Director of Public Prosecutions (WA) v Allen [No 4]
[2016] WASC 132
•28 APRIL 2016
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- ALLEN [No 4] [2016] WASC 132
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 132 | |
| 28/04/2016 | |||
| Case No: | MCS:38/2009 | 26 APRIL 2016 | |
| Coram: | HALL J | 26/04/16 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Expressly decline to rescind continuing detention order | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) HENRY JOHN ALLEN |
Catchwords: | Criminal law Dangerous sexual offenders Annual review Whether continued detention or supervision order appropriate |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA) |
Case References: | Director of Public Prosecutions (WA) v Allen [2009] WASC 360 Director of Public Prosecutions (WA) v Allen [No 3] [2014] WASC 455 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
HENRY JOHN ALLEN
Respondent
Catchwords:
Criminal law - Dangerous sexual offenders - Annual review - Whether continued detention or supervision order appropriate
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Expressly decline to rescind continuing detention order
Category: B
Representation:
Counsel:
Applicant : Ms K Robinson
Respondent : Mr R Owen
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 Allen [2009] WASC 360
Director of Public Prosecutions (WA) v Allen [No 3] [2014] WASC 455
1 HALL J: This is the first annual review of a continuing detention order made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) by Jenkins J on 4 December 2014: Director of Public Prosecutions (WA) v Allen [No 3] [2014] WASC 455. That order was made after a finding that the respondent, Henry John Allen, had contravened the provisions of a supervision order made under the DSO Act.
2 On an annual review the court must determine whether a person who is the subject of a continuing detention order remains a serious danger to the community: s 33(1) DSO Act. If the person is no longer a serious danger to the community the court must rescind the continuing detention order. However, if the court finds that the person remains a serious danger to the community it must either expressly decline to rescind the detention order or rescind the order and make an order that the person be released to the community on conditions that the court considers appropriate: s 33(2) DSO Act. In making a decision as to whether a person who is a serious danger to the community should continue to be detained or be released on a supervision order the paramount consideration is the need to ensure adequate protection of the community: s 33(3) DSO Act.
3 On the hearing of this review counsel for the respondent stated that it was not disputed that Mr Allen remains a serious danger to the community. It was also accepted that because some treatment goals had not been achieved and because no suitable accommodation was available or likely to be available in the short term, release on a supervision order was not a viable option at this point. In light of these concessions, and having received reports and heard brief oral evidence from a forensic psychiatrist, I concluded that the appropriate order was one expressly declining to rescind the continuing detention order. I made that order at the hearing of the annual review on 26 April 2016 and said that written reasons for that decision would be published in due course.
Background
4 On 4 December 2009 Hasluck J determined that Mr Allen was a serious danger to the community but that he could be released on supervision with strict conditions: Director of Public Prosecutions (WA) v Allen [2009] WASC 360. The facts of the offending were summarised in that decision.
5 Mr Allen did not commit his first sexual offence until he was 34, however he had a history of other offending, including numerous convictions involving violence, prior to that. Between the ages of 34 and 45 he offended against five young women. He raped two of the victims, seriously assaulted another in circumstances which indicated that he proposed to rape her, attempted to sexually penetrate a fourth victim and assaulted the fifth in circumstances that gave rise to a suggestion that if she had not been able to escape, he would have, at the very least, indecently assaulted her. Each of the cases involved the use of violence in an attempt to subdue the victim. The offending was associated in each case with alcohol intoxication.
6 On 2 March 2005 Mr Allen was sentenced to a total effective term of imprisonment of 5 years and 4 months for offences of attempted sexual penetration without consent and robbery. He was made eligible for parole but was denied parole for a number of reasons, including that he did not complete a sex offender treatment programme and because he was considered to be a high risk of reoffending. At the conclusion of his sentence on 18 October 2009 the respondent was detained in custody pending the resolution of the DPP's application to have him declared a dangerous sexual offender. This application resulted in the respondent being released on the supervision order on 4 December 2009.
7 The supervision order included conditions that Mr Allen not consume alcohol, reside at a particular Aboriginal community and not leave the boundaries of that community without prior approval. In January 2011 Mr Allen contravened the terms of the supervision order by leaving the community in which he was residing, travelling to Fitzroy Crossing without permission, failing to report to police as directed and consuming alcohol. On 1 March 2011 he appeared before Murray J at the hearing of an application pursuant to s 23 of the DSO Act for an order that the supervision order be varied. He admitted the contraventions and, with the consent of the parties, Murray J amended the supervision order and re-released Mr Allen.
