Director of Public Prosecutions (WA) v Corbett [No 4]
[2015] WASC 485
•17 DECEMBER 2015
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- CORBETT [No 4] [2015] WASC 485
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 485 | |
| Case No: | DSO:3/2012 | 16 DECEMBER 2015 | |
| Coram: | HALL J | 17/12/15 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Expressly decline to rescind the continuing detention order | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) TYRONE KINGSLEY CORBETT |
Catchwords: | Dangerous sexual offenders Annual review Whether serious danger to the community Whether supervision order or continuation of detention order appropriate Need for a detailed treatment plan |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 33 |
Case References: | Director of Public Prosecutions (WA) v Corbett [2012] WASC 438 Director of Public Prosecutions (WA) v Corbett [No 2] [2013] WASC 474 Director of Public Prosecutions (WA) v Corbett [No 3] [2014] WASC 442 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
TYRONE KINGSLEY CORBETT
Respondent
Catchwords:
Dangerous sexual offenders - Annual review - Whether serious danger to the community - Whether supervision order or continuation of detention order appropriate - Need for a detailed treatment plan
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 33
Result:
Expressly decline to rescind the continuing detention order
Category: B
Representation:
Counsel:
Applicant : Mr A L Troy
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 Corbett [2012] WASC 438
Director of Public Prosecutions (WA) v Corbett [No 2] [2013] WASC 474
Director of Public Prosecutions (WA) v Corbett [No 3] [2014] WASC 442
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 me on 25 November 2014: Director of Public Prosecutions (WA) v Corbett [No 3] [2014] WASC 442. That order was made after a finding that the respondent, Tyrone Kingsley Corbett, 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 this review Mr Corbett does not dispute that he remains a serious danger to the community. The expert evidence supports that conclusion. The issue is whether he can again be released into the community on a supervision order with conditions that would adequately protect the community from the risk that he would commit further serious sexual offences.
4 There is equivocal evidence as to whether Mr Corbett has made progress in the last 12 months. A number of unmet treatment needs have been identified that are relevant to the risk of further offending. I am not satisfied on the available evidence that adequate protection of the community could be assured by releasing him on a supervision order at this time. Accordingly, I expressly decline to rescind the continuing detention order. The following are my reasons for coming to that conclusion.
Background
5 On 16 November 2012 McKechnie J determined that Mr Corbett was a serious danger to the community and that he should be released on supervision with strict conditions: Director of Public Prosecutions (WA) v Corbett [2012] WASC 438. The facts of the offending were summarised in that decision. He was not immediately released as appropriate accommodation only became available on 18 February 2013.
6 Mr Corbett was subsequently charged with 11 offences of contravening the conditions of the supervision order, contrary to s 40A of the DSO Act. He pleaded guilty to seven of the charges and was found guilty of a further two: Director of Public Prosecutions (WA) v Corbett [No 2] [2013] WASC 474. The offences included breaching the curfew condition, permitting other people to remain at his residence contrary to the directions of community corrections officer, failing to attend a scheduled psychologist counselling session and failing to attend a scheduled meeting with a community corrections officer. He was sentenced to a total effective sentence of 7 months' imprisonment for those offences.
7 The Director of Public Prosecutions (DPP) did not seek revocation of the supervision order at that time. There was evidence that Mr Corbett had reflected on the need to comply with the conditions, had engaged well with his treating psychologist and was motivated to comply with the supervision order if released. In these circumstances Corboy J amended the original supervision order.
8 Mr Corbett was released on the amended order on 24 March 2014. One of the amendments was to a condition requiring him not to be in the presence of females who were consuming alcohol. Corboy J amended this condition in order to make it more readily understandable by Mr Corbett.
9 On 16 April 2014 Mr Corbett again breached the conditions of the amended supervision order. He was charged with three offences contrary to s 40A(1) of the DSO Act. In addition, an application was made by the DPP for an order under s 23 that he be indefinitely detained. On 15 May 2014 he pleaded guilty to the three charges. The offences involved breach of a curfew condition, being in the presence of a female that he knew to be intoxicated and possessing and using alcohol. On 27 June 2014 he was sentenced to a total effective sentence of 8 months' imprisonment backdated to commence on 17 April 2014 when he first went into custody. The application under s 23 was not dealt with at that time as he sought that it be adjourned to a later date to allow him to engage with a psychologist while serving his sentence.
