Director of Public Prosecutions (WA) v Latimer [No 7]
[2014] WASC 229
•30 JUNE 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- LATIMER [No 7] [2014] WASC 229
CORAM: JENKINS J
HEARD: 12 JUNE 2014
DELIVERED : 30 JUNE 2014
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 will protect community - Supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17, s 33
Prisons Act 1981 (WA) s 95
Result:
Continuing detention rescinded
Supervision order made
Category: B
Representation:
Counsel:
Applicant: Ms K Robinson
Respondent: Mr D J McKenzie
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: David McKenzie Legal Pty Ltd
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
Director of Public Prosecutions (WA) v Latimer [No 5] [2012] WASC 188
Director of Public Prosecutions (WA) v Latimer [No 6] [2013] WASC 231
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
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
JENKINS J: The respondent, Edward William Latimer, is the subject of a continuing detention order made by Murray J on 30 October 2006 pursuant to s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act): The State of Western Australia v Latimer [2006] WASC 235.
There have been annual reviews conducted since the continuing detention order was first 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;
(4)On 10 May 2011: Director of Public Prosecutions (WA) v Latimer [No 4] [2011] WASC 125;
(5)On 24 May 2012: Director of Public Prosecutions (WA) v Latimer [No 5] [2012] WASC 188; and
(6)On 10 June 2013: Director of Public Prosecutions (WA) v Latimer [No 6] [2013] WASC 231.
These reasons should be read together with all earlier decisions.
Mr Latimer's progress over the eight years that he has been subject to the continuing detention order has been variable. For example, at the third annual review in 2010 McKechnie J noted that there were some encouraging signs of progress. However, at the 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 programme of socialisation but there was still a prospect for progress.
Consequently, it is notable that there has been steady, positive progress over the last three years. For example, in 2012 Hall J said that there had been 'some signs of progress in terms of engagement with counselling and improved attitude to participation in a treatment programme' [17]. In 2013 Hall J again conducted the annual review. His Honour said that in the previous 12 months Mr Latimer had continued to make gradual and slow treatment gains [3]. All the authors of the reports before his Honour noted that Mr Latimer was making positive steps. The various reports before me indicate that his treatment gains have been sustained over the past 12 months and he has made further progress.
For the purpose of this review I have received reports and heard evidence from Dr Wynn Owen, consultant forensic psychiatrist, Mr Summerton, counselling psychologist and Ms Dabala, senior community corrections officer.
Dr Wynn Owen
Dr Wynn Owen said that Mr Latimer's areas of improvement over the last 12 months include:
(1)his attitude towards others, particularly towards those in authority, and his attitude towards social interactions;
(2)his release plan, his release priorities, his willingness to work with community supports and to seek assistance; and
(3)his adjustment to the less structured environment of the Karnet Prison Farm (KPF) where he has recently been incarcerated.
Dr Wynn Owen is of the opinion that Mr Latimer's risk of serious sexual offending remains high but that there is an apparent, although not quantifiable, reduction in that risk because of the changes he has noted.
Dr Wynn Owen recommended that if Mr Latimer remains in custody, he should:
(1)have ongoing one to one counselling;
(2)be in a self‑care unit in a low security prison environment; and
(3)have supervised day release (if possible).
Dr Wynn Owen recommended that if Mr Latimer is released into the community, he should:
(1)have ongoing one to one therapy with a therapist who is known to him;
(2)have a closely monitored and highly structured activity/leisure timetable;
(3)have social training/mentoring support, initially on a daily basis;
(4)be subject to an assertive case management approach such that changes in the respondent's behaviour which indicate that he is undergoing stress will result in a multiagency reassessment of risk and the supervision and monitoring plan, in addition to regular multiagency meetings; and
(5)be considered for eligibility for the appointment of a guardian.
Mr David Summerton
In November 2011 a clinical psychologist, Dr Dylan Galloghly, commenced working with Mr Latimer on a monthly basis, increasing to fortnightly from January 2012. It was in this context that a neuro‑psychological assessment was commissioned. The results of which show Mr Latimer's cognitive deficits. These have been considered in a previous annual review. That counselling has continued until this annual review.
Dr Galloghly reported to Mr Summerton that Mr Latimer has consistently demonstrated a positive attitude to counselling and behavioural change over the course of the most recent year. He added that Mr Latimer appeared to have enjoyed the process. This is significant as previous reports have noted Mr Latimer's resistance to therapeutic intervention. Dr Galloghly also reported that Mr Latimer has had a significant reduction in behavioural problems in prison.