8 Between 30 December 2011 and 23 November 2012 Mr Allen committed further breaches of his supervision order. The breaches were of a similar type to the previous ones. He was charged with offences against s 40A(1) of the DSO Act and sentenced on 6 February 2013 to suspended terms of imprisonment in respect of two of the breaches and small fines in respect of the rest.
9 In July 2013 Mr Allen again contravened his supervision order by being in possession of, using or being under the influence of alcohol. He was charged with offences arising from those breaches and remanded in custody. He was sentenced for those breaches and an application was then made by the DPP for an order that the respondent be made the subject of a continuing detention order. On 4 December 2014 Jenkins J concluded that there were no conditions upon which Mr Allen could be placed that would reduce his risk of serious sexual offending to an acceptable level. In this regard her Honour noted that intoxication was a significant risk factor and that Mr Allen had continued to drink despite a prohibition on doing so in the supervision order. Proceedings for breaching the supervision order and amendments to it had not been successful in changing his behaviour. He had also behaved in a violent manner and made threats of violence whilst in custody. Another impediment to release was the fact that there was no stable or adequate accommodation available.
10 This annual review was listed for a hearing on 4 February 2016. On that occasion counsel for the applicant noted that reports had referred to the possibility of a cognitive impairment that could be an impediment to the respondent participating in courses and obtaining benefits from treatment. In these circumstances it was proposed that a neuropsychological assessment be undertaken and that the review be adjourned for that purpose. Counsel for the respondent supported that application. The annual review was then adjourned to 26 April 2016.
Evidence on this annual review
11 At the hearing of this review the DPP tendered a book of materials dated 31 January 2016 and a supplementary book of materials dated 22 April 2016. The first book included the following:
(1) Department of Corrective Services records regarding conduct in prison;
(2) a Department of Corrective Services Individual Management Plan;
(3) a Department of Corrective Services Case Conference Report;
(4) a Programme Non-Completion Report for the Pathways programme by Ms Tanya Hendry dated 9 November 2015;
(5) a Programme Completion Report for individual counselling in the Pathways programme by Ms Sandra Quick dated 20 January 2016;
(6) a Treatment Progress Report by Dr Ben Bannister dated 13 January 2015;
(7) a Clinical Re-assessment Report by Ms Tania Wilson-Brown dated 14 May 2015;
(8) a Treatment Progress Report by Dr Dylan Galloghly, dated 22 December 2015;
(9) a Psychiatric Report by Dr Gosia Wojnarowska dated 25 January 2016; and
(10) a Community Supervision Assessment by Ms Jane Henshall, a Senior Community Corrections Officer with the Department of Corrective Services dated 29 January 2016.
12 The supplementary book of materials included the following:
(1) a Neuropsychological Assessment Report by Dr Mandy Vidovich dated 6 April 2016;
(2) an Addendum Psychiatric Report by Dr Wojnarowska dated 19 April 2016; and
(3) an Addendum Treatment Progress Report by Dr Galloghly dated 18 April 2016.
13 These materials were tendered by consent and counsel for the respondent did not require any of the report writers to give oral evidence. However, the applicant called Dr Wojnarowska to give brief oral evidence to supplement her report in regards to future treatment options.
Treatment progress
14 At the beginning of his most recent period of detention Mr Allen was assessed as having a number of outstanding treatment needs with regards to sexual offending and alcohol abuse. At that stage treatment options included a specific sexual offending programme designed for Aboriginal males (The Good Roads Programme) and a version of the substance abuse programme Pathways modified for Aboriginal men, as well as individual counselling with a psychologist.
15 A departmental psychologist, Ms Tanya Wilson-Brown, has managed Mr Allen's treatment in the last 12 months. This has included Ms Wilson-Brown seeing him for individual counselling since 2 April 2015. The frequency of those sessions has alternated due to the need for him to attend other treatment programmes and his 'variable capacity to tolerate weekly sessions'.
16 In late April or early May 2015 Ms Wilson-Brown was made aware that the recommended culturally appropriate sexual offending and substance use treatment programmes had been placed on hold by the Department. This was unfortunate as there was an obvious risk that, as a traditional Aboriginal man with limited education, Mr Allen would have difficulty coping with the standard programmes. The only available programmes were the standard Pathways and Intensive Sexual Offender Treatment Programmes (ISOTP). He was scheduled to participate in a Pathways programme at Casuarina Prison in mid 2015 and then transfer to the Bunbury Regional Prison in the first quarter of 2016 to participate in an ISOTP.