10 On 25 November 2014 I heard the s 23 application. I concluded that if Mr Corbett was again released on a supervision order there was a significant possibility that he would not comply with the conditions of that order and that a breach would involve behaviour that posed a significant risk of further serious sexual offending. I was not satisfied that the community would be adequately protected if he was released on a supervision order. Accordingly I ordered that he be indefinitely detained in custody for control, care and treatment pursuant to s 23(1)(b) of the DSO Act: Director of Public Prosecutions (WA) v Corbett [No 3].
Evidence on this annual review
11 At the hearing of this review the DPP tendered a book of materials. There was no objection to the tender. The book included the following:
(1) an individual management plan approved on 16 July 2015;
(2) a psychiatric report by Dr Sam Febbo dated 23 November 2015;
(3) a treatment progress report by Dr Ben Bannister, a forensic psychologist with the Forensic Psychological Service of the Department of Corrective Services dated 2 December 2015; and
(4) a community supervision assessment by Ms Julie Dabala, a senior community corrections officer with the Department of Corrective Services dated 8 December 2015.
12 Dr Febbo and Dr Bannister gave oral evidence at the hearing. Ms Dabala was ill and Ms Jane Henshall gave evidence in her place.
13 Mr Corbett elected not to give or adduce any evidence on the application.
Treatment progress
14 Mr Corbett had some initial psychological counselling in 2012 and 2013. This recommenced in January 2014 after he was imprisoned for contraventions of the supervision order. With one hiatus, counselling continued until shortly before the last hearing. Following that hearing Mr Corbett sought a transfer to Roebourne Regional Prison. He reportedly explained that this was because he wanted to facilitate family visits and also wanted a 'breather' from psychological treatment.
15 Approval to transfer to Roebourne for a six month period was granted. The intention at that time was that Mr Corbett would return to Casuarina Prison and recommence individual psychological counselling after that period. The transfer was approved on condition that he would work with a senior community corrections officer to identify potential community supports and family contacts.
16 Subsequently a decision was made that Mr Corbett would remain in Roebourne until these review proceedings in order to give him the opportunity for family visits and to identify community supports, with the objective of a possible release into the Pilbara area. Efforts were then made to source a psychologist to engage in individual psychological counselling with him at Roebourne.
17 On 16 September 2015 Mr Corbett commenced counselling with a departmental psychologist, Ms Catherine Matringe. He and Ms Matringe agreed to fortnightly sessions and as at 2 December 2015 six such sessions had been conducted.
18 The counselling sessions have identified issues relevant to Mr Corbett's outstanding treatment needs. The initial sessions focused on his negative attitude towards the Sex Offender Management Squad (SOMS) of the WA Police. He tended to blame SOMS for the breaches and for making his release on the supervision order more stressful. Later sessions have addressed factors including cannabis use, the impact of the DSO reporting requirements on his psychological wellbeing, difficulties he experienced with people's reactions towards him as a known sex offender and his view that he had developed paranoid beliefs around feeling he was continually doing something wrong. Ms Matringe focused on strategies to overcome stressors on release and on techniques for him dealing with unhelpful modes of thinking.
19 The counselling was interrupted in late October 2015 because Mr Corbett was transferred to Casuarina so that he could attend interviews for the purpose of the preparation of reports for this hearing. Upon his return to Roebourne the sessions with Ms Matringe continued and focused on exploring the relationship between his thoughts, feelings and behaviours. Ms Matringe felt that he understood that thoughts influenced feelings and behaviours, however she noted that he had difficulty talking about negative thoughts and feelings. This may have been due to a reluctance to portray himself in a negative light. He reported that when released on supervision he had felt overwhelmed by the amount of time that he spent on public transport attending mandated appointments. He recalled feeling lonely because he was released in Perth and was unable to contact family members for financial and emotional support. He had concerns about his interactions with SOMS and his inability to secure accommodation.
20 When interviewed by Dr Bannister, Mr Corbett spoke positively about his contact with Ms Matringe. He also discussed the breaches in 2014, stating that he had found life in the community difficult and struggled with issues such as family contact and finances. He said that the condition that prohibited him being in the company of intoxicated people was difficult as he would often find his family members drinking in public parks.
21 In early September 2015 Mr Corbett was found guilty of a prison offence after returning a positive urinalysis result for cannabis. He told Dr Bannister that he had used the drug to self-soothe after being told that a nephew had died. He had lost privileges and a position as a prison mentor as a result of this offence. He also told Dr Bannister of an incident in which he had lured another prisoner away and assaulted him. He said that this incident had not been reported to the prison authorities.
