Director of Public Prosecutions (WA) v Alvisse [No 6]
[2013] WASC 154
•2 MAY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- AA [No 6] [2013] WASC 154
CORAM: McKECHNIE J
HEARD: 22 APRIL 2013
DELIVERED : 2 MAY 2013
FILE NO/S: MCS 33 of 2006
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
AA
Respondent
Catchwords:
Dangerous sexual offender - Annual review - No suitable accommodation - Supervision order otherwise appropriate - Obligations of State - Continued failure to find accommodation - Impact on judicial discretion
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Expressly decline to rescind detention order
Category: B
Representation:
Counsel:
Applicant: Mr J Whalley
Respondent: Mr M R Gunning
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Gunning Young
Case(s) referred to in judgment(s):
DPP (WA) v AA (No 5) [2012] WASC 136
DPP (WA) v AA [2010] WASC 59
DPP v Jonsson [2012] WASC 439
Fardon v Attorney General (Qld) [2004] HCA 46; (2004) 223 CLR 575
The State of Western Australia v AA (No 2) [2007] WASC 129(S)
The State of Western Australia v AA (No 3) [2009] WASC 74
The State of Western Australia v AA (No 4) [2011] WASC 85
The State of Western Australia v AA [2006] WASC 279
The State of Western Australia v AA [2007] WASC 129
McKECHNIE J:
The civilisation of a society can be judged by the way it treats its prisoners. - Winston Churchill (1910)
AA is a short stout child‑like middle aged prisoner. AA is not serving a sentence for an offence. He is detained in custody for care, control and treatment, because he was declared to be a serious danger to the community in 2006. He has been in detention nearly twice as long as the last sentence he served.
The court has repeatedly held that the community will be adequately protected if he is released on supervision.
But he cannot be. Not because he is too great a risk. But because there is no proper accommodation for him in the community.
An illusory discretion
When Parliament legislated the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), it provided that the court would exercise a discretion in respect of declared sex offenders as to their future. The paramount consideration is the need to ensure the adequate protection of the community. That is achieved by either a continuing detention order for care, control or treatment, or a supervision order allowing the offender to reintegrate into society with significant restrictions to maintain adequate community protection. Rehabilitation, provided it can be done with adequate protection, is in the public interest.
The existence of this discretion was one of the factors that caused the High Court to uphold the constitutional validity of similar legislation: Fardon v Attorney General (Qld) [2004] HCA 46; (2004) 223 CLR 575 [19], [34] and [109].
In respect of regular reviews, a feature of the DSO Act, Gummow J said:
Section 30(2) may permit refusal by the court of an order for further detention, by reason of failure by the appropriate authorities to implement the earlier order. An example would be an order for treatment of the prisoner to facilitate rehabilitation, an objective of the Act (s 3(b)). It is unnecessary to decide that question here. However, what is vital for Pt 3, and thus to the validity of the Act, is the requirement that the regular 'review' does not, with the passage of time, become no more than a periodic formality; if the exercise in which the court was involved had been permitted by the legislation to lose its requirement for deeply serious consideration upon specified criteria and to a high degree of satisfaction, then invalidity of such legislation may well result [113].
The existence of the discretion is illusory. There can be no deeply serious consideration to the exercise of a discretion between detention and a supervision order. After seven years the State has still not resolved accommodation issues necessary to ensure the adequate protection of the community if AA is released on a supervision order.
If I was able to give prominence to the effects of continued detention on AA, or the fact that his time in detention exceeds by nearly two times his original sentence, I would order his release on supervision.
But the paramount consideration is the adequate protection of the community. Once again, there is no alternative to continuing detention. I expressly decline to rescind the detention order.
The community can only be adequately protected if AA is released on a supervision order into a psychiatric hostel where he will receive medical assistance for his complex needs. But after seven years, still no room can be found for him in such a place and so he will remain a prisoner.
AA: The court history
Overview
AA is a paedophile with an interest in young boys. He has significant other mental health issues. On 26 June 2003 he commenced serving a sentence of 3 years and 4 months' imprisonment for one count of indecent dealing and one count of sexual penetration of a child between the age of 13 and 16 years.
An order was made on 17 September 2006 under the DSO Act s 14(1) shortly before his release from custody. Reports from Dr Mark Hall and Dr Wynn‑Owen were ordered. Dr Hall has had lengthy subsequent involvement in reviewing the respondent on behalf of the court and has provided a report of this review.
The respondent was released on a supervision order for seven years on 14 December 2006.
