Director of Public Prosecutions (WA) v Latimer [No 5] - [2012] WASC 188

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- LATIMER [No 5] [2012] WASC 188

CORAM: HALL J

HEARD: 24 MAY 2012

DELIVERED : 24 MAY 2012

PUBLISHED : 6 JUNE 2012

FILE NO/S: MCS 26 of 2006

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

Catchwords:

Dangerous sexual offenders - Annual review - Whether respondent remains serious danger to community - Whether release on conditions viable - Continuing detention order

Legislation:

Nil

Result:

Respondent found to remain a serious danger to community
Continuing detention order expressly not rescinded

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
Director of Public Prosecutions (WA) v Latimer (No 4) [2011] WASC 125
The State of Western Australia v Latimer (No 2) [2009] WASC 132
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Latimer [2007] WASC 272

HALL J: The respondent, Edward William Latimer, is the subject of a continuing detention order originally made by Murray J on 30 October 2006 pursuant to s 17 of the Dangerous Sexual Offenders Act 2006 (WA): The State of Western Australia v Latimer [2006] WASC 235.
There have been a series of annual reviews conducted since the order was originally made. Those reviews have been as follows:
1.On 1 November 2007: The State of Western Australia v Latimer [2007] WASC 272;
2.On 1 May 2009: The State of Western Australia v Latimer (No 2) [2009] WASC 132;
3.On 7 May 2010: Director of Public Prosecutions (WA) v Latimer (No 3) [2010] WASC 109; and
4.On 10 May 2011: Director of Public Prosecutions (WA) v Latimer (No 4) [2011] WASC 125.
At the third annual review McKechnie J noted that there were some encouraging signs of progress. However, at the last annual review conducted by E M Heenan J on 10 May 2011, his Honour noted that there had been a regression in Mr Latimer's planned programmes of socialisation. However, his Honour noted that there was still a prospect for progress despite the setbacks of the previous 12 months.
Since the last annual review a neuro‑psychological assessment has been undertaken. This assessment revealed what was said to be a quite striking profile of deficits with respect to Mr Latimer's capacity to process, interpret, integrate and manipulate information. He was found to be extremely slow to provide visual‑motor responses and there were indications of dyspraxia as well as more generalised executive dysfunction. There was said to be a marked impairment in his capacity to process faces and emotional expressions. Mr Latimer's test results were not considered to be consistent with a concussion injury sustained in his teenage years. Rather, it was thought to be more likely that he suffers from a non‑verbal learning disorder, a developmental learning disability arising in childhood. This was thought to have been exacerbated by excessive drinking throughout his adolescence, 20s and early 30s.
The neuro‑psychological report states that individuals with a non‑verbal learning disorder can experience difficulty in cognitive social and behavioural functioning. Perspective and empathy can be compromised. Imagining consequences or creating hypothetical scenarios can be challenging and this makes such people seem like 'concrete thinkers'. Thinking and behaviour appears to be rigid with a tendency to fall back on established familiar patterns. Frustration can escalate quickly.
The report concludes that the existence of the non‑verbal learning disorder together with Mr Latimer's personality traits and issues of insight and denial present challenges with respect to identifying suitably appropriate treatment programmes. Whilst he is considered to have the cognitive capability of participating in treatment programmes, his willingness and ability to apply newly learnt information needs to be closely monitored.
The report sets out a number of strategies for maximising Mr Latimer's performance in a learning environment. These include supplementing group sessions with individual instruction, avoiding the need for Mr Latimer to take written notes, placing him at the front of a room where distractions will be minimised, reducing situations where emphasis is placed on visualisation of hypothetical scenarios, 'labelling' feelings, emotions and social gestures, continual checking of his understanding and reinforcement by the use of routines and situations that are predictable.
The neuro‑psychological report is dated 19 April 2012. It provides some explanation for the difficulties that Mr Latimer may face in engaging with and realising the benefits of treatment programmes. It provides some avenues for varying or supplementing the way in which programmes are delivered to Mr Latimer that may increase the likelihood of beneficial outcomes.
In November 2011 a clinical psychologist commenced working with Mr Latimer on a monthly basis, increasing to fortnightly from January 2012. It was in this context that the neuro‑psychological assessment was commissioned. The purpose of the counselling was to prepare Mr Latimer for an intensive sex offender treatment programme during 2012. A report from a psychiatrist, Dr Peter Wynn Owen dated 15 May 2012 states that Mr Latimer has stated that he has enjoyed and benefited from the sessions with the psychologist and has expressed a willingness to participate in a sex offender treatment programme if it is offered to him.
