice, one incomplete, and in a number of managing aggression and substance abuse group programmes. He said that outcomes were not promising. Dr Tanney said: 'I do not believe a further SOPT experience would be of value at this time'.
Dr Tanney then posed the question in his report as to whether the respondent's level of risk could be managed in a currently resourced, remote north‑west community under a supervision order that specified conditions of directed management. In that regard, the court would have to be satisfied that managerial activities would reduce or minimise risk in sufficient amount for the risk to be characterised as manageable in the community or enough diminished that community supervision would be regarded as acceptable risk management. Directed management would have to include (at minimum) consistently applied responses to breaches of supervisory conditions, regular meetings for personal support and monitoring by Community Justice personnel, complete abstinence from alcohol with random breath analysis monitoring, stable accommodation in a dry community and community support with involvement in community based activities targeted towards prevention of domestic violence and/or substance abuse. There would also need to be counselling support from a culturally sensitive resource with involvement in other treatment programmes as indicated and monitoring of his whereabouts on a daily basis.
Dr Tanney said that, based on his interviews, a strictly enforced programme was not likely to be successful at this time. He also registered some concern as to whether the activities to lessen re‑offending risk could be provided with current resources.
Dr Tanney set out his conclusions at pars 1 to 11 of his report. It is apparent from those conclusions, as evidenced by Dr Tanney's reasoning elsewhere in the report, that in his view, there was presently no sex offenders treatment programme in an institution or a community setting that was appropriate for the respondent or able to reduce the likelihood of the respondent sexually re‑offending to a manageable level in the community.
Dr Tanney observed at par 10 of his conclusions that externally imposed conditions that limit or closely monitor the respondent's risk elements afforded the most effective risk management in the community. These would require monitoring and enforcement for a period of at least five years. He observed also that, currently in Western Australia, any agency charged with implementing a community supervision order remains severely challenged to resource adequate monitoring of risk and to offer the intensity of targeted community based rehabilitation services sufficient to lessen an unacceptable likelihood of re‑offending.
Dr Tanney concluded his evidence‑in‑chief by an exchange with counsel for the DPP in relation to his conclusions in this way (ts 153):
You express the view that there is no program to deliver and enforce community supervision, as described in the preceding paragraph, that has the potential in itself at this time to reduce the likelihood of the respondent sexually reoffending to a manageable level, and you further reach the conclusion that is mostly because Mr Allen is unprepared or unable to adhere to such a program at this time?---Yes, and I need to be clear that I'm not sure whether we're talking about cantankerousness, which is one of the words used to describe Mr Allen, an unwillingness or simply an inability for him to sort of follow these rules for whatever reason.
Cross‑examination of Dr Tanney
Under cross‑examination Dr Tanney acknowledged that at the time of his interview with the respondent on 17 September 2009 he was aware that the respondent had been in custody for over five years and had been denied parole. The respondent would have known that Dr Tanney's report would go to the court as a matter relevant to the respondent's pending release. Nonetheless, Dr Tanney doubted that the respondent's anger and unwillingness to go over the details of his sexual offending resulted from these circumstances.
When pressed, Dr Tanney acknowledged that he did not obtain all the data he had hoped for and that the clinical aspects of his assessment were compromised to some extent. He acknowledged also that the respondent should not be characterised as sexually deviant in the sense of having an inappropriate object choice or fixation about some form of sexual practice. Dr Tanney kept in mind that cognitive impairment might have a bearing upon the respondent's apparent reluctance to discuss certain matters but on the whole, Dr Tanney formed the view that his reluctance was a form of avoidance and denial.
Dr Tanney was taken to a passage in a Department of Corrective Services Treatment Completion Report dated 9 March 2007 in which it was said that the respondent had 'successfully completed the Indigenous Men Managing Anger and Substance Use (IMMASU) programme at Roebourne Regional Prison' (exhibit 1 page 493). It was said further in that report that the respondent had attended every course session but was a very quiet participant. He had indicated a genuine desire to refrain from abusing alcohol after he was released from prison.