He had difficulty coping in the community and effectively turned himself in to authorities well before any real risk to the community arose.
Attempts over the years to find accommodation have proved unsuccessful and so the respondent has been held in detention from 27 February 2007 upon his discharge from Graylands Hospital. The original decision finding AA is a serious danger to the community and subsequent reviews set out the issues and dashed hopes.
The State of Western Australia v AA [2006] WASC 279 (12 December 2006):
28.Again, Dr Hall considered that close supervision and monitoring of the respondent in the community would be essential. There would need to be a real effort to help him obtain employment, to fit the respondent into a supportive social network, and with the help of agencies like Outcare, to endeavour to ensure that he had a relatively stress-free lifestyle. In short, Dr Hall said, he needed expert help to plan and adopt a structured lifestyle which would be calculated to support him in the community in circumstances which would reduce the opportunity for offending behaviour. Not only would the controls need to be within the Community Corrections Agency, but also by referral to the Community Forensic Mental Health Service. The program would need to be one which could be changed as the respondent's needs changed.
...
30But Dr Hall did say that these were matters which, with skill, could be managed, and he expressed the opinion that, as I think the respondent's history demonstrates, his risk of reoffending is in fact not immediate. Dr Hall said he was 'highly unlikely to offend in the short term'.
31In the meantime, effective control and supervision in a compulsory regime by both community corrections officers and community based mental health agencies would be essential. A community nurse would be assigned. Access to community groups would be fostered. The community corrections officer could act as, or appoint, a mentor to assist the respondent to establish an appropriate lifestyle. His contact with children could be restricted.
...
34.The community corrections officers' report shows that suitable accommodation can be made available with the assistance of Outcare. No commitment can be made in relation to the duration of that accommodation, but it is desirable that relatively permanent living circumstances be provided as soon as possible because it is obviously preferable that the respondent have assured accommodation, preferably, Dr Hall said, shared accommodation to provide company and limit loneliness. A paid mentor, funded by Community Justice Services, is proposed on an indefinite basis. An Outcare case worker has been identified, who would co-ordinate the respondent's program with the agencies concerned to assist people to re-enter the community upon their release from prison.
Murray J placed the respondent on an order for a period of seven years from 14 December 2006. The respondent was brought back to court after he surrendered. The circumstances are described by Murray J in The State of Western Australia v AA [2007] WASC 129 (20 June 2007):
14The respondent seems to have complied with the order, but two months after he was released from prison, on 16 February 2007 at just after 7 pm, he made a 000 call and was put on to the police. He told the operator that he was a sex offender and wanted help because he felt as if he wanted to offend again. He said that he had not done anything yet but he felt as if he wanted sex again. At one point he said that he 'might want to do it again'. He also told the operator that he was a psychiatric patient and of course in my judgment given on 12 December 2006 I discussed his psychiatric history at some length. The respondent told the operator, upon enquiry, that he was ringing from the Bentley shopping centre just outside the Coles store. He was asked to wait there because, he was told, arrangements would be made for police to attend and speak with him.
15The respondent waited and about an hour and a half later, at about 8.30 pm, two uniformed constables, McCann and Haslam, arrived in a marked police vehicle. They spoke with the respondent who told them he was a registered sex offender and he was having sexual thoughts, about which he appeared to be distressed. They took him to the Bentley Hospital psychiatric unit where he was seen in the presence of the two constables by a Dr Sharma.
16The statement of PC McCann, admitted into evidence, gives the gist of the interview with the respondent that then occurred. The respondent said he could not cope with society, he should re-offend to enable him to go back to prison or to hospital. He said that if that could not be done he was contemplating suicide as he could not handle life anymore. He had not had sex, he said, since 2005. He was afraid he would have to re-offend to satisfy his growing urge. He spoke of his affection towards children and the 'different' feeling he had when he saw them.
17In the result, the officers took the respondent to a police station where he was brought into contact with officers of the WA Police ANCOR Unit. One of those officers was a Detective Macander. Again his statement was tendered in evidence. He says that the respondent told him that as a result of his sexual thoughts he did not trust himself around children and 'possibly adults'. The respondent said that he did not consider himself to be a violent person but he thought he might become one. He said that he did not believe he had a place in society and he no longer wished to try to make one. He said he did not speak to anyone during the day and waited for the night when he would go out and walk the streets. The respondent asked the police officers for help. He said that he was not sleeping well and that the television and radio were giving him messages arousing sexual thoughts and he was fearful he would offend against some child and that he would not be able to stop himself from doing so. Eventually the officers had the respondent admitted to Graylands Mental Hospital.