There have been some reported incidents of adverse prison behaviour in the last twelve months. These have included possession of a pornographic video in September 2011. Mr Latimer acknowledged that the tape was found in his room and that he had watched it. When questioned by Dr Wynn Owen about this incident and his sexual drive he said that he rarely now becomes aroused.
In February 2012 there was an incident in which Mr Latimer reportedly became angry and abusive during a cell clearance. This escalated to the extent that he was handcuffed and placed in a secure area. In his interview with Dr Wynn Owen, Mr Latimer said that he did not like the manner of the officers concerned and felt he was being unnecessarily put out. He accepted that he should have remained calm and avoided the incident.
Dr Wynn Owen's report notes that Mr Latimer continues to completely deny the offences for which he was most recently convicted. This was an offence involving a sexual assault on a sleeping or semi‑conscious man in a Perth park. Dr Wynn Owen's conclusions were that Mr Latimer's presentation had not noticeable changed since he was last reviewed in 2011. He continues to deny and/or minimise his sexual offending and to display attitudes that support or condone offending behaviour. On the basis of historic factors he remains in a high risk group for likelihood of re‑offending. The findings as to cognitive problems, particularly in relation to planning and executive functions, impulsivity and inability or unwillingness to learn are additional factors which are said to increase the risk of re‑offending.
Dr Wynn Owen noted that although Mr Latimer was transferred from a minimum security prison to a more structured secure environment he has continued to have difficulties with self‑management which is evidenced through his angry interactions with prison staff. Dr Wynn Owen states that Mr Latimer's ongoing libido is demonstrated by being found in possession of a pornographic video and also expressions on Mr Latimer's part of a desire to find a sexual partner as soon as possible after being released. His post‑release plans were considered to be vague and to some extent unrealistic.
It is Dr Wynn Owen's opinion that Mr Latimer should be offered an increasingly less structured environment as he demonstrates that he can self‑manage in his current setting. However, it is thought that this may take a long time. Dr Wynn Owen concludes that whilst it is unlikely that Mr Latimer will benefit rapidly from therapeutic intervention, in either a group or individual setting, the neuro‑psychological report and engagement with the prison psychologist do suggest that such intervention is still a worthwhile endeavour.
A Department of Corrective Services' progress report dated 15 May 2012 notes that Mr Latimer has stated that he would like to participate in a group‑based intensive sexual offender treatment programme. He has previously refused such assistance. It is suggested that his willingness to participate in the programme may be indicative of a greater commitment to rehabilitation and may precipitate a greater willingness to discuss his offending behaviour in individual counselling. It is suggested that if his current level of denial presents an insurmountable barrier to programme participation that he could instead be assessed for a denier's programme.
The conclusion of the Department of Corrective Services report is that Mr Latimer has made some progress over the past six months. However, his engagement with individual counselling has only been for the last four months and further engagement is considered to be necessary in order to determine the permanency of any treatment gains. It is noted that Mr Latimer seems to have developed strategies to help manage his tendency to be verbally aggressive and that following his transfer to Acacia Prison a significant reduction in reported prison incidents has been noted. However, whilst he appears less hostile and defensive in his interactions with treating professionals he continues to deny having committed any sexual offences or having experienced any difficulty in meeting his sexual needs in an appropriate manner. This is thought to present a barrier to treatment. The goals for the next twelve months are to encourage Mr Latimer to acknowledge his offending behaviour and to develop strategies for managing that behaviour as part of a release preparation plan.
At the hearing of this review it was accepted on behalf of Mr Latimer that there had not been sufficient progress that would enable the court to rescind the continuing detention order at this stage. Whilst there has been some signs of progress in terms of engagement with counselling and improved attitude to participation in a treatment programme, it is clear that Mr Latimer remains a serious danger to the community. That danger is not one that can be sufficiently managed or minimised such as to make it appropriate that he be released on conditions.
Accordingly, for these reasons, on the hearing of this review I expressly declined to rescind the order for continuing detention pursuant to s 33(2) of the Dangerous Sexual Offenders Act.