Dr Tanney acknowledged that the report included reference to the respondent identifying high risk situations in relation to substance misuse to be paydays, funerals and socialising with a certain group of friends. This suggested that he had moved on to considering positive practical strategies to address the consequences of impulsive behaviour related to the use of alcohol. Dr Tanney reiterated that the respondent was not sexually deviate and a critical feature of his re‑offending was alcohol (ts 166). However, in Dr Tanney's view, alcohol was not the only thing that led to re‑offending (ts 167). In Dr Tanney's view, the respondent's willingness to follow through on good intentions was likely to be the main stumbling block, as his performance in the past had been problematic.
As to predictive analysis, Dr Tanney acknowledged that he would not rely on STATIC 99 results on their own, because this process had been criticised by a number of courts in this State. It had demonstrated 'modest reliability' but not in relation to indigenous people in this State. The 3 Predictor scale process had not been validated in regard to indigenous populations in this State.
Dr Tanney said that the RSVP test was not an actuarial test but represented a structured clinical judgment approach. He agreed with an observation made in an academic paper that clinical presentation variables often deemed quite relevant to treatment such as lack of victim empathy and denial or minimisation of responsibility for sexual offending bore little relationship to sexual recidivism.
Dr Tanney observed that, in recent years, in other jurisdictions, there had been a shift away from a hard ability to predict outcomes to 'a value judgment that says safety containment is more important' (ts 176). This is a form of judgment to be made by the court. Factors of the kind just mentioned that might be important in terms of developing a proper treatment programme did not necessarily answer the question of whether the man was likely to offend again.
In answer to the cross‑examiner's question of whether 'the area of predicting dangerousness now is pretty controversial' Dr Tanney answered: 'Very much' (ts 178). He agreed that there appeared to be no single instrument in the field with a well accepted superior predictive capability.
When pressed by the cross‑examiner, Dr Tanney agreed that when dealing with the issue of supervision and prediction of risk, professionals such as himself tended to 'over predict' the risk. He then added (ts 179):
The issue becomes sensitivity and specificity, that we're willing to make more false positives in order to make sure that our net is big enough not to miss people, but on the other side we need to look at what the cost of that is to the people who we predict as being positive who are not positive, and this might be the circumstance with virtually anyone who has come up under this legislation. It's an immense problem for risk prediction science.
It was put to Dr Tanney that the respondent last engaged in a sexual offender programme in late 2007 and early 2008 when he completed 51 of 71 sessions of the ISOTP. Dr Tanney's understanding was that the so‑called shower incident then took him out of the programme because he was transferred to another unit where the programme was not operating. He agreed that as a consequence, as the end of his term and the possibility of parole approached, no further action was taken.
Dr Tanney had not seen the Harris report at the time of preparing his report dated 17 September 2009. He was therefore questioned at some length about the observations in that report concerning the respondent's proposal to live in a dry community at the proposed community with provision of counselling at Halls Creek. Notwithstanding the observations in the Harris report, Dr Tanney said that he adhered to the view expressed in his report, namely, 'based on my interviews I believe that a strictly enforced programme that is always open and direct in its mutual expectations is not likely to be successful at this time' (ts 189).
Dr Tanney denied that in effect his position was that the respondent should stay in gaol until such time as he psychologically 'opens up'. He said that, in his view, the respondent should be provided an opportunity in an environment where the safety of others can still be assured so that the things that might be done to lessen his risk could be put in place.
When it was put to him that the question of whether there was an aspect of psychological denial in the respondent's personality was very much a matter of speculation, Dr Tanney said that, in his view, there was evidence of avoidance or denial. He agreed that the inadequacy of resources arguably led to a difficulty in the system as to whether proper counselling was available. He agreed that in recent times, while in custody, the respondent was not afforded the opportunity to develop a relapse prevention plan. Dr Tanney had to agree that in the last 14 months the respondent had been offered no facilities by way of treatment programmes by the Department of Corrections. Further, in circumstances where it was recommended that he complete another IMMASU programme, such a programme was not offered to him, that being in circumstances where it was known that he had successfully completed an earlier programme.