Mr Latimer has demonstrated an improved insight into factors which typically, in the past, resulted in behavioural acting out. However, such change should be viewed against a baseline of very limited insight. Dr Galloghly also reported a general improvement in Mr Latimer's approach to authority. He seemed to value the process of being invited to participate in case management meetings as they had led to his perception of broad collaboration with respect to his progress towards release.
Mr Latimer has been engaged with Uniting Care West (UCW) since 2009 and he is positively oriented to the role that UCW will play in assisting him to integrate back into the community. Dr Galloghly is of the view that Mr Latimer will require significant ongoing support to assist in his transition to the community.
Mr Summerton interviewed Mr Latimer at KPF. Mr Summerton reported that Mr Latimer participated freely and talked about his life and current circumstances animatedly, often using exaggerated hand gestures to illustrate his point. Mr Summerton noted that he had a tendency to externalise responsibility when he addressed the causes of various problems or difficulties over the course of his life. He has been identified to be a poor historian and it was apparent to Mr Summerton that his disclosures in the interview again contradicted information that he had offered in other contexts. However, the discrepancies were, in the main, in respect of a consistent chronology and the timing of various life events.
Mr Summerton assessed Mr Latimer's progress in two areas. The first is his readiness for release and the second is his offending issues.
Mr Latimer told Mr Summerton that he now considered that he was ready to be released and to cope beyond the confines of prison. He nevertheless expressed some fear that he would not know what to do and that he would consequently be reliant upon external support. Although he appeared somewhat ambivalent about accepting support, he intimated that he had changed his approach in terms of his overall willingness to seek help. He indicated that he was largely positively disposed to Dr Galloghly and Ms Dabala, but there remained some distrust given his belief that Dr Galloghly, in particular, wanted him to admit to offences that he said he had not committed. When Mr Summerton pressed him, Mr Latimer readily conceded that Dr Galloghly had his welfare at heart and was oriented to assist him to cope effectively in the community. Mr Latimer indicated that he would be willing to work with the Western Australian Police Sex Offender Management Squad (SOMS) upon his release.
Mr Latimer estimated that he would only require a mentor for a matter of days immediately after his release. He expressed concern that potential support people would be intrusive on the basis of information received from other prisoners. He expressed a preference for self‑reliance. On the other hand, he reported that he would engage with all identified support/supervision sources following release and told Mr Summerton that 'the more professional help, the better it will be'. Mr Latimer reported that he had become less reactive and increasingly able to walk away from conflict. He stated that he realised that the more he acted up the worse it was for him, adding that he had matured and, more broadly, quietened down. He indicated that he knew how to get his needs met without aggression.
In respect to his sex offending, Mr Latimer maintained a broad level of denial while conceding that he had committed one or two of the indecent exposure type offences. He was able to verbalise the basic self‑management plan detailed by Dr Galloghly in terms of avoiding situations that might put him at risk of further sex offences. He expressed an intention to avoid situations that might lead him to being accused (in his view, wrongly) of further offences such as avoiding frequenting public parks and associating with homeless individuals. He asserted that he would avoid drug and alcohol use, although his motivation appeared largely based on health concerns as opposed to him viewing it as a factor relevant to his offending. He was also aware that abstinence from substance use was important to the maintenance of his mental stability.
Mr Latimer also detailed some broadly defined goals for the future including a desire to help others via charitable organisations, keeping busy, gaining employment (preferably with animals) and maintaining accommodation. He knew that he tended to get into trouble when he was not occupied and, thus, bored.
He expressed ambivalence about future intimate relationships and suggested that he would proceed with caution. On the other hand, he also laughed, clicked his fingers and stated 'but I can still pick up a woman; I've still got that magic touch … at least I hope I have'.
Mr Summerton concluded that over the most recent 18 ‑ 24 month period there has been gradual and sustained improvement with respect to Mr Latimer's involvement in intervention and a commensurate change in his capacity to regulate his behaviour. There is evidence of a moderate softening in his anti‑authoritarian stance such that he is more oriented to seeking and accepting help. Mr Latimer, nevertheless, continues to value self‑sufficiency and he retains a view that any need to seek assistance is reflective of weakness. Mr Latimer has some basic insight into the relationship between lifestyle instability and criminal behaviour. He also appears to have gained improved awareness of the role that he has played in perpetuating conflict and hostile interpersonal outbursts. There is observed evidence to indicate that he has become less reactive in interactions with others. Although it is unlikely that his denial of his sex offending will change over time, he has been able to develop simple, but adequate, plans to address risk‑related situations. He has similarly been able to develop simple goals.
