Director of Public Prosecutions (WA) v Corbett
[2012] WASC 438
•16 NOVEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- CORBETT [2012] WASC 438
CORAM: McKECHNIE J
HEARD: 8 AUGUST & 16 NOVEMBER 2012
DELIVERED : 16 NOVEMBER 2012
FILE NO/S: DSO 3 of 2012
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
TYRONE KINGSLEY CORBETT
Respondent
Catchwords:
Dangerous sexual offender - Principles to be applied - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Dangerous offender declaration
Released on supervision order
Category: B
Representation:
Counsel:
Applicant: Mr S W O'Sullivan
Respondent: Ms M R Barone
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 279
McKECHNIE J:
Introduction
The DPP applies for orders under the Dangerous Sexual Offenders Act 2006 (WA) s 17.
The issues
Is the respondent a serious danger to the community?
Answer:Yes.
Should he be detained or released on supervision?
Answer:Released on supervision with strict conditions.
In deciding whether the DPP has satisfied me by acceptable and cogent evidence to a high degree of probability that there is an unacceptable risk if Mr Corbett was not subject to a continuing detention order or supervision order he would commit a serious sexual offence, I must have regard to the matters enumerated in s 7(3) of the Dangerous Sexual Offenders Act.
The DPP submitted two books of materials which have been incorporated and tendered as exhibits. In addition, the DPP called a number of witnesses to amplify their reports.
Report of psychiatrists: s 7(3)(a)
Dr Febbo
Dr Febbo was one of two psychiatrists appointed by the court to review the respondent before concluding:
Axis One (Clinical Disorders)
History of alcohol abuse/dependence of cannabis use
The possibility of a paraphilia, in my view paraphilia not otherwise specified, has not been excluded.
Axis Two (Personality disorders and mental retardation)
I note the likely presence of a paranoid and an antisocial personality disorder.
Axis Three (Physical conditions)
Mr Corbett gave a history of a being diagnosed with renal disease, hypertension and hyperlipidaemia.
Axis Four (Psychosocial and environmental problems)
Physical and sexual abuse in childhood
Accommodation Issues
Likelihood of significant stress related to release and relocation into a community setting.Axis Five (Global Assessment of Functioning)
Currently 80 or 'if symptoms are present, they are transient and expectable reactions to psychosocial stressors' (Book of Materials, vol 2, page 419).
Dr Febbo applied a number of risk assessment tools which he sets out in detail in his opinion. Dr Febbo's conclusion:
Mr Corbett's history of sexual offending began early. I note two sexual offences in his early and mid-teens. As an adult there were three sets of sexual offences and two most recent set of sexual offences occurred within months of each other in 2005. The history is in keeping with chronicity of sexual violence.
Mr Corbett has used physical coercion including a weapon in order to offend.
Although it is important to be cautious in the use of risk assessment measures in an Aboriginal man of Mr Corbett's background, all the risk assessment measures used in this assessment, the Static 99, HCR-20, PCL‑R and the RSVP, are consistent with Mr Corbett being at high risk of a serious sexual offence following release if he is not subject to a Detention or Supervision Order (Book of Materials, vol 2, page 431).
Dr Febbo then set out five matters which are significant in the presentation and understanding of the respondent's sexual offending and level of risk. In his view there have been some, but minimal, gains made to address the respondent's sexual offending. If further gains are to be achieved then the most appropriate modality of treatment would be individual psychotherapeutic work.
Dr Wojnarowska
Dr Wojnarowska was the second psychiatrist appointed by the court. Her diagnosis:
Axis 1
Clinical Disorders - this axis is for reporting various disorders or conditions expect for personality disorders and mental retardation
- Alcohol and cannabis dependence, currently in remission.
Axis II
Personality Disorders and Mental Retardation - this axis is for reporting personality disorders and mental retardation. It may also be used in noting prominent maladaptive personality features and psychological defence mechanisms
- Antisocial Personality Disorder
Axis III
General Medical Conditions - this axis is for reporting current general medical conditions that are potentially relevant to the understanding or management of the individual's mental disorder
- Hypertension
- Chronic renal disease
Axis IV
Psychosocial and Environmental Problems - this axis is for reporting psychosocial and environmental problems that may affect the diagnosis, treatment and prognosis of mental disorders
- Alienation from the family of origin
- Current incarceration- History of child sexual abuse
Axis V
Global Assessment Functioning
65/100
(Book of Materials, vol 2, page 453).