Dr Tanney said that, in the event of the respondent remaining in gaol, he was unable to comment on what would be the first programme that he could do if he stayed in gaol. He knew that there were programmes but he was aware that there was a significant waiting list and slotting people in was difficult.
Dr Tanney then observed that it was quite feasible that the respondent could function in the community in another environment with conditions where a sex offender treatment programme would not make a significant difference and would not be needed. However, what was required was not simply a place to sleep but a 'sociometric' place in the community. He said 'that would make an immense difference to this man', but he did not see any evidence of that in the Harris report (ts 195).
I digress briefly to note that at the time these observations were made it had not been established that there was approval for the respondent to live in the proposed community. Accordingly, Dr Tanney was of the view that there was an element of speculation in dealing with the respondent's proposal. However, even assuming that the approval was forthcoming, Dr Tanney tended to doubt that the community would in fact be totally dry, having regard to Dr Tanney's experience of other communities in the north‑west.
In conclusion, the cross‑examiner took Dr Tanney to certain evidence at page 15 of his report to the effect that Dr Tanney did not expect that further exposure to relapse prevention programmes as available from the Department of Corrective Services or DCS would be of value to the respondent at this time. When pressed, Dr Tanney said this was because the respondent had not used them effectively in the past. The programmes offered by the Department were cognitive behavioural in origin and were fundamentally based in a problem solving strategy. In Dr Tanney's view, the respondent did not have the capacity to solve problems so there was little value in going into a programme where he would be required to solve problems, and failure was likely to result. The respondent should be given a problem solving programme first. The two programmes directed to problem solving were available in the community but he did not think they were available in a north‑west dry community. A problem solving programme and a culturally sensitive programme were directed to analysing deeper issues. They would inform the sort of counselling to be done eventually.
Preliminary observations on the expert evidence
It is apparent from this review of the expert evidence that both expert witnesses viewed the respondent as being somewhat uncooperative, especially in regard to going over the details of his sexual offending. However, a refrain that runs through the subject reports and related evidence is that the respondent is not cognitively impaired and, importantly, he is not thought to be sexually deviant. His offending has been characterised as opportunistic and related to the use of alcohol. The victim in each case has been a female adult (albeit comparatively young) but there are no indications that the respondent is inclined to prey on children.
It emerges from the expert evidence also that the respondent is perceived to be at risk of committing further sexual offences with a risk that the offending will be accompanied by violence. However, there is a degree of acknowledgement by the experts that the predictive instruments of analysis are not entirely reliable. It is recognised also that there can be a tendency for experts to be cautious and 'over predict' the risk of recidivism.
The respondent is thought to be in need of further problem solving and therapeutic programmes. However, there is a degree of ambiguity as to the provision of these programmes both within the prison system and in the community. It appears to be accepted by the experts that, owing to a lack of resources, programmes of the kind required may not be available in the north‑west of the State. Indeed, discussion about such matters, prompted me at one stage to be involved in this exchange with Dr Tanney:
But it seems to be a very strange catch-22 situation where you're saying to someone towards the end of his term, 'Well, you can get out provided you have available to you and you access appropriate treatment, but in fact there are no programs. So the logical consequence is you stay in'. It's a classic catch-22 situation?---Your Honour, I think that all of us who work in the area, not only within the department but beyond the department, are only too aware of this, and I have to be clear - I've said this before to your colleagues - hopeful that you will help us to remedy that.
The expert evidence considered as a whole appears to recognise that in the case of the respondent, who is not a deviant, who is blind in one eye and now well into his middle years, positioning within a supporting dry community has at least some prospect of success if programmes of the kind outlined by the expert evidence were available and if he can be supported by his community and monitored in a regular way. Ultimately, as Dr Tanney noted, a successful outcome may depend upon his capacity and willingness to avoid alcohol and risk situations.
Let me now proceed to some other matters.
Further evidence
The respondent did not give evidence at the hearing. However, in the course of the hearing certain documents were received in evidence with a bearing upon his circumstances. The documentary evidence adduced on behalf of the respondent included a letter to the respondent from the Acting Chairperson of the Dangerous Sexual Offenders Review Committee dated 15 May 2007 (Exhibit D) referring to the provisions of the Act and to certain relevant events.