22 Dr Bannister concluded that Mr Corbett and Ms Matringe appeared to have begun the development of a positive therapeutic relationship. However there were a number of outstanding treatment needs. The incident in prison involving a violent confrontation with another prisoner suggested a tendency to resolve issues in an anti-social fashion. There was also concern that he had used cannabis to manage stress. This indicated that he had treatment needs in relation to drug and alcohol use, stress management, conflict resolution and problem-solving skills. He had some lack of insight into risk factors relevant to his successful management. His relapse prevention and stress management strategies were simplistic and he was unwilling to consider what he might be able to be learn from his past behaviour. This had the potential to make management in the community more difficult. Continuing psychological counselling was likely to be needed whatever the outcome of this hearing.
23 In oral evidence Dr Bannister said that Ms Matringe was from the Adult Community Psychological Service, rather than the Forensic Psychological Service (which usually provides psychological counselling to DSO's). This was because the Forensic Service does not attend regional prisons. However, he said that Ms Matringe had experience dealing with sexual offenders and there was an oversight process to ensure the Forensic Service was informed of progress.
24 Dr Bannister was asked about the options for future counselling. He said that continued counselling with Ms Matringe at Roebourne was the best option as Mr Corbett had established a positive therapeutic relationship with her. He said if Ms Matringe considered it was needed the counselling could increase to weekly appointments. Funding for this would be available if necessary.
Psychiatric evidence - Dr Sam Febbo
25 Dr Febbo has assessed Mr Corbett in the past. He prepared reports for the initial Division 2 hearing in 2012 and for subsequently hearings in 2014. For the purposes of this hearing he interviewed Mr Corbett on 1 November 2015.
26 Mr Corbett was cooperative with Dr Febbo and reported having settled into life at Roebourne Prison, though he had a number of disappointments. He said he had been distressed when his nephew died in July. He was also surprised when he was told that he could not have visits from family members who attended with children. He said his response to this was to 'knock all my visits back' and he now only communicates with family members by telephone from time to time. He said that around a month ago he had made a disclosure of his offending and his status in prison to members of his family. He said that this was upsetting both to them and himself. There were some reasons to doubt this information, particularly because it later came to light that Mr Corbett had had no visits rather than stopping them for the reasons he gave.
27 Mr Corbett told Dr Febbo that he addressed his drug and alcohol use, including by attending a programme of three months duration in August. This too was incorrect, though he had begun to address substance abuse issues with Ms Matringe. He also told Dr Febbo that he did not 'do drugs' anymore. That response was misleading because he did not refer to the prison conviction for cannabis use.
28 Whilst Mr Corbett told Dr Febbo that he now accepted the necessity and the fairness of the conditions on his previous supervision order, he expressed some frustration at the limitations those conditions had placed upon his life. He reported that he had been working with his psychologist on issues relating to alcohol use and his attitude to SOMS. Towards the end of the interview he said that he was the type of person that takes time to learn rules but that he now believes he has 'learnt them'.
29 Dr Febbo obtained additional information from Ms Lorraine Beadle, the senior community corrections officer who had been meeting with Mr Corbett on a fortnightly basis whilst he was at Roebourne. Ms Beadle said that on a number of occasions when she had interviewed Mr Corbett he had taken control and made the discussion go in a direction that she did not wish to pursue. A constant theme during their sessions was that he had not taken responsibility for his past conduct and tended to externalise blame.
30 Dr Febbo states that the history provided to him by Mr Corbett indicates that the most recent period of incarceration has had a significant impact on him. He has increased his awareness as to the seriousness of the requirements of a supervision order and that the consequences of a breach are most likely to be a return to prison. He was able to describe, albeit in relatively simple terms, how he could use agencies to assist him in not breaching an order and remaining in the community. His plans for the future were relatively well thought out and realistic. He came across as being motivated to succeed and remain in the community as the personal cost of further detention increases. However, those impressions were later undermined when it became apparent that Mr Corbett had given unreliable information in a number of respects.
31 Dr Febbo did express concerns about the history that Ms Beadle obtained from Mr Corbett. That history included a previously undisclosed incident of violence towards a woman who was pregnant with his child. The return to substance abuse in situations that are associated with frustration also suggests a maladaptive response style. The limited acceptance of responsibility and the harbouring of resentment towards a previous psychologist were also matters of concern. Dr Febbo said that the information provided by Mr Corbett to Ms Beadle suggested that there had been very limited gain during the last period of incarceration. However if Mr Corbett is not released on a supervision order there is a very real possibility that he will disengage from therapeutic intervention.