Dr Wojnarowska also employed a series of predictive tools. In her opinion:
Mr Corbett is at high risk of re-offending. He has previously demonstrated an impaired ability to regulate his sexual arousal which, combined with his alcohol abuse, resulted in him being convicted of serious sexual offences and manslaughter. He has made considerable gains during ISOTP but in my opinion, if released unsupported he is likely to relapse into his previous unhelpful coping strategies such as drinking alcohol and smoking cannabis. He is relatively young and so far has not had the opportunity to develop healthy, mature defence mechanisms, and as such is vulnerable to the influences of others (Book of Materials, vol 2, page 455).
Presence of psychopathy
Dr Febbo and Dr Wojnarowska disagreed about whether there were elements of psychopathy. In his report, Dr Febbo scored the respondent on the HARE psychopathy checklist (PCL‑R) as follows:
Overall, I gave Mr Corbett a prorated total score of 27.4 points out of a possible 40 on the PCL-R. According to the PCL-R manual, with respect to overall symptoms of psychopathic personality disorder, a score of 27.4 out of 40, places him at about the 72nd percentile when his score is compared to those based on a pooled sample of 5408 male offenders. Put another way, about 28% of correctional offenders are more psychopathic than he is. Whilst a score of 27.4 out of 40 is below the cut-off traditionally used to diagnose psychopathy, which is 30 points or higher, it falls into the medium PCL-R group (mixed), defined by a score between 20 and 30. According to the RSVP a score of 27.4 suggests that an individual has possible or partial evidence of a psychopathic personality disorder. In addition Cooke and Michie have argued that the cut-off score of 25 in Scottish male offenders reflects the same level of the latent construct of psychopathy as does a score of 30 in North American male offenders. A similar cut-off score was proposed for English offenders.
Mr Corbett's score relating to interpersonal and affective features of psychopathy (Factor One) was eleven out of a possible sixteen placing him at around the 75th percentile. This sub-scale measures features such as lack of remorse or guilt, shallow affect, the lack of empathy, in addition to a failure to accept responsibility. The factor also includes markers for manipulation and a grandiose sense of self-worth.
In contrast, Mr Corbett's prorated score on the social deviance scale (Factor Two) was 12.2 out of a maximum possible of 20. This places Mr Corbett at about the 51st percentile. This scale reflects his tendency to impulsivity and irresponsibility, juvenile delinquency, revocation of conditional release, and early behavioural problems.
In a retrospective follow-up study, Hildenbrandt, Royter and Vogel found that the PCL-R total score was significantly associated with general recidivism, violent recidivism and sexual recidivism. The literature is in keeping with the PCL-R having a good predictor validity with respect to sexual offences, particularly when combined with sexual deviance (Book of Materials, vol 2, page 421 ‑ 422).
By contrast, Dr Wojnarowska reported:
PCL-R
Mr Corbett received a low score on the psychopathy assessment and therefore this item is not of further relevance in the assessment of his risk of re‑offending. (Book of Materials, vol 2, page 454).
Dr Wojnarowska also considered that the respondent did not show aspects of sexual deviance (ts 28). Dr Wojnarowska expanded on her findings or more accurately non‑findings of psychopathy (ts 37). She noted that it is the first time that a divergence of opinion had occurred with any colleague in this area until now. She explained why that might be:
Well, I think the problem with assessing psychopathy, that although we do rely on the historical factors, we also rely very much on the mental state examination and on the way we interact with the person....So to a certain degree it is subjective. We do try to objectify it by having regular peer reviews and calibrating our findings, but obviously sometimes there is a difference (ts 38).
Dr Febbo also commented on the difference:
Look, I would agree that there is a subjectivity to the assessment, and that subjectivity extends more to factor 1 than factor 2, factor 1 being the affective features of psychopathy. The presentation I obtained, the information I obtained on the interview from the history and the mental state examination was - appears to be quite different to what was obtained by Dr Wojnarowska.