Murray J had previously visited the issue of supervision and accommodation:
12This legislation however, is not predicated upon the view that despite the service of a sentence serious sexual offenders may never be rehabilitated. The legislation applies to offenders who at the time of the hearing of the application for a continuing detention order or supervision order are judged to be a serious danger to the community within the meaning of the Act despite their service of a properly imposed sentence of imprisonment. Section 4 sets out the objects of the Act. They are to provide for the continuing detention of such persons or their supervision in the community, 'to ensure adequate protection of the community' and there is the further object, 'to provide for continuing control, care, or treatment' of such persons. In other words the Act seeks an order which both protects the community and seeks to provide for continuing efforts to rehabilitate the offender, giving paramountcy however to the protection of the community, where one object must in a particular case give way to the other.
13The supervision order I made on 12 December 2006 was carefully devised not only to provide for the elements of such an order set out in s 18(1), but also to serve the general aim provided by s 18(2), the terms of which precisely reflect the expression of the objects of the legislation set out in s 4. In other words the terms of the order were designed to deal with the case of this respondent, having regard to the evidence as to what was required and the views expressed, not only by expert witnesses, but by counsel for the applicant and the respondent. The period of 7 years fixed was again done on advice. The order was to take effect on 14 December on advice that at that time suitable accommodation for the respondent would be ready to receive him. The form of the order, reflecting s 18, provided for the co-ordination of the contributions of various agencies by a community corrections officer assigned to the case. I shall return to its terms shortly.
...
29An important condition of his supervision order was par 14 which required him to engage with a nominated mentor appointed by his community corrections officer. A Mr Treasure was appointed. He is very experienced in this work. He was engaged for the maximum period allowable under the accepted protocol, 20 hours a week. More he could not do if he was to deal with other clients. However, it seems clear that the respondent was not satisfied with the extent of that commitment. He really wanted Mr Treasure's constant companionship, because he lacked any support in the community and he had not been gainfully employed.
...
32Dr Brett is the Director of the State Forensic Mental Health Service. I value his opinion and there are a number of reports upon the respondent before the court which have been made by him. When I made the supervision order on 12 December 2006 it was my hope and understanding that the responsible agency of the community mental health service would provide, by injection and supervised oral consumption, the anti-libidinal and other medication designed to stabilise the respondent's mood and suppress any sexual urges. I was advised that this would be an important aspect of the respondent's care and treatment, hence the terms in which I made the condition expressed in par 16 of the order.
33However, it seems that little was done in this regard, at least initially. I was provided with a letter report dated 31 January 2007 from Dr Brett to Mr Greble expressing concern about the respondent's situation and the risk that he presented unless properly managed. Dr Brett said that the respondent had been attending the Community Forensic Mental Health Service since 21 December 2006, but Dr Brett had only made his 'initial assessment' of the respondent on 30 January 2007. Further, although everybody was recommending anti-libidinal medication it seems that that had not by the end of January 2007 been administered at all. Nor, Dr Brett reported, had the respondent been accepted for yet another attempt at a sex offender program despite the condition expressed in par 11 of the supervision order that he was to attend such programs to address his offending behaviour as were directed by his community corrections officer.
34Dr Brett wrote again to Mr Greble on 21 February 2007, reporting what was described as the poor implementation of the management plan comprised of the supervision order, which Dr Brett described as 'sensible'. It seems that there was difficulty in co-ordinating the effort required of the various agencies concerned.
...
36I must say that the debate is not one which impresses me. The crucial point is that, whatever be the correct diagnosis, the respondent is a dangerous sexual offender within the meaning of s 7 of the Act who has treatment needs which need to be identified by the responsible agencies under the co-ordination of the Department of Corrective Services, so that when the experts identify the appropriate treatment it can be delivered. It seems to be clear, still, as it was when the supervision order was originally made, that the appropriate treatment involves the provision of medicine and the counselling and instruction of the respondent in terms that he may understand and cope with, so that he may have a better understanding of the drives that cause his offending and learn the mechanisms which will enable him to prevent that offending.
37Dr Brett expressed the view that the respondent did not suffer from schizophrenia. He therefore, 'does not fulfil the criteria for assertive case management through this service'. If so, then so be it, but I have to say that if the appropriate mechanism for service delivery does not exist then it must be provided. The court is bound to make its judgment within the framework of the Act. The court will not readily accept that it is driven to a continuing detention order by the unavailability of services within the community which are suitable to manage an offender who could be managed in the community if the necessary services were provided.