While historically Mr Latimer has wanted to be viewed as a person of substance by his antisocial peers, there is evidence of parallel pro‑social values. He desires to assist others less fortunate than himself and he has a developing awareness of the consequences of his actions. The overall approach regarding future intervention should be to assist Mr Latimer to develop pro‑social skills and behaviours.
Overall, while Mr Latimer's treatment progress might be considered moderate, his current gains might also be viewed as having exceeded what would have been expected of him at various stages over recent years. He is oriented to release having previously considered himself to be unprepared for release. He is relatively more amenable to intervention and supervision than has previously been the case. He has a general understanding and is accepting of the conditions that will be in place upon release, including the use of GPS monitoring, urinalysis, curfews and SOMS reporting requirements. He has an enduring relationship with UCW, although he still does not entirely appreciate the role that it will play in assisting his adjustment to the community.
Mr Summerton said that Mr Latimer will require sustained intervention, supervision and support in the course of adapting back to living in the community. In the event that he is released to the community, he will attend weekly counselling with a Department of Corrective Services (DCS) dangerous sexual offender psychologist. The initial focus of intervention will be to assist him to adjust to community living with continued focus on behavioural management as Mr Latimer encounters new situations. The psychologist will also help Mr Latimer to develop workable relationships with all arms of his supervision team.
If Mr Latimer is placed on a community supervision order, he will be managed collaboratively by the Risk Management Group. The model of service delivery utilised is one of collaborative multi‑agency partnerships to augment supervision, intervention and ongoing risk assessment. This approach involves regular information sharing and liaison between various agencies and treatment providers involved with the support and management of individuals in the community.
If Mr Latimer remains subject to a continuing detention order, his treatment needs will continue to be overseen by the DCS dangerous sexual offender psychology team. The efficacy of continued psychological treatment within the prison environment will be assessed in terms of Mr Latimer's willingness to continue and his capacity to benefit from further intervention. At this point, Mr Latimer is considered to have largely plateaued in terms of effecting change within a custodial setting. The essential challenge is to assist him to apply the changes that he has made to date to the community setting.
Ms Dabala
Ms Dabala reported that on 8 October 2013, Mr Latimer was transferred to KPF, a minimum security prison on the outskirts of the metropolitan area, in order for him to build on his independent living skills. On 19 May 2014, Mr Latimer's case manager at KPF told Ms Dabala that Mr Latimer had resettled back into KPF and appeared comfortable in his single hut. He noted that Mr Latimer was always polite and respectful and appeared to keep himself occupied with his daily work duties. The case manager commented on Mr Latimer's obvious improvement when socialising and interacting with fellow prisoners and staff members. Mr Latimer is now more willing to approach others with a view to verbalising any potential issues rather than attempting to resolve matters on his own which in the past has often led to a negative outcome for him. Mr Latimer had not come to the notice of staff anywhere near the level of his previous stay at KPF.
Departmental records indicate that Mr Latimer has not incurred any prison charges since his prison transfer. There is one incident recorded against him that occurred on 19 February 2014. According to the prison management records, Mr Latimer behaved inappropriately during a course and was asked by the tutor to leave the session. Mr Latimer said that he enjoyed the four‑week course but admitted that he had spoken out of place in the course of that day. He said he had informed the tutor that the course did not prepare prisoners for release to the community. He was of the opinion that the tutor took his outburst the wrong way, but he apologised to him. The incident occurred in the context of Mr Latimer being concerned that he may be transferred back to a medium security prison as a result of a recent prison escape by another or other prisoners
Since Mr Latimer had arrived at KPF, he had completed a Jail to Jobs course and the Life Skills programme. The Jail to Jobs course provides information and assists in developing skills on how to write a resume and apply for employment. The Life Skills programme includes two half days per week over a four‑week period and covers such topics as proof of identity, Centrelink, budgeting, bank accounts, dealing with change, communication/coping skills, anger management, relationships and family. Mr Latimer has also completed the two‑day Gatekeeper Workshop that includes information on suicide risks. Mr Latimer is currently enrolled in a Certificate III Cleaning Operations Traineeship which can be completed in the community should he be released on a supervision order.