Do you know how that comes about or why it comes about?---Well, I mean, I was just sitting at the back of the court and hearing some of the information that Dr Wojnarowska commented about. I found that difficulty to reconcile with some of the history that I obtained from Mr Corbett in relation to, for example, his view as to whether the victims were harmed or not, his level of - the victim's compliance or perhaps even willingness to engage with sexual activity with him. There were very different opinions that I obtained from that of Dr Wojnarowska.
McKECHNIE J: Different information?---Different information in my view.
O'SULLIVAN, MR: So it's the basic information that Mr Corbett is giving you and giving Dr Wojnarowska that seems to be the distinction?---Yes. That's right. I mean - that's right. I mean, if you just look at the last defence, (sic) for example, I think he gave Dr Wojnarowska a history that that was the worst thing he'd ever done, that it was terrible that he did it, whereas, you know, some of the information he gave to me in relation to that would suggest that that's not really his view (ts 61).
Conclusion on psychopathy
The differences between the opinions of Dr Wojnarowska and Dr Febbo are not completely explained by the possibility of the different presentations by the respondent in the interviews. I have no reason to reject either the opinion of Dr Wojnarowska or of Dr Febbo. I note that Dr Febbo suggests that at its highest, he has possible or partial evidence for a psychopathic personality disorder. In view of the difference of opinion I am not satisfied to a high degree of probability that the respondent has psychopathic traits of such a nature as to increase his danger to the community.
For the same reasons nor am I satisfied that he exhibits sexual deviance to a degree which would, of itself, render him a danger to the community.
That is not the end of the matter though. Clearly the respondent recounted different history about himself to Dr Febbo and Dr Wojnarowska. The fact of the difference is a matter of concern. As Dr Febbo put it:
I mean, another difference in view might be the fact that, he wasn't being truthful during the course of that program, and that somehow he's let his guard down now at times during the interview, and that information was obtained (ts 62).
Other assessments: s 7(3)(b)
An earlier psychological report was prepared by a clinical psychologist with the Juvenile Justice Division on 13 April 1994 when the respondent was 15 years old. After noting that an earlier psychological report of February 1993 showed that the respondent was a boy who displayed a range of paraphilic behaviour in the past, the offences of attempted sexual assault for which he appeared in court in 1993 can be viewed as a progression. The current presentation in 1994 was that he had matured over the past year:
He has a history of disturbed sexual acting act that has culminated in attempted sexual assault. An individualized intervention programme was devised following an earlier attempted sexual assault and Tyrone's problem behaviour was not apparent for a period of over one year. The recent charges highlight how Tyrone's sexual patterns are still of major concern and increase the earlier estimation of risk of reoffence (Book of Materials, vol 1, page 48).
The psychologist also noted that attempts at intervention had been made and that the respondent had already experienced court imposed sanctions but those failed to restrict his sexual offending. These factors coupled with the risk of a repeat of his earlier offence and the apparent premeditation suggested that the respondent is at high risk of reoffence.
Psychological report dated 18 January 2006
Dr Watts prepared a report prior to the respondent being sentenced for aggravated sexual assault and deprivation of liberty. Dr Watts concluded that he was at high risk of reoffending:
The nature of the offences means that there would be an elevated general risk within the wider community if he was intoxicated, but the highest risk are within those in his closest circle.
In regards to rehabilitation, Mr Corbett shows no connection with his offending behaviour. There is no evidence to suggest remorse about the impact on the victims (Book of Materials, vol 2, page 305).
Dr Watts concluded that:
In conclusion, Mr Corbett is a 27 year old Aboriginal man on serious sexual offences which are of a repeat pattern, starting in his mid-teens. I would postulate that his early dissociation from his family resulted in the anger necessary to generate sexual assault charges. This anger is released through heavy intoxication where inhibitions and controls are minimised. Mr Corbett justifies his behaviour by seeing it as victim initiated. While intoxication may release the control and colour his perceptions, he still maintains the beliefs about the victim's behaviour when sober. Such a belief system will be difficult to treat. However, a two-part approach is necessary to make a difference. One is to manage his substance abuse and the other is for Mr Corbett to complete an intensive sex offender course. I would wonder whether his Aboriginality and attitudes may preclude him from attending the second course as historically it has been geared to white middle class offenders who admit to the offending. However, this treatment is very necessary (Book of Materials, vol 2, page 306).