17 Mr Allen began a Pathways programme at Casuarina Prison on 12 October 2015. He attended nine sessions over five days before programme facilitators removed him from the course. It was found that he was having difficulty comprehending material, understanding the concepts and had poor overall engagement. The programme facilitators then organised a clinician to deliver an individualised culturally appropriate version of the Pathways programme. This counselling has been with Ms Sandra Quick and has focused on substance abuse issues. Ms Quick reported that Mr Allen engaged well in counselling and was seemingly well motivated. He developed insight into the negative effects of his poor alcohol use. He developed a risk management plan that included some basic rules to prevent the use of alcohol in and around any future home. However, Ms Wilson-Brown viewed his relapse prevention plans as being basic and requiring further therapeutic intervention.
18 The individual counselling with Ms Wilson-Brown initially focused on Mr Allen's aggressive behaviour. He demonstrated a rudimentary understanding of unhelpful past thinking and future strategies that could be employed. Ms Wilson-Brown noted that his capacity to manage his behaviour would likely be an ongoing area of concern. Initially he had not been able to tolerate sessions for much longer than 30 minutes, however more recently there has been a general improvement and he has been observed to be less frustrated, more positive and able to tolerate sessions for between 45 and 60 minutes. More recently there has been a focus on relationship issues and sex offending. Factors pertaining to unhealthy and healthy relationships have been discussed and he acknowledged a desire for a future relationship that was free from alcohol use. He had shown a shift away from a previous position of blaming women for his drinking issues. There were, however, concerns about his ability to retain, recall and integrate information. As a result future risk management was thought likely to necessitate a high degree of practical management strategies such as avoiding areas where alcohol is present and regular engagement with treatment support services.
19 There have been a number of prison incidents during the past 12 months when Mr Allen has shown a tendency to be aggressive. These had all occurred prior to the commencement of individual counselling. However his prison behaviour and his participation in treatment seem to have improved over the last four months.
20 A neuropsychological assessment was undertaken by Dr Mandy Vidovich. For this purpose Mr Allen was seen by Dr Vidovich on 17 and 18 March 2016. Dr Vidovich reported that he was difficult to engage and unwilling to participate without being given some guarantee of a favourable outcome with respect to his current custodial situation. Only a very limited amount of testing was completed. He did not wish to persevere with tasks when he was cognitively challenged and he terminated testing before it could be completed. Within the constraints of the minimal amount of testing that was completed, he demonstrated intact visual immediate attention and working memory. He was slow to complete drawing tasks and poor planning and organisation were evident, although he spontaneously attempted to correct his errors. Higher level visuo-spatial constructional abilities were impaired. However, other concept formation abilities were intact. He had difficulty regulating aspects of his interaction with Dr Vidovich and was observed to have trouble shifting his train of thought. Dr Vidovich concluded that there was little evidence of a progressive decline and his behaviour appears to have remained relatively stable with time. Mr Allen has a number of medical conditions that place him at risk of cognitive impairment and decline, including a background of excessive alcohol use, but the evidence of any such decline is not clear. Dr Vidovich said that it remained to be determined as to whether there are potential cognitive constraints upon his capacity to learn and retain programme related interventions.
Psychiatric evidence - Dr Gosia Wojnarowska
21 Dr Wojnarowska interviewed Mr Allen at Casuarina Prison on 19 January 2016. In her first report of 25 January 2016 she noted that it was difficult to obtain information from him regarding treatment gains. He was impatient when questions were asked and on one occasion got up and said that he wanted to terminate the interview.
22 Dr Wojnarowska noted that Mr Allen had undertaken individual counselling with Ms Wilson-Brown and that the treatment goals for this counselling included alcohol use, emotional regulation and sexual offending issues. She noted that specific factors underlying the sex offending were not addressed in individual counselling due to his reluctance to engage in these matters directly with his counsellor. Ms Wilson-Brown had accepted that this could have been due to cultural and gender issues and that she had been considering raising these issues in a less direct way by addressing factors precipitating the offending rather than the offending itself.
23 In her oral evidence Dr Wojnarowska said that it was unlikely that any benefit could be derived from Mr Allen participating in further group programmes. Experience had shown that the available group programmes did not cater well for his individual needs and his ability to participate in those programmes was limited. There was benefit in continuing individual counselling and some treatment gains had been made in the last year. However, Dr Wojnarowska had been advised that individual counselling could be delivered at the West Kimberley Regional Prison. There were significant potential benefits to Mr Allen being moved to West Kimberley. These included:
(1) reconnecting with his family and thereby establishing a positive and supportive community network;
(2) improved ability to make enquiries regarding possible accommodation options; and
(3) likely positive impact on mood and motivation of being closer to his own country.