The Chairperson said that the Review Committee had met on 26 April 2007 to review the respondent's case. Following deliberation, the committee decided to refer the matter to the DPP for consideration for an application to the Supreme Court under s 17 of the Act.
It was said further that on 8 May 2007 the DPP advised that he had elected to defer making a decision on the respondent's case until the case had been reviewed by the Prisoners Review Board. If the Prisoners Review Board denied or deferred the release then the DPP would consider reviewing the respondent's case. It was said that the DPP may not make an application unless it meets the high standard of evidence required by the Supreme Court.
The letter from the Review Committee concluded by saying that if the respondent wished he could to take the opportunity to speak to his unit officer for a referral to the prison counselling service in his prison or to speak to his CCO if further information or support was needed. A copy of this letter was sent to the Superintendent of the Roebourne Regional Prison.
It appears from related correspondence that on 24 November 2008 the Prisoners Review Board considered the case and based upon the reports and information presented to it deferred the matter for further review until 14 July 2009. It was said that the case would be reviewed on that date to allow the completion of an IMMASU course if it was available. I note in passing that it emerged from evidence referred to in earlier discussion that the respondent had completed an IMMASU programme on 4 March 2007 but later, owing to an altercation arising out of the so‑called shower incident, he was unable to complete the further course.
The evidentiary materials also included (exhibit A) a letter dated 23 September 2008 written by the respondent to the Prisoners Review Board setting out his circumstances at that time and indicating that he proposed to accept responsibility for his actions and abide by any parole conditions that might be imposed upon him.
Finally, the respondent relied upon the letter from the Chairperson of the proposed community, signifying approval to his residing in that community if permitted to do so by a court order. The terms of that letter were set out earlier in relation to the cross‑examination of Ms Harris concerning her report.
Submissions
Counsel for the DPP made submissions that essentially reflected the reasoning of the expert witnesses and other witnesses called by the DPP to the effect that it was necessary for a continuing detention order to be made. This was because there were unresolved issues concerning the respondent. Further programmes had to be undertaken by him in order to arrive at a situation of manageable risk, being programmes which could only effectively be undertaken while the respondent remained in custody.
Counsel submitted, having regard to the factors and considerations set out in s 7(3) of the Act, that the respondent continued to represent a serious danger to the community and there was an unacceptable risk that, if he were not subject to a continuing detention order, he would commit a serious sexual offence. It was said that the respondent's proposal to take up residence in the proposed community in the event of being released, if allowed pursuant to a supervisory order containing conditions of the kind reflected in the Harris report, would not be sufficient to provide for the respondent's rehabilitation or to ensure adequate protection of the community. There was no sufficient assurance that the respondent would not have access to alcohol. That being so, having regard to his previous court history and the psychiatric assessment reflected in the reports of the experts, there was a significant and unacceptable risk that further offending would take place. The proposed monitoring and counselling to be undertaken through facilities available in Halls Creek were not sufficient to remove or ameliorate the risk.
It will be useful at this stage to set out the proposed supervision order conditions referred to in the Harris report.
The proposed supervision order conditions
The proposed supervision order conditions referred to in the Harris report dated 23 September 2009 were divided into two parts being, first, standard conditions required by the Act and, second, certain additional conditions which were suggested to strengthen the conditions required by the Act for the more effective management of the respondent should he be released in the community.
The standard conditions and additional conditions are as follows:
STANDARD CONDITIONS REQUIRED BY THE ACT
a)Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of the person's current name and address.
b)Report to and receive visits from a Community Corrections Officer as directed by the Court.
c)Notify a Community Corrections Officer of every change of the person's name, place of residence, or place of employment at least two days before the change happens.
d)Be under the supervision of a Community Corrections Officer.
e)Not leave or stay out of the State of Western Australia without the permission of a Community Corrections Officer.
f)Not commit a sexual offence as defined in the Evidence Act 1906 Section 36A during the period of the Order.