38In his report of 10 April 2007 Dr Brett expresses the view that the necessary services are lacking in Western Australia to enable the management within the framework of the Act of people such as the respondent, but I think that it is not so much that the services are lacking but that, as Dr Brett's report itself says, 'To manage this man safely there needs to be inter-agency co-operation and collaboration, without this his management is likely to fail'. It must be said that it was recognised by the court when the supervision order was made that this inter-agency co-operation and collaboration would be required. The order was framed on that assumption and expressed in terms designed to provide the management measures flexibly, according to the judgment of the experts, and to make it clear to the respondent what he was to do and that he was obliged to comply with the directions he was given, there being no suggestion that his cognitive deficits, such as they are, are such that he was incapable of understanding and following the necessary instruction.
...
53Mr Greble then turns to the inadequacy of the present arrangements made by the authorities for the implementation of the order in the period between 14 December 2006 and 16 February 2007. The evidence amply supports the view expressed by Mr Greble that the respondent quickly lost his momentum towards rehabilitation and the development of coping skills to enable him to survive in the community without undue risk of further offending, but I think the evidence also supports the view that that was in no small measure attributable to the failure of the authorities to respond adequately to his needs, rather than his wishes.
54It is clear in hindsight that the accommodation provided for him was inadequate, leaving him alone too often, a prey to loneliness and boredom. Apart from attending to his treatment needs in an adequate way it is clear that the respondent needs structured accommodation involving regular human contact. It is reported that he can and indeed has learned ordinary coping skills. If not in a job like the cleaning position he found for himself and was required to give up, the respondent needs regular employment, perhaps most desirably of the kind offered by Activ Industries. He needs in short to be helped to find a lawful purpose to his life.
...
59However, even had I been of the view that it was more probable than not that the respondent might contravene the order, I would not in the circumstances of this case have been further satisfied that there was an unacceptable risk that he would commit a serious sexual offence as defined by the Act if not indefinitely detained in custody. On the contrary, it seems to me that the evidence before me shows again that an adequate degree of protection for the community may be obtained by the implementation of the supervision order in the terms originally made. The conditions of the order were carefully devised to cover the areas relevant to his control, treatment and rehabilitation and were expressed in a form designed to enable them to be operated flexibly and to allow the responsible community corrections officer and the other authorities involved in handling the respondent's case to implement measures designed to meet the respondent's particular needs for treatment, counselling, appropriate living circumstances and meaningful occupation and social contact. At the same time I do not suggest that the respondent's case is other than complex and demanding of considerable effort and skill.
The State of Western Australia v AA (No 2) [2007] WASC 129(S) (delivered 28 November 2007):
11In the absence of available private accommodation of this kind, suitable for [AA]'s needs, Mr Greble observed that the other necessary and appropriate features of the supervision order could not be put in place. I refer to the requirement for intensive supervision by a community corrections officer and Community Justice Services, the supervised administration of appropriate medication, attendance at appropriate counselling services which are available, the use of a mentor assigned to the case to offer wide-ranging advice and assistance to enable [AA]'s re-integration into the community, utilisation of the services of Outcare, and otherwise obtaining a suitable occupation and the necessary human contact of an appropriate kind. All depends upon the respondent being able to be provided with appropriate, supervised and structured accommodation. It is in that regard that the effort has failed.
...
21Finally, in parting with this case, I wish to say this. The respondent is made the subject of a continuing detention order upon the proper application of the Act, but essentially because there is an incapacity to accommodate him in the community in structured, supervised accommodation of a kind appropriate to his needs, if he is to be enabled to function in the community in circumstances where he will not present a danger of the commission of serious sexual offences.
22No such accommodation appears to be provided by the State, and that which is provided by private agencies is extremely limited. The demand for that accommodation is very substantial. It is therefore the case that the waiting lists are long, and it is all too easy to reject a difficult case such as that of this respondent when the agency in question can readily employ its services for the assistance of others who do not present the management difficulties that the respondent does.
23It is not for the court to make any observation about the solution to this problem, but a solution must be found. Otherwise, this Act will operate to keep sexual offenders in prison indefinitely by default.
The State of Western Australia v AA (No 3) [2009] WASC 74 (26 March 2009):
15An important document in evidence before me is an assessment report made by a senior community corrections officer at the Casuarina Prison based unit of the Community Justice Services section of the Department of Corrective Services, Ms Charlton. Ms Charlton and the transition manager at Casuarina, Ms Raph, have undertaken a comprehensive review of structured, supervised accommodation available in the community which, it was thought, might meet the support and supervision needs of the respondent.