24 Dr Wojnarowska said that in her view the only viable accommodation option for Mr Allen was a dry Aboriginal community. He had continued to express a belief that he wanted to play a positive part in his own community.
25 Dr Wojnarowska said that on the basis of testing Mr Allen continues to be at high risk of sexual reoffending if not subject to a continuing detention order or a supervision order. The risk of reoffending is associated with the presence of an anti-social personality, psychopathic traits and alcohol use disorder. His treatment goals have not been achieved due to his inability to participate in group programmes. He continues to be difficult to engage and has very limited insight into his risk of reoffending. Management in the community would be difficult due to a propensity to non-adherence with conditions and a poor understanding of the requirements of a supervision order. In the last year some gains in treatment were noted which are possibly due to a better understanding of the association between alcohol use and offending. However, these gains are not substantial and do not reduce the overall risk of reoffending to acceptable levels.
26 Dr Wojnarowska said that Mr Allen's treatment needs continue to be substantial. His interpersonal difficulties, poor insight, impulsivity, grandiose belief about his self-importance, misogynistic attitudes towards women, negative attitudes towards the professionals conducting treatment and assessment and in general towards authority, stem from a complex interplay between his personality characteristics and cultural factors. If released he would require close supervision with low tolerance for breaches, especially those related to alcohol consumption.
27 Dr Wojnarowska noted that Mr Allen had always lived in remote communities in Western Australia and being part of such a community is a protective factor for him. It does, however restrict the availability of treatment and supervision. Therefore these two factors must be weighed against each other.
28 In Dr Wojnarowska's most recent addendum report she noted the possibility that the respondent could be transferred to a less restrictive environment at the West Kimberley Regional Prison. She said that he would have an opportunity at that location to develop relationships with local services and experience family support. The less restrictive environment would test his planning and organisational abilities that would be required to function effectively in the community. She said that continued drug and alcohol counselling was strongly recommended.
Community supervision assessment
29 Ms Henshall's report sets out a number of possible accommodation options in the community. One of these is public housing in Derby. Mr Allen has been assisted in submitting an application, however there are only two properties in Derby of the type for which he is eligible and neither of them is vacant. He has been placed on a wait list but there are two applicants ahead of him and no timeframe can be provided for when such a property may become available to him.
30 A number of Aboriginal communities were suggested by Mr Allen and were the subject of investigation. In each case the location was not suitable either due to the unavailability of housing, the lack of transport or other services or the absence of confirmed community approval. It is unnecessary to refer to the reasons why each of the possible locations was unsuitable as it was accepted on behalf of Mr Allen that that was the case and that it was unlikely to change in the foreseeable future.
Findings
31 It is clear on the evidence that Mr Allen remains a serious danger to the community. This was not disputed at the hearing. It is equally clear that the risk of reoffending cannot be adequately managed in the community on a supervision order at this stage.
32 There has been some progress in the last 12 months in regard to alcohol as a risk factor. The respondent has shown some insight in the need to address this factor and also shown motivation to do so. Participation in group programmes has not been constructive, but this is likely to be due to the fact that programmes developed for the general prison community do not cater well for the respondent's individual needs and circumstances. His response to individual counselling has been very much more positive. However, significant treatment needs remain, in particular in regard to sexual offending.
33 The respondent has spent time at the West Kimberley Regional Prison in the past and has a strong desire to return there. He was moved to Perth so that he could participate in programmes and receive appropriate treatment. However it is now apparent that the only suitable treatment is continuing individual counselling. This type of treatment is available at the West Kimberley Regional Prison. There is the potential for significant additional benefits from such a move. They include reconnecting with family and cultural networks, improving motivation and making it easier for Mr Allen to identify and secure community accommodation. In these circumstances, in my view, any treatment plan for the next 12 months should include a move to the West Kimberley Regional Prison as soon as possible and continuing individual counselling to address substance use, behavioural issues and sexual offending.
Conclusion
34 I am satisfied that Mr Allen remains a serious danger to the community. I am also satisfied that his risk of reoffending cannot, at present, be adequately managed if he is released on a supervision order. He has made some progress in the past year, but it is minimal and has not yet reached a stage where release is a practical option. I am satisfied that there are no conditions that could be imposed at present that would reduce to an acceptable level the risk that he could reoffend.
35 For those reasons, at the hearing of this matter on 26 April 2016, I expressly declined to rescind the continuing detention order.
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