Propensity and pattern: Section 7(3)(c) and (d)
The respondent commenced sexual offending in November 1992 with a subsequent conviction for attempted sexual assault. On 16 March 1994 he committed the offences of burglary, deprivation of liberty and attempted sexual penetration. He was released from custody on 7 September 1994 but a little over a year later was remanded in custody from 12 November 1995 until June 1997.
On 22 May 2002 the respondent committed the offences of aggravated indecent assault (being armed with a knife), and threat to injure against his 44 year old aunt.
He was released from prison on 13 January 2004. On 19 April 2005 he committed offences of deprivation of liberty and two counts of aggravated sexual penetration without consent against his 21‑year‑old aunt.
On 6 August 2005 he committed offences of deprivation of liberty and aggravated sexual penetration without consent against his 17‑year‑old cousin. He was arrested on 8 August 2005 and remains in custody.
The reason for his present custody is a sentence of 7 years' imprisonment for the offences against his aunt and cousin backdated to 9 August 2005.
The respondent has five convictions for offences of a sexual nature from the age of 15. All of the respondent's offences involve women known to him (in some cases related). In this it can be said that there is a pattern to his offending although I do not place much weight on this finding. The fact that the respondent has offended against women known to him is more indicative of the level of risk to that group of women.
Efforts to address the causes of the offending behaviour and positive effect: Section 7(3)(e) and (f)
The respondent has completed an ISOTP. In a report dated 28 April 2010 (Book of Materials, vol 2, page 344) Mr Summerton noted:
On occasions that Mr Corbett was the focus of specific exercises, he invariably approached the relevant issues with a high degree of openness. It was evident that he had quite an acute memory for events in his life and was able to address various issues in significant detail, regardless of whether they related to the recent or distant past - his openness was consistent and he did not attempt to present himself in a favourable light (Book of Materials, vol 2, page 346).
Mr Summerton noted:
At the commencement of the program it was apparent that Mr Corbett clearly had very significant treatment needs and while he is considered to have committed himself to the treatment process and to have made substantial gains he nevertheless has a number of outstanding needs and certain changes should be viewed as progressive. ... He demonstrated improvements in the area of assertive communication and problem solving ... developed a reasonable insight into his level of paranoia. ...
Other areas of treatment gain include his appreciation of consent issues and victim empathy. He arguably addressed the victim empathy component more comprehensibly than any other group member (Book of Materials, vol 2, page 350).
Mr Summerton concluded:
Overall Mr Corbett is considered to have gained increased insight into the factors related to his offending though he impressed as having been quite naïve with reference to what actually constitutes change in this regard (Book of Materials vol 2, page 352).
The person's antecedents and criminal record: Section 7(3)(g)
The respondent's criminal record and antecedents, other than his sexual offending, is significant. While much of his offending is of an anti‑social nuisance variety, he has a conviction for manslaughter on 11 June 1996 and several convictions for burglary. So far as his general antecedents are concerned, and this is reflected in his record to some degree, the respondent has had significant issues with intoxication.
The respondent is a serious danger
On the whole of the evidence I am satisfied to a high degree that the respondent is a serious danger to the community unless an order is made. His history of sexual offending, assessment of risk of future offending, unaddressed treatment needs compel that conclusion.
Detention or supervision
The paramount consideration is the safety of the community. If that can be accomplished the least restrictive option should be chosen. At the time of the first hearing there was a divergence of opinion between the two psychiatrists. Dr Febbo's opinion:
In my opinion, as I have outlined above, the information I obtained during my interviews and my review of the documentation suggests that there has been some, but in my view, minimal gains made to address Mr Corbett's sexual offending. This has been discussed in the section on the RSVP. In my view, if further gains are to be achieved, then the most appropriate modality of treatment would be individual psychotherapeutic work. I am of the view that it would be appropriate for Mr Corbett to commence individual psychotherapeutic work in a custodial setting and consideration can be given to release once Mr Corbett engages in treatment and makes significant progress. It is fair to say that progress is likely to be a relatively slow; however, after commencing this psychotherapeutic work and assuming Mr Corbett engages in this input, then this can be continued in the community following release (Book of Materials, vol 2, page 432).