16Eleven non-governmental agencies and three governmental agencies were canvassed. In some cases, there were, in any event, very long waiting periods (up to nine years), but the officers were unable to identify any accommodation in the community which could meet the respondent's needs for a structured environment; for constant support and supervision; and for continual reinforcement of his progress.
17They therefore proposed to take up the suggestion of a long-term management plan in the prison setting. Apart from continuing treatment efforts, the plan is described as 'a graduated transfer to a minimum security prison to see how he will cope in a less structured environment'. The report does not say what the gradual process would involve, nor, I think, is it necessary that I should understand that. However, it would seem that the prison management officers consider that the process, 'could take up to three years to achieve'.
...
22In conclusion, I express the hope that this most difficult case will continue to attract the considerable effort which has been expended by the authorities in dealing with the case over the past year. However, it also seems to be abundantly clear that a considerable impediment to making more rapid progress in the respondent's case is his own lack of motivation to fit himself for a return to the community.
DPP (WA) v AA [2010] WASC 59 (12 March 2010):
11I note also Dr Hall's recommendation for a 24 hour supervised hostel or group home. Ms Wade's evidence is really that there is no such accommodation presently available. The prospects are not all that hopeful but perhaps not hopeless at this stage. Whether the respondent will be capable of adjusting to a supervision order in 12 months' time is not something I need to decide today. I am conscious that originally Murray J at the first hearing, and indeed the second, tried all explorations for a supervision order. I remain of the view, (and I do not think anybody associated with [AA] would have a different view), that a supervision order would be the most appropriate order in due course. However, it is clear and overwhelming from the evidence that we have not reached that stage. In all the circumstances, the only order I am able to make on the material is a continuing detention order.
The State of Western Australia v AA (No 4) [2011] WASC 85 (31 March 2011):
15The capacity to reintegrate him into the community in circumstances where he does not present a significant danger of the commission of sexual offences is challenging. He entirely lacks any social support from family members or otherwise in the community.
...
17Nonetheless, it is clear that slow progress is being made with the respondent in the task of not only treating his sexual deviance and his mental illness generally, but also in reducing his dependence upon the highly structured environment of the prison and by reducing his anxiety about living in the open community. It seems that the respondent has successfully managed the transition from high security to medium security upon his transfer to the Bunbury Regional Prison.
18If he can successfully manage further relaxation of his security rating, he may be rendered fit to be released to reside in the relatively structured environment of psychiatric hostel accommodation in the community. In case the court should be minded to make a supervision order, Dr Hall provides some sensible observations about the features of such an order which might be suitable to the respondent's case. However, I accept the opinion that consideration of such an order is premature, and I need not discuss that matter further.
DPP (WA) v AA (No 5) [2012] WASC 136 (20 April 2012):
9The reports and the plan indicate to me that the Department of Corrective Services is working hard to prepare [AA] for eventual life in the community, should the court decide in due course that he is an acceptable risk to be released under close supervision, and I am also pleased to see that [AA] seems to be working hard as well to achieve that goal.
Conclusion
10On the basis of all the material put before me I am satisfied that [AA] is making treatment gains, albeit slowly but very positively, and has considerably advanced from his condition when Murray J revoked the supervision order in 2007. However, I am clearly of the view that release into the community at this stage is premature. That is the State's submission and Mr Gunning agrees with it. There is still more work for [AA] and others to do before release under supervision can be considered. A paramount consideration is the protection of the community. At this stage of his treatment it would be a completely unacceptable risk for him to be released on supervision.
11I do express the hope that after a further period of counselling and adjustment, [AA] might reach the stage where his risk to the community by being released becomes, in the words of the Dangerous Sexual Offenders Act 2006 (WA), an acceptable risk. For the present, however, I find that he continues to be a dangerous sexual offender and I expressly decline to rescind the detention order.
Evidence at 2013 annual review
The DSO Act provides for an annual review when an offender is detained in custody. At the review hearing, counsel for the DPP tendered 15 exhibits and called Ms Dabala and Dr Hall to give evidence.
The psychologist
Dr Dylan Galloghly is a clinical and forensic psychologist with the Dangerous Sex Offender Psychology Team. His report was tendered by consent as neither party required his presence. He described the treatment background:
Prior professional assessments have outlined numerous treatment and management factors with a general consensus being that:
•[AA] has a chronic deviant attraction to young boys (paedophilia).
•He has poor general coping and adaptive behaviour skills in a context of unstable emotional and behavioural personality traits.
