Director of Public Prosecutions (WA) v Latimer [No 4] - [2011] WASC 125

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- LATIMER [No 4] [2011] WASC 125

CORAM: EM HEENAN J

HEARD: 10 MAY 2011

DELIVERED : 10 MAY 2011

PUBLISHED : 13 MAY 2011

FILE NO/S: MCS 26 of 2006

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
EDWARD WILLIAM LATIMER
Respondent

Catchwords:

Criminal law - Dangerous sexual offenders - Annual review of continuing detention order

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Detention order continued

Category: B

Representation:

Counsel:

Applicant: Mr J Mactaggart
Respondent: Mr D J McKenzie

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Legal Aid (WA)

Case(s) referred to in judgment(s):

Director of Public Prosecutions WA v Latimer [No 3] [2010] WASC 109
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Latimer [2007] WASC 272
The State of Western Australia v Latimer [No 2] [2009\]WASC 132

EM HEENAN J: The court is sitting today to conduct the annual review of the continuing detention order of the respondent, Edward William Latimer, under the Dangerous Sexual Offenders Act 2006 (WA). He is presently the subject of a continuing detention order made originally by Murray J on 30 October 2006. There has been a series of annual reviews since then. The details of the original order, and the reasons for it, are contained in The State of Western Australia v Latimer [2006] WASC 235, a decision of Murray J, as I have already mentioned.
The first annual review resulted in a decision of McKechnie J, on 1 November 2007, The State of Western Australia v Latimer [2007] WASC 272. On that occasion the continuing detention order was continued.
The next annual review was by Blaxell J on 1 May 2009, The State of Western Australia v Latimer [No 2] [2009] WASC 132. On that occasion, his Honour expressly declined to rescind the continuing detention order, being satisfied that Mr Latimer then remained a serious danger to the community.
The next annual review was before McKechnie J on 7 May 2010, Director of Public Prosecutions WA v Latimer [No 3] [2010] WASC 109. On that occasion his Honour again expressly declined to rescind the continuing detention order.
It is necessary to quote from McKechnie J’s decision in May of last year. His Honour referred to the history, and then to the most recent reports available from Dr Wynn Owen and Dr Capel and said:
The evidence, particularly the evidence of Dr Wynn Owen, satisfies me that the respondent does remain a serious danger to the community unless either detained or released only on supervision.
His Honour continued:
That brings me to the second decision which must be made. I am greatly encouraged with Mr Latimer’s progress since I saw him several years ago. It seems to me he has been working very hard to put himself into a position where the community might contemplate his return into it, albeit under supervision.
His Honour then said:
I think he has recognised that he is not quite there yet. Clearly the efforts of Dr Capel and Ms Minshall, and other people at Karnet, have been directed to assisting him.
It would seem that the next big step, which can only be taken when Mr Latimer is ready to take it, is a move into the self‑care unit which will demonstrate the degree to which he is able to interact with people on a daily basis and in a domestic setting. When that occurs, then efforts can be directed as to his eventual release on supervision.
And his Honour concluded by saying:
Mr Latimer’s efforts so far are to be congratulated, but at this stage, having regard to the paramount consideration which is the protection of the community, the only order I can make is to expressly decline to rescind the continuing detention order.
That was the position in May 2010 and Mr Latimer continued in custody at Karnet Prison, a low security prison, and was subject to a series of courses, mentoring, counselling and supervision. The evidence before me today indicates that those responsible for his supervision remained optimistic about his state of progress, but for reasons for which there is no real explanation, there was a deterioration in Mr Latimer’s behaviour from about the middle of last year. He became more isolated within the prison, more irritable and angry. He complained of resentment due to the apparent behaviour of other prisoners whom he considered were teasing him. He did not make the transition to the self‑care unit which was part of the plan and then he became engaged in a series of relatively minor, but nevertheless significant, prison disciplinary incidents. They are described in the materials which are before me, and they occurred respectively on 7 May, 30 June, 30 November and 1 December 2010.