On the other hand Dr Wojnarowska's view is:
Mr Corbett is at high risk of re-offending. He has previously demonstrated an impaired ability to regulate his sexual arousal which, combined with his alcohol abuse, resulted in him being convicted of serious sexual offences and manslaughter. He has made considerable gains during ISOTP but in my opinion, if released unsupported he is likely to relapse into his previous unhelpful coping strategies such as drinking alcohol and smoking cannabis. He is relatively young and so far has not had the opportunity to develop healthy, mature defence mechanisms, and as such is vulnerable to the influences of others. I discussed my recommendations with Mr Corbett and he agreed that release to the community under Supervision Order would give him the best chance of remaining offence-free. I would therefore support this notion and make further treatment a priority for Mr Corbett; he requires psychological counselling with a special focus in the areas of self management, resolved grief in relation to his history of abandonment by his parents, and his history of child sexual abuse. Support by an Indigenous mentor would be of great value. Mr Corbett would also need to be compliant with random breath tests and urine drug screens and should be expected to participate in alcohol and drug counselling. In my opinion, placement in a remote Aboriginal community could compromise his full reintegration into a life which Mr Corbett felt would be the preferable option - that is, employment opportunities. In addition, access to psychological treatment should be one of the discriminating factors in relation to his placement (Book of Materials, vol 2, page 455 ‑ 456).
Dr Febbo expanded on his report in his oral evidence so that there did not in the end appear to be an enormous difference between his opinion and that of Dr Wojnarowska. Dr Febbo believed that the respondent should not be released until the therapeutic counselling intervention was established but saw this in terms of months rather than a year, certainly not 12 months. If he had to put a number on it, it would be four months. To make the risk manageable:
I don't think it needs to be twelve months if he engages fully (ts 105).
A reactive position is inappropriate
Mr Bell, a clinical psychologist with the Department of Corrective Services, prepared a report dated 20 July 2012 (Exhibit 82) which concluded:
Although Mr Corbett has demonstrated reticence in participating in a group based substance abuse program, it is noted that he has indicated a willingness to participate in individual therapy. Should Mr Corbett be made subject to an order under the provisions of the Dangerous Sexual Offenders Act (WA) 2006, he will be assessed with a view to determining interventions and psychological management strategies appropriate to his individual situation. Until Mr Corbett is interviewed, specific and contemporary individual treatment recommendations cannot be made (Book of Materials, vol, page 381).
This reactive approach cannot be sustained. It is not acceptable for the Department of Corrective Services to wait for a judge to make an order before interviewing a respondent and making an assessment of treatment needs. Without that advice, a judge lacks material to choose between a detention order or a supervision order in the event that a respondent is judged to be a serious danger to the community. A judge must make one or other of these orders. It is disappointing to encounter this attitude five years after Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 279 [83] ‑ [86].
For these reasons I adjourned the hearing on 9 August 2012. These are my reasons for doing so.
This is an application for an adjournment by the respondent in order that further work can be done and, in particular, two matters, that the respondent can be assessed and, if necessary, commence psychological treatment, such treatment being recommended by both the court-appointed psychiatrists, Dr Wojnarowska and Febbo; secondly, that further inquiries be made as to the source of possible accommodation. The inquiries having been made so far for accommodation outside the Perth area have been unsuccessful for reasons I do not need to elaborate.
The position I find myself in is this: I am guided by the paramount principle, which is the need to ensure adequate protection of the community but provided that principle or consideration is properly accommodated. The least intrusive option between detention and supervision ought to be chosen. The view I express is necessarily a preliminary view because I am required to give detailed reasons on reaching a final view, but I might say that it is a very firm preliminary view that the respondent is, within the meaning of section 7, a serious danger to the community.
...
I note that he has attempted to address the causes of his behaviour and has had a positive review in some respects of his completion of the ISOTP. I note also that his antecedents are not good and include a conviction for manslaughter; his other convictions being mainly of a street-drinking variety.
In the particular situation of this case I find that the evidence is inadequate for me to conclude whether, having regard to the paramount consideration under section 17(2), a detention order or a supervision order should be made.
The reason that the evidence is inadequate is, I should stress, not the fault of the DPP, and probably not anyone's fault, but it is a fact. Each of the psychiatrists is of the view that the risk which the respondent poses, at least for the next year and probably longer, is a risk that can be managed rather than reduced, and that an effective measure of management will be intensive psychotherapeutic intervention.