•He suffers from a chronic psychotic illness: current diagnosis of schizophrenia with prevalent symptoms pertaining to delusions, thought disorder and paranoia.
•He has limited intellectual functioning and presents as emotional immature.
Dr Galloghly noted:
[AA] has continued to progress through his staged release plan. However, his release plan was amended following the 2012 annual review as parties involved in his management believed that a transition to a psychiatric community rehabilitation service/hostel would be more appropriate than progression through the PRU.
...
FUTURE INVERVENTION ISSUES AND PLAN
[AA]'s combination of impaired intellect, erratic emotional personality traits and chronic psychiatric symptoms necessitate the need for a comprehensive multi-service approach to his management. His high level of needs suggest that he will require ongoing support in regards to managing his offending behaviour, mental and general health, finances, accommodation, and vocational and leisure pursuits. As such, a plan has been put in place that should allow [AA] to transition to Romily House if he is released on a community supervision order. Please note that should the option of transitioning to Romily House be unsuccessful, similar services will need to be canvassed.
...
Should the court decline to rescind [AA]'s detention order, his staged release plan will need to be revised. If he is kept in custody he will continue individual counselling with the DSO Psychology Team. However, as [AA] appeared to struggle with the previous plan to progress him to greater independence within the prison system, there is a vacuity of psychosocial rehabilitation options available to him within a custodial setting. Additionally, available group program interventions suited to his capacity have been exhausted.
Dr Galloghly concluded:
[AA] displays chronic paedophilia and mental health issues that will most likely always require some form of management. Additionally, his inhibited capacity for psychological treatment restricts his changes of making profound treatment gains. As such, he will most likely always have treatment and management needs per se. He also has an immature personality style that demands a high level of support from others. A plan to transition him to a community psychiatric rehabilitation and accommodation service is currently in progress. This plan appears appropriate for his rehabilitation needs as it should provide him with a number of necessary support resources while developing his ability to function in the community.
The Senior Community Corrections Officer
Ms Dabala is a Senior Community Corrections Officer with responsibility for AA.
She reported that a place had been secured at Romily House but subsequently Romily House had withdrawn its offer. She concluded:
[AA] appears before the Court for his 2013 annual review under the Dangerous Sexual Offenders Act 2006. Since [AA]'s annual review in 2012 he has had ongoing engagement with his Department of Corrective Services psychologist, prison staff and Prison Focussed Senior Community Corrections Officer in order to prepare him for release into supported psychiatric accommodation. The Romily House psychiatric hostel was identified by Dr Pyszora as a suitable accommodation option for [AA] due to the level of support they could offer, however, due to staff complaints in relation to the safety of children visiting the hostel and the hostel's close proximity to two schools, the manager of Romily House withdrew the offer of residency for [AA]. The Department of Corrective Services have since attempted to source suitable supportive accommodation for [AA] without success. At the time of completing this report, Mental health staff at Casuarina Prison were in the process of completing a referral to the BP Luxury Care psychiatric hostel in Maddington and upon completion, the referral will be duly submitted to the hostel. The Court will be updated on the progress of the referral once it is known.
She gave evidence as to the current position:
And another alternative hostel was identified potentially, at BP Luxury Care?---Yes.
What progress, if any, has been made in relation to that hostel?---There has been no progress. The form was emailed to mental health nurses at Casuarina. I believe the nurses filled in what they could and then it was to go to the psychiatrist and when it went to the psychiatrist last week the psychiatrist has refused to sign the form. His reasons were that he didn't know [AA] well enough and he wasn't aware of the facility. He didn't know BP Luxury Care, what they offered [AA].
So when you say a form, were you're referring to some sort of referral?---Yes, there's a referral form which is quite lengthy and needs information on his treatment, his medication, his current health, his behaviours, and then [AA] signs the final form, disclaimer on the form, so without that being filled in by the psychiatrist we couldn't lodge the form.
Is that a prerequisite to any referral to BP Luxury Care?---Yes. They were the one that said that they did have vacancies so if they had accepted the form we would have gone out there and introduced ourselves as the team and [AA] and begun working on whether they would accept him and working to get him a place there, but without that form being filled in basically it has come to a dead end (ts 118).
The psychiatrist
Dr Hall has been extensively involved in the assessment of AA over the years and was appointed by the court to prepare a report for this review. I accept his report and his opinion as to future management.
It is not in contention that AA remains a dangerous sexual offender at high risk of re‑offending sexually if not subject to a continuing detention or supervision order. Mr Gunning, on behalf of AA, correctly concedes this is so. Dr Hall concludes that AA remains a serious danger to the community.