Perhaps most concerning of all was his behaviour to female staff in the prison who were counselling him and endeavouring to assist him. It was the view of those reviewing his conduct and of the psychologist and psychiatrist who have most recently reported to the court that he was sexualising his relationship, or his supposed relationship, with the lady concerned and posed a threat to her. As a result, his classification within the prison system was changed. He was moved from a low-security prison to a high-security prison as a transition towards a medium-security prison. That remains the situation at the present.
There seems to be no doubt that there has been this regression in Mr Latimer's planned programs of socialisation, although those reporting on his condition remain optimistic that with further planning and cooperation and the supervised regime which has been designed for his treatment and progress, he may yet progress to the stage where he could make a planned transition to supervised care in the community. At the present, it is accepted on all sides that that is not possible, that Mr Latimer has not reached the stage where he could be placed in the community, even in a supervised position, and that there is no accommodation which has been deemed suitable which would be available even if he were able to make that transition.
The underlying problems which have been identified now for many years continue. They are associated with antisocial personality disorder, psychopathy, frontal lobe deficits and his behaviour over the last 12 months which I have summarised. It is the opinion of Dr Wynn Owen, who has recently re‑examined him and has reported to the court, that Mr Latimer presently continues to be a potential danger to the community and that, if he were to be released, his impulsive behaviour is likely to lead to offending against women.
The opinion of Dr Wynn Owen is that associated violence may increase from that seen in previous offences because of past escalations, and that there may be a diversification of the unlawful sexual tendencies.
Dr Wynn Owen offers as an opinion that if continuing detention is recommended, a structured team approach to his management, with prison‑based and Department of Corrections program staff working closely together to achieve specific pro‑social and release oriented goals in a positive supported environment should be undertaken, and that this should lead to supervised community day release if possible, to monitor Mr Latimer’s ability to maintain his current progress outside the prison environment, and further, to assess his suitability for a longer term release.
There are a series of therapies which Dr Wynn Owen has recommended. In the opinion of Dr Wynn Owen, the report of the forensic psychologist, Dr Tamara Capel, endorsed as it is by the counselling psychologist, Ms Wendy Wager, support all of those conclusions, and the history of recent behaviour since May of last year also supports those conclusions.
It is unfortunate that there has been this regression, because Mr Latimer has been on the road towards progress. No doubt he will appreciate, and others will tell him, that despite these setbacks, renewed dedication to treatment and cooperation is likely to prove beneficial and may eventually lead to staged release into the community.
It is obvious, however, that that stage has not yet come and that it would be an unacceptable and serious danger to the community if he were to be released at present. I have not on this occasion set out all the details of Mr Latimer’s background, or his history of offending, or the findings which have been made in relation to his disabilities. I note, however, that these are very fully described in the reasons of Murray J, of October 2006, which I have already cited, particularly [26] ‑ [47]. At [48] of those reasons, Murray J said, speaking as his Honour was in 2006, that:
There is abundant evidence detailing the history of escalating seriousness of sexual offending. The pattern of offending behaviour gives serious cause for concern as to the danger presented to the community by the respondent. He has been unable to render himself suitable to participate in any program of rehabilitation simply because he continues to deny his offending behaviour. In my opinion, there is abundant cogent evidence which satisfies me to the requisite high degree of probability that the respondent, if not subject to a continuing detention order or supervision order, would commit a serious sexual offence. I find that he is a serious danger to the community within the meaning of s 7 of the Act.
Unfortunate though it is to have to reach this conclusion, I am satisfied that that remains the condition at present but, as I have said, there is prospect for progress, despite the setbacks of the last 12 months. In the circumstances therefore, I consider that the only order which the court can make is to refuse to rescind the continuing detention order.
The result is that Mr Latimer will continue to be confined under the provisions of the Dangerous Sexual Offenders Act2006 (WA) and will be subject to review again not later than 12 months from now, although there may be opportunities for an earlier review.