They differ in their opinions as to when that should be. Dr Wojnarowska's opinion as to risk: the risk can be adequately managed if the respondent is released on strict supervision, which includes conditions as to psychotherapeutic intervention, alcohol and drug counselling and other relevant protective strategies; whereas Dr Febbo is of the view that, at the present state, the respondent is too much of a risk to be removed until psychotherapeutic intervention has been established.
His opinion, which is obviously subject to the caveat as to whether or not psychotherapeutic intervention can be properly established with rapport, is that that not necessarily be a long period. Pressed to put a time, he put three to four months but, necessarily, no-one can precisely predict.
The court should, in my opinion, as I have expressed and as the cases compel, make an order least restrictive to the respondent if the paramount consideration is able to be met. I rely on the judgment of the Court of Appeal in DPP v Williams (2007) 35 WAR 297, and in particular the judgment of Wheeler J, with whom Le Miere J agreed, at paragraphs 85 and 86, and so I communicate to the parties my provisional view that the evidence is inadequate in two respects: one is evidence of the respondent's engagement in psychotherapy and what is required and, secondly, evidence as to accommodation within the community, which in this particular case is almost, of necessity, the Perth community.
...
So in the unusual circumstances of this case there is no, at the moment, present disagreement between the two psychiatrists as to the need for intensive psychotherapy and the possibility that that may reduce the risk posed to the community to a level where I might release him, but the only difference is to whether that should be now or after assessment.
I conclude that the course best suited to the interests of justice is to adjourn this matter for a period, enabling the DPP to address the deficiencies in the evidence identified and the respondent an opportunity to adduce evidence in relation to those matters (ts 140 - 144).
Subsequently counsel agreed a proposed timetable as follows:
•By 12 noon Friday 2 November 2012 - DSO psychologist submits update report;
•By 12 noon Friday 2 November 2012 - CCO submits update report (although CCO to email Ms Barone and DPP if there are significant developments, positive or negative, in interim);
•By 12 noon Friday, 9 November 2012 - Dr Febbo submits update report;
•Friday 16 November 2012 - adjourned Division 2 hearing.
The parties complied with this timetable.
Despite the criticism I have expressed concerning the reactive approach of the Department of Corrective Services, it is only fitting and fair that I record my appreciation of the efforts that have since been undertaken on behalf of Mr Corbett, both to engage him in therapy, by Mr Bell at the great efforts that have been undertaken to find him accommodation and otherwise prepare him for the community by the Senior Community Corrections Officer Ms Debala
Dangerous sex offender treatment progress report
In a report dated 23 October 2012 Mr Bell noted:
Mr Corbett has engaged willingly in session and has generally responded to treatment. ... Throughout the psychotherapy sessions Mr Corbett was able to demonstrate a high level of empathy for his victims and a firm appreciation for the impact that his offending may have had on his victims and his family.
Mr Bell noted that in the treatment completion report following the ISOTP it was reported that Mr Corbett demonstrated improvements in the area of consent issues and victim empathy. Based on Mr Corbett's current presentation it appears these treatment gains have persisted.
Overall the report is very positive and a strong rapport was established with Mr Corbett for the future.
Clearly from Mr Bell's report and also Dr Febbo's further opinion, Mr Corbett will need to continue treatment within the community. He must continue attending psychotherapy regularly so that his interactions and management of intimate relationships can be monitored and discussed. Mr Bell considers that the treatment can take place under the auspice of a community supervision order and if made subject to an order Mr Corbett will attend regular psychotherapy sessions in the offices of the Department of Corrective Services. If made subject to a continuing detention order he will attend regular psychotherapy sessions in prison.
Dr Febbo has further assessed Mr Corbett and has prepared a report after seeing Mr Bell's report. Dr. Febbo was impressed with Mr Corbett's acceptance that alcohol and substance abuse were significant factors in offending and he has made attempts to address these issues. He also wishes to work on issues related to his abuse in childhood, whether or not he is released. He made it very clear that he accepted that he needed to comply with the strict requirements of the supervision order. Dr Febbo concluded:
[T]he history suggests some progress in a number of risk factors identified in the RSVP. These include the risk factors of problems with self‑awareness, attitudes that support or condone sexual violence, problems with planning, problems with treatment, and problems with supervision.