His opinion is amply supported in his report. Dr Hall also looked at treatment options:
[AA] would appear to have reached the limit of possible treatment gains from a psychological or behavioural point of view. Although he has made some small personal gains over the past twelve months with respect to emotional self-regulation and limited acceptance of responsibility for his behaviour, he exhibits a number of features that should be considered residual and which contribute to his ongoing risk. These are primarily, but not limited to, his deviant sexual interest, with both unhealthy offence‑based sexual fantasy and deficient moral awareness serving to reinforce his deviant sexual interest, as well as his poor problem solving and coping skills, associated vulnerability to decompensation under stress, his persistent psychotic symptoms, and an external locus of responsibility for his behaviour.
[AA] benefits from support, company, structure and supervision. Previously, the lack of commitment to community psychiatric treatment from any community‑based mental health service was a barrier to placement at a psychiatric hostel. Despite the late withdrawal of Romily House from a coordinated community management plan for [AA], the commitment by the Community Forensic Mental Health Service (CFMHS) since the last annual review to provide psychiatric case management to [AA] once released, and his successful relocation to Casuarina Prison to facilitate familiarisation with his case manager and better planning is a major advance. As a management plan it is superior to, and supersedes, the previous staged release preparation plan in my opinion.
Based on [AA]'s progress to date, I am of the opinion that, if placed at a licensed psychiatric hostel and provided with psychiatric care through the CFMHS, those factors that contribute to his high risk of reoffending would be manageable.
Given that [AA] is still to be formally accepted by a psychiatric hostel, I respectfully recommend that he:
•Remain at Casuarina Prison for the purpose of linkage and familiarisation with those community-based services that are going to support him once released, specifically the CFMHS.
•Continue to have psychiatric treatment and follow up whilst in custody.
•Engage with a case manager from the CFMHS.
•Continue sessions of individual counselling with his DSO psychologist (presently Mr Summerton) for the purpose of consolidating and maintaining the psychological gains made to date.
•Be referred to a licensed psychiatric hostel in the metropolitan area for accommodation in the community once released.
A lack of inter‑agency cooperation
Murray J flagged this issue in June 2007: The State of Western Australia v AA [2007] WASC 129 [38].
Dr Hall gave evidence as to the lack of cooperation and what may be needed in the future:
I think part of the problem is it's not well defined whose responsibility it is. By way of background, I would probably just sort of say that reflects the fact that, within corrective services, the delivery of mental health services is not equivalent to the delivery of mental health services either in the community or in an inpatient facility. That is in an inpatient facility or a community mental health clinic the care is delivered in a multi disciplinary format so, and it has been for some time now and that's considered to be the contemporary best practice. ...
What I mean by multidisciplinary is that a team can be composed of a psychiatrist, nursing staff, occupational therapist, social worker, psychologist generally. In a multidisciplinary team it would usually fall to the social worker in liaise - in conjunction with the psychiatrist and the mental health nurses to select a hostel and complete a referral form and liaise. The social worker tends to be key in that process. That is the same whether it's coming from - it's a community based client and they're being referred by their community mental health service to reside in a particular hostel or whether it be an inpatient service looking for accommodation for somebody. Within corrective services mental health care is to this stage not delivered under a multidisciplinary model. Whilst there are different disciplines available within prison health services they are not coordinated as a multidisciplinary team. So hence the lack of definition or clarity as whose responsibility it actually is. So the Mental Health Commission is directly involved with any particular patient usually consists of a visiting psychiatrist that may visit the prison anywhere from two half days a week - or one half day a week to three half days a week and the mental health nurses that are on site. So generally speaking there's no access to a social worker, there's no access to an occupational therapist, there's no access to a psychologist as part of that multidisciplinary team. Yes, they have other roles but not as part of that core mental health service delivery.
...
In [AA]'s case I would say the most effective way forward would be, as has occurred, a joint venture between the Community Forensic Mental Health people who would be looking after him in the community, the prison mental health staff, the senior community corrections officer involved with the DSO process and the visiting psychiatrist (ts 124 ‑ 127).
Dr Hall's suggestions seem sensible and appropriate. Murray J's observations in 2007 have resonance still:
[I]t is not so much that the services are lacking but that, as Dr Brett's report itself says, 'To manage this man safely there needs to be inter‑agency co-operation and collaboration, without this his management is likely to fail' [38].
This is illustrated by Ms Dabala's evidence. Ms Dabala only met AA twice although that was because he had been in another prison. She is likely to see him now once every two or three weeks.