ADDITIONAL CONDITIONS
The following conditions are suggested to strengthen and add to the above standard conditions required by the Act for the more effective management of Mr Allen should he be released in the community.
Residence
1.To continuously reside at an address approved in advance by a CCO or at a different address only if such different address is approved in advance by a CCO;
2.Not leave or remain out of the State of Western Australia without the permission of a Community and Youth Justice Director and, if so permitted, abide by all conditions of such permission whilst absent from the state;
Reporting to CCO and supervision by CCO
3.Report to the CCO at Halls Creek Community Justice Service at 71 Thomas St Halls Creek on the day of release from custody, and thereupon advise the CCO of his current name and address;
4.Thereupon be under the supervision of a CCO, and when so supervised, to comply with the same requirements set out in section 76 of the Sentence Administration Act 2003 that offenders must comply with under that section;
5.Report to, and receive visits from, the CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of the Respondent;
6.Notify the CCO of any change of his name at least 2 days before the change is due to happen;
7.Not commence or change employment without the prior approval of the CCO;
Attendance at programs or treatment
8.Engage with any psychiatrist, psychologist, counsellor, mentor, support service and/or support person nominated by the CCO as directed by the CCO;
9.Comply with the requirements of all programs designed to address your offending behaviour, as directed by a CCO;
Restrictions on no contact with victims or with family of victims
10.Have no contact, direct or indirectly, with the victims of his sexual offending, unless such contact is conducted strictly pursuant to agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Corrective Services;
Disclosures/Exchange of Information between agencies
11.Agree to the exchange of information between persons and agencies involved in his supervision, including otherwise confidential information;
12.Allow the CCO, or any persons or agencies approved by the CCO, to (i) interview any associates or potential associates and (ii) to disclose to them his offending history including otherwise confidential information.
13.Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment to the Department of Community Services;
Reporting to WA Police
14.Attend at the Halls Creek Police State at Great Northern Highway Halls Creek within 48 hours of his release from custody and thereupon report as directed by the Officer in Charge or delegate;
15.Advise police upon request of the names of all of his internet service providers, all mobile or landline telephone services used by him and all internet user names or identities used by him;
Criminal conduct/High risk situations
16.Not commit any sexual offence, as defined in the Evidence Act 1906 section 36A;
17.Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;
18.Not to commit an offence under s 557K Criminal Code 1913 (WA);
19.Not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis;
20.Not be in possession of, use, or be under the influence of alcohol;
21.Attend for, and submit to, urinalysis or other testing for alcohol or drug use as directed by the CCO or by a police officer including accompanying such persons to an appropriate location for such testing to take place;
22.Have no contact with any child under the age of 17 years, unless the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
In summary, then, the DPP submitted that on the material presently before the court there was a substantial risk that the respondent will commit a serious sexual offence if not subject to a continuing detention order. The evidence concerning the proposed supervisory order was not entirely satisfactory or sufficient to displace the facts and matters weighing in favour of a continuing detention order. Accordingly, the DPP submitted that such an order was the most appropriate disposition in the present case.
Let me now turn to the submissions made on behalf of the respondent.
Respondent's submissions
Counsel for the respondent submitted that the evidence relied upon by the DPP could not be characterised as cogent evidence and to a high degree of probability (as required by the Act) that the respondent was a serious danger to the community. It could not be said that in the event of a satisfactory supervision order being made, that there was an unacceptable risk that he would commit a serious sexual offence.
It was said that the predictive tools relied upon by the expert witnesses were recognised to be not entirely reliable. This characterisation could be made in general terms and, more particularly, in the present case because the predictive tools had not been framed with particular reference to the circumstances of indigenous people, especially those living in remote communities. Moreover, the facts and assumptions upon which the predictive tools were based had not been established by independent evidence and it was questionable for that reason also as to whether they could be safely relied upon.
A critique of this kind, counsel argued, was implicit in the concessions made by Dr Tanney in the course of his evidence. It should be kept in mind also, as Dr Tanney himself acknowledged, that there was a tendency for expert witnesses making use of these tools to 'over predict' the degree of risk.