In my opinion it would be appropriate to consider placing Mr Corbett on a supervision order (488).
Possible accommodation
It is unnecessary to detail the attempts to find accommodation for Mr Corbett other than to again acknowledge the court's appreciation of the efforts.
Ruah Tenancy Support Agency has confirmed that one of their three crisis accommodation properties has been allocated to Mr Corbett but will not be available until January 2013.
The desktop analysis of the proposed address has been pending since 29 October 2012.
Holyoake has formally accepted Mr Corbett as a client and he has already participated in five individual sessions. Rapport has been established and he has engaged very well in counselling.
A mentor is presently unavailable. Unusually, Mr Corbett has available to him a considerable amount of money and some of this can be used for temporary housing until accommodation through Ruah becomes available in January. I conclude that there is now a realistic housing plan.
I note also a realistic plan to develop his artistic skills through the Justice Through Art Programme.
Conclusion
There comes a time where treatment gains may be lost if a person continues in detention. The paramount consideration is the adequate protection of the community. Bearing in mind that the respondent has committed no offence that warrants his detention, if the paramount consideration can be met with a supervision order then it should be.
Having regard to the report of Mr Bell, the further report of Dr Febbo, the probability of stable accommodation within two months, the treatment gains already made and which will combine with Mr Bell and Holyoake, I am of the view that the community can be adequately protected through compliance with a supervision order with strict conditions. These include:
•A curfew for 6 months;
•After 3 months, a CCO may lift or vary the curfew;
•The hours of the curfew will be 6.00 pm - 6.00 am;
•The supervision order will be a period of 6 years.
The question then arises as to when the supervision order should commence. Ms Debala gave evidence that Ruah have already engaged with Mr Corbett and will provide him with support from the time of his release even if the house is unavailable at that point. The Department would find the respondent emergency accommodation and then move him into temporary accommodation, probably within a caravan park. Because of his redress payment of $28,000 he is not eligible for Centrelink payments or other benefits. Ms Debala will continue to liaise closely with the respondent although she will be on leave for a period, but her supervisor will ensure that the respondent is managed during that time.
Dr Febbo is of opinion that a smoother transition; that is, one involving a move directly to Ruah accommodation is most beneficial. The alternative is not as stable and may possibly increase the risk that the respondent poses due to consequent anxiety and stress. There may be a temptation to abuse alcohol.
Dr Febbo notes that if the respondent is further detained there may be a level of anger and resentment which will interfere with treatment because the respondent has engaged so positively and is still not immediately released. However, on balance, he considers it is more appropriate for the respondent to remain until the Ruah option becomes available. The level of structure in prison is quite extreme and when completely removed the difficulties will be amplified which is why a degree of stability in the Ruah accommodation will be better.
It must be acknowledged that the Ruah accommodation itself is temporary for a period of three months so there is likely to be some anxiety and stress in due course. Dr Febbo agrees that it is not the location that matters but the manageable risk. As Ms Barone points out, Mr Bell will continue to be involved. Ms Debala will continue to be involved. Ruah will be involved and Holyoake are already involved. These are important factors.
The benefits and risks of release immediately and release to Ruah accommodation are relatively evenly balanced. However, the test is not of balance but the paramount consideration is the risk to the community.
I am uncomfortable with temporary accommodation for this respondent within a caravan park with transient movement and the possibility of temptation which cannot be completely dealt with by way of a curfew. I acknowledge that the respondent has made great treatment gains in the last few months and that is encouraging. It is also why I am going to release him on supervision. But I do not consider that the risk to the community would be acceptable if he was released immediately into transient, temporary accommodation.
I do consider that the risk to the community can be acceptable if the respondent, when released, has stable, if temporary, accommodation.
The date at which the Ruah accommodation will become available is uncertain. It may become available earlier than mid January 2013. The orders I will make are:
1.The respondent is declared to be a serious danger to the community.
2.The respondent to be placed on a supervision order for a period of 6 years.
3.This matter is adjourned until accommodation at Ruah becomes available. At that point either party may apply to have the matter relisted on short notice and I will make a formal supervision order.
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