Her response to questioning about hostels confirms the need for a multi‑disciplinary team:
Are there any other potential hostels?---There are a number of licensed psychiatric hostels in Perth but I don't know what sort of support and care that they offer. There are some that, you know, specialise with dementia patients, so that would not be suitable for [AA]. I'm not aware of what each hostel offers. I because a psychiatrist maybe would have more information on that.
Are there government hostels?---They're registered with the Department of Health but I think that in most cases they're independently run but they are licensed with the government.
Are there any that are actually non-government or NGA hostels that are actually run directly by the state government Department of Health?---I wouldn't know.
...
Whose responsibility is it, do you say, to find suitable accommodation for [AA]?---I mean, in my role I can make contact with those hostels but if I'm going to come - you know, if I come across the same scenario again as I have this time with having the prison psychiatrist fill in the form, maybe it needs to come from the psychiatrist that either writes the report for court or from Dr Pissaro in community health. I don't know about - if I'm going to identify and hit a roadblock each time it's going to be very difficult. We're not going to get anywhere.
...
Leaving aside the question whose responsibility it is to find accommodation, who would you say, just in your opinion, is in the best position to assess suitable hostels or identify, locate and assess suitable hostels?---A psychiatrist, either his treating psychiatrist or the report writer psychiatrist. I'm not aware of what [AA]'s needs are, mental health needs (ts 119, 120 ‑ 121).
The need for Ministerial intervention
AA has been adjudged suitable for release on supervision into the right accommodation - a psychiatric facility.
The first attempt failed, as Murray J observed, because the accommodation provided to AA was inadequate leaving him alone too often, a prey to loneliness and boredom.
That was early in the life of the DSO Act and perhaps the authorities responsible, mainly the Department of Corrective Services, were unused to the rigour which the court expects its orders to be carried out.
Liaison between relevant Government departments should have been developed early but was not.
It is unacceptable that after seven years, it is necessary for another senior psychiatrist to suggest what is obviously needed - inter‑agency cooperation.
The problems that arise in lack of inter‑agency cooperation in the review concerning AA are not unique to him: DPP v Jonsson [2012] WASC 439.
I am the judge in charge of the Dangerous Sexual Offenders list and regularly make preliminary and other orders for hearing or review. I have made formal orders in respect of 22 persons alleged or proven to be dangerous sexual offenders. In my experience the present difficulties are common to a number of dangerous sexual offenders.
Many dangerous sexual offenders may now be suitable for release into the community because of the introduction of electronic tracking. This is a significant advance which will supplement the level of supervision already undertaken by the Police Sexual Offender Management Squad (SOMS) and Corrective Services.
But nearly all such offenders will share characteristics with AA:
•lengthy sentences and detention in prison;
•institutionalisation;
•psychiatric issues;
•physiological health issues;
•inadequate personalities;
•need for adjustment to modern society;
•need for mentoring;
•isolation; and
•boredom.
As bureaucrats have been unable to initiate robust inter‑agency cooperation after seven years, in my respectful view, there is now a need for Ministerial intervention to ensure that the objectives of the DSO Act are fully realised.
A person should not be detained in custody if the community can be adequately protected by their release on strict supervision. That release requires appropriate steps by Government to facilitate the transition into community life.
Departmental response to date has been insufficient. Moreover, there is far too much reliance on the stretched and limited resources of the private sector to overcome deficits within Government services.
Dr Hall suggests a multi‑disciplinary team‑based approach in which a social worker plays a key role. His suggestion is, with respect, eminently sensible and is what occurs within the community with people with complex needs.
My impression from the evidence in this case, and in other cases, is that there are people of skill and goodwill within Corrective Services who work hard to try and achieve the objectives of the DSO Act:
To provide for the detention in custody of persons of a particular class, or for their supervision and for other purposes.
SOMS has proven to be proactive in the managing of offenders and assisting them to remain offence free.
Liaison between SOMS and Corrective Services is a model that might well be copied by other agencies.
But there are organisational deficits within Corrective Services and other departments which manifest as institutional State indifference to any order but detention. Detention is not the sole or even preferred option under the DSO Act. Unless organisational improvements are made in AA'S case and others the option of supervision within the community will decline even as the Government makes significant investment in electronic monitoring. Electronic monitoring is only one risk reduction measure and not the most important. Without immediate attention to the issues thrown up in this review, adequate protection of the community is unlikely in some cases.
For the present the only course open to me is to expressly decline to rescind the detention order.
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