32 Dr Febbo concluded that Mr Corbett remains at high risk of further sexual offending if he is not subject to a detention or supervision order. Whilst the information provided to Dr Febbo suggests that his level of risk can be managed by a supervision order, Dr Febbo was particularly concerned with the history that Ms Beadle obtained over the course of her 18 meetings with Mr Corbett. This information suggests to Dr Febbo that Mr Corbett's risk of breaching his supervision order is particularly significant thus raising his risk of reoffending in the community.
33 In oral evidence Dr Febbo said that fortnightly psychological counselling was probably not adequate and consideration should be given to increasing it to weekly. The counselling needs to include an acknowledgement by Mr Corbett of his psychopathic traits, needs to address issues of consistency and unreliability and also issues relating to stress and substance abuse. He said that Mr Corbett was institutionalised to a degree and this was likely to get worse if he remained in prison. In addition to counselling other things which may assist in reducing risk factors are encouraging additional contact with family, removing the restriction on visits by people with children and allowing for graduated release (day release, home visits and work parties). As to the prohibition on visits by children, Dr Febbo said this was not justified by the criminal history, which showed no sexual interest in children.
Community supervision assessment
34 In Ms Dabala's report she states that Mr Corbett has not received visits from any family members whilst at Roebourne Regional Prison. He has given various reasons why this has not occurred, including 'sorry business' and transport issues. However he did inform Ms Dabala that he continued to maintain telephone contact with several family members.
35 When interviewed on 3 November 2015 Mr Corbett said that his family had not visited him because he had requested them not to due to the prison placing a restriction on visits with children. He said that his sister had five children and would be unable to visit him without them. In an effort to assist him in re-establishing family contacts a video link-up was organised for 11 August 2015. The only family member who was able to attend on this occasion was his sister. At this time his sister was informed of the full extent of his offending. It was evident that she had only limited prior knowledge of this offending. She was also advised of the possible requirements and obligations of a supervision order. Whilst initially appearing overwhelmed, she expressed a willingness to support Mr Corbett in the community. However this does not appear to extend to the provision of accommodation.
36 Other possible accommodation options in the Pilbara have been explored. A placement at the Yandeyarra Community has not been progressed because the Chairman of that community has advised that the nature of Mr Corbett's offending excluded an application being put forward to the community council for consideration. Mr Corbett identified Nullagine and Jigalong communities as alternatives. His grandfather is the Chairperson at Jigalong. When contacted his grandfather advised that he did not think that Mr Corbett would be able to be effectively monitored at Jigalong and that his prime concern was other community members who currently reside there. His grandfather did not feel it was in the best interests of the Jigalong Community for Mr Corbett to reside there. The Five Mile Community at Nullagine was also considered unsuitable as unregulated alcohol use is common and there are reports of young females being supplied with alcohol. That community is not regularly patrolled by police and is considered by them to be a risk area for anti-social conduct, in particular heavy alcohol use.
37 On 26 June 2015 Mr Corbett made an application to the Department of Housing for accommodation in the Pilbara. He remains on the wait list. He has concluded that Perth is his only option for release into the community. He remains a client of Outcare Services, who will assist him with reintegration support if he is released in the Perth metropolitan area. However Outcare are unable to provide him with accommodation at this time due to having no vacancies. There is no information as to when this might change.
38 Ms Dabala's report notes that Mr Corbett will need to engage in counselling to address reintegration into the community, acquire life skills, coping strategies for stress and loneliness, risk management strategies for substance use as well as violent and sexual offending behaviour and appropriate management of relationships including intimate relationships.
39 Ms Jane Henshall, who is also a senior community corrections officer, said that Mr Corbett, like all DSO detainees, was treated in the same manner as regular prisoners. DSO detainees are subject to the same disciplinary regime and loss of privileges. They are required to pay for their own phone calls and any entertainment expenses or art supplies. In the event that a prison offence is committed the impact that a loss of privileges may have on a DSO's treatment is not considered.
40 Ms Henshall said that within six to eight weeks of an order for detention being made a case management meeting is held to formulate a plan for the following 12 months. The plan is noted, but not reduced to a formal document. This seems unfortunate because without such a document it is difficult to know what the goals are and what practical steps are intended. A plan that set out such things and a timetable for their achievement would be a useful measure of progress at the end of the year. The individual management plan does not meet these objectives - it is a brief format document designed for prisoners and unsuited to the often complex and detailed needs of DSO's.
Findings
41 It is clear on the evidence that Mr Corbett remains a serious danger to the community. This was not disputed at the hearing. The issue was whether the risk of reoffending can be adequately managed in the community on a supervision order.