Counsel submitted that comparative little weight should be given to the evidence of Dr Wojnarowska as her report contains speculative elements and many of her views seem to be canvassing worse case scenarios. Moreover, counsel submitted, she appeared to give undue weight to the respondent's supposed anger and unwillingness to cooperate without making appropriate allowance for his natural sense of frustration in being obliged to go over the history of his sexual offending at a time when he had been refused parole.
Counsel submitted that Ms Ballantyne had underestimated the effect of the 1995 treatment programmes. Moreover, it was uncertain, having regard to her evidence, as to whether the Indigenous Sexual Offenders Treatment Programme was in fact available or, if available, whether a place could be found for the respondent in the event of a continuing detention order being made. It seemed that all the places on the programme had been taken. Counsel referred to certain observations in some of the decided cases to the effect that it could be a relevant factor in determining what order should be made as to whether appropriate treatment was available within the custodial environment.
Counsel went on to submit that weight should be given to the evidence of Ms Harris and to the contents of the Harris report. Proper weight should also be given to the related evidence, being the letter received from the Acting Chairperson of the proposed community that residence of the respondent in the community would be allowed if a supervision order made by the court was thought to be appropriate.
Counsel concluded by submitting that a supervision order should be made essentially in the terms suggested by the Harris report including both the standard and additional conditions.
Conclusion
I have given careful consideration to the contentions of the parties. In the end, I find that I must return to earlier discussion and my preliminary observations on the expert evidence. To my mind, I must give weight to the fact that the respondent has not been characterised as deviant and his offending appears to be opportunistic and essentially related to the abuse of alcohol. There is a degree of ambiguity in the expert evidence as to whether the respondent will re‑offend. There is a degree of ambiguity also as to whether the problem solving and treatment programmes that might be undertaken, if he remains in custody pursuant to a continuing detention order, are in fact available or will actually be sufficient to remove the risk of re‑offending.
Further, I must give weight to that part of Dr Wojnarowska's evidence in which she indicated that the best scenario would be for the respondent to be placed in a supportive community with working and intimate relationships. Having reviewed the Harris report in the light of the indication from the Chairperson of the proposed community that the respondent's proposal to reside in that community was viable, being a dry community, Dr Wojnarowska was prepared to accept that a supervisory order directed to that end could be workable.
I must also take account of the fact that for an indigenous person such as the respondent, being a man of more than middle years, to be held in custody after his term has expired, without any clear understanding of what is required of him and when an opportunity to be released may mature, is a situation that may lead to continuing frustration and resentment which will stand in the way of rehabilitation.
Having regard to his previous court history, there is undoubtedly a degree of risk associated with the making of a supervisory order of the kind proposed. However, in the end, I am persuaded to the view that such an order should be made as there appears to be some prospect that the respondent can be integrated into a supportive dry community with appropriate provisions for monitoring and supervision.
After giving careful consideration to all of the evidence and to the proposed conditions of a supervision order mentioned earlier, I am satisfied that the community will be adequately protected by a supervision order in the terms previously described, subject to some fine tuning. The terms do not meet all the requirements contended for by Dr Tanney but they are rigorous.
It is important that those responsible for monitoring, treating and supervising the respondent are diligent to ensure compliance with the terms of the supervision order. It is only by ensuring strict compliance with the terms of the supervision order that the respondent's risk of re‑offending can be reduced to such an extent that the community can be adequately protected by a supervision order in the terms previous described.
In summary, then, I am satisfied that there is an unacceptable risk that if the respondent were not subject to a supervisory order of the kind described in earlier discussion, which includes the standard conditions and additional conditions (the 'specified order'), there is an unacceptable risk that the respondent would commit a serious sexual offence. Having regard to the matters set out in s 7(3) of the Act and related provisions, I find that the respondent is a serious danger to the community. However, in all the circumstances, having regard to the observations I have made, I am of the view, and so find, that a supervision order in the terms of the specified order should be made as a means of ensuring adequate protection of the community.
I will hear from counsel for the parties as to the exact terms of the specified order and as to any further orders or directions that may be required concerning the respondent's release from custody in accordance with the specified order.
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