42 There has been some progress in the last 12 months in regard to insight and motivation. There is also a developing and constructive relationship with a psychologist. However, Mr Corbett has significant unmet treatment needs and the counselling is at a relatively early stage. His psychopathic traits are unacknowledged and he has proven to be an unreliable historian. There is a risk that if not released he will lose his motivation and disengage from counselling. However that risk cannot justify release unless the risk of further sexual offending can be reduced to a reasonably acceptable level.
43 Mr Corbett's past history of breaching the conditions of a supervision order shows the difficulties he has with compliance. The risk of a future breach is not in itself sufficient to justify continuing detention. The risk with which the DSO Act is concerned is the risk of committing further serious sexual offences. However the ability to manage that risk in the community depends on controlling the risk factors that are addressed by the conditions of a supervision order. The conditions that have previously been breached by Mr Corbett were highly relevant to the controlling of that risk.
44 The reports of Dr Febbo and Dr Bannister indicate that whilst Mr Corbett has the motivation to comply with conditions and has expressed an understanding for the consequences of a breach, the stress factors, lack of life skills and modes of thinking that led to those previously breaches remain largely unaddressed. In these circumstances there is a very significant possibility that if released he would again engage in behaviours that in the past have contributed to his offending and that raise the risk of further serious sexual offences.
45 To the extent that there has been any reduction in the risk of reoffending it is minor. The risk of further serious sexual offences being committed by Mr Corbett remains high. Efforts to manage and reduce that risk including psychological counselling and developing family supports have not significantly altered the position at this stage. Furthermore there is no accommodation available for Mr Corbett at present. Options for accommodation in the Pilbara appear to have been exhausted. There is no available accommodation in Perth, and release into the metropolitan area has previously been unsuccessful due to the isolation and stress that he has experienced. If he is to be released again in the metropolitan area he would need better community supports and improved life skills.
46 The individual management plan in respect of Mr Corbett is very brief and largely consists of historical information. The section dealing with rehabilitation and reintegration merely notes that he is to be assessed for treatment by the DSO psychology team and recommended for adult basic education and driver assistance. He is receiving psychological counselling. A far more detailed and properly resourced plan is required to ensure that his individual needs are addressed. Not to do this would be to fail to provide the treatment that the court's order for detention requires.
47 An individual treatment plan for the next 12 months needs to encompass the following:
(1) Continued psychological counselling. This should preferably be with Ms Matringe, with whom Mr Corbett has established a positive relationship. The counselling should address the sexual offending, the causes of the breach offences, issues of stress, substance abuse and psychopathy (which affect consistency and reliability);
(2) Consideration of whether counselling should be increased to weekly sessions. This should be proactive consideration, rather than merely waiting for Ms Matringe to raise it. The significant range and depth of matters to be dealt with may justify more frequent counselling;
(3) Consideration should be given to participation in a substance abuse programme. This issue should be addressed in counselling, but a programme may be an adjunct to this and add some treatment value;
(4) Education and work skills should be developed by providing suitable education and training;
(5) All possible accommodation options should be identified as soon as possible so that they can be fully explored and if an option becomes available the information can be provided to Mr Corbett's legal representative and an extraordinary review sought (if otherwise justified);
(6) Steps be taken to facilitate greater family contact. The impediments to visits should be considered, including whether the prohibition on children visiting is justified;
(7) There should be a process for ensuring that Mr Corbett's management in prison takes into account that he is there for, amongst other things, treatment. Accordingly, administrative decisions regarding payment, security rating and privileges should take into account the impact on the treatment objectives; and
(8) Ideally, consideration should be given to increasing visits over time, allowing day release or work party participation. Presently these options are limited because all DSO's are treated as medium security prisoners (regardless of how long they are detained or what progress they make). This is a significant impediment to establishing a meaningful gradual release plan. The rules should be reviewed. If they change then the treatment plan should incorporate the matters I have referred to.
48 There have been some benefits in the move to Roebourne Prison. Mr Corbett initially took on a leadership position and was seen as playing a positive role in the prison, but he lost that position after the cannabis related offence. He has also reported being more content because he is closer to his country and family. He has also engaged in some art projects at the prison. These positive outcomes should be taken into account in deciding where he should be placed. At least at present, continuing at Roebourne seems the best option. However, that should not result in any delay or failure to prepare and act upon a treatment plan.
Conclusion
49 I am satisfied that Mr Corbett 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, at least in regards to motivation, but 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.
50 For those reasons, I expressly decline to rescind the continuing detention order.
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