Ms Dabala completed a proposed community supervision plan. I will detail its content under the headings used by Ms Dabala.
Accommodation
Mr Latimer has confirmed accommodation for a period of 12 months at a home unit in suburban Perth which is provided under the Dangerous Sexual Offender Supported Accommodation Programme. The proposed accommodation is located near public transport. Within 2 km of it there are a number of shops, parks, a hospital, schools, licensed premises and liquor outlets.
The nearest 24‑hour police facility is Fremantle Police Station and the approximate response time, depending on local tasking priorities, is estimated at 15 minutes.
Mr Latimer has been on the Department of Housing waitlist for housing in the north city zone since 2007. Mr Latimer could transfer his application to another zone in order to secure permanent housing. UCW would assist Mr Latimer to negotiate his housing situation with the Department of Housing prior to his 12‑month tenancy expiring.
Community support
Mr Latimer would be supported by UCW who will assist him with his reintegration back into the community for a period of up to 18 months. UCW workers have been consistent visitors to Mr Latimer since April 2009. It has established a positive and supportive relationship with him. It is fully aware of his previous lifestyle of homelessness, his offending history, his cognitive issues and personality style.
UCW says that it will assist Mr Latimer by furnishing his accommodation, transporting him to appointments with Centrelink, SOMS, adult community corrections and Medicare and, in a sense, will act as mentors to him.
Since Mr Latimer's 2013 annual review, attempts have been made to source a private mentor, but these attempts have been unsuccessful. Mr Latimer does not have any other supports in the wider community. After a discussion with Dr Wynn Owen, Ms Dabala has commenced an application to the State Administrative Tribunal for the appointment of an administrator to assist Mr Latimer to manage his financial obligations.
Employment
Mr Latimer told Ms Dabala that it was his intention to continue with his Cleaning Operations Traineeship should he be released into the community. Mr Latimer has completed Certificates I and II whilst he has been in custody. He has a White Card permitting him to work on building sites and in a commercial kitchen. Until such time as Mr Latimer commences employment, he will be eligible for financial support from Centrelink.
Victims
The Victim Offender Mediation Unit informed Ms Dabala that it has little information on the whereabouts of Mr Latimer's victims. However, of the victims that are not deceased, there are no victims within the area where Mr Latimer would live.
Behaviours to be managed
Ms Dabala raised for consideration Mr Latimer's stance of denial of his sexual offending, his previously diagnosed medium to high levels of psychopathy, his borderline intelligence, his antisocial personality disorder and his history of alcohol abuse as behaviour that would require managing in the community. Ms Dabala also referred to Mr Latimer's previous offending occurring in public places as a matter which would need to be managed.
Strategies to manage offending behaviours
Ms Dabala reported on the number of strategies that could be employed to manage Mr Latimer's behaviour if he was in the community on a supervision order. She noted that if he was released to a supervision order, he would be closely managed and supervised by the members of the local Risk Management Group. She said that members of this group include, but are not limited to, police officers from the SOMS, DCS community corrections officers, management staff from the DCS Public Protection Unit and DCS dangerous sexual offender psychologists.
In addition, the following strategies would be employed:
(1)Due to Mr Latimer's history of alcohol abuse since the age of 12, it is recommended that he be made subject to regular and random breath testing by Western Australian police and a condition that prevents him possessing, using or being under the influence of alcohol;
(2)In light of Mr Latimer's admission that he has used methylated spirits as a substitute for alcohol, those involved in his management would need to be aware of this. The police are investigating whether methylated spirits can be detected by breath testing;
(3)Given Dr Wynn Owen's recommendation for ongoing individual therapy and because Mr Latimer is disqualified from attending an intensive sex offender treatment program due to his denial of his offending, there should be ongoing counselling with his dangerous sexual offender psychologist;
(4)Given Dr Wynn Owen's recommendation for assertive case management, the case management team will need to monitor Mr Latimer's behaviour and be prepared for a rapid multi‑agency reassessment of Mr Latimer's risk, supervision plan and monitoring plan;
(5)In order to provide Mr Latimer with stability and structure when first released, a nightly curfew is recommended; and
(6)Global positioning system (GPS) tracking is recommended to allow the DCS to monitor proposed curfew requirements, identify exclusion and inclusion zones and provide improved information to guide the case management process. For example, exclusion zones would be made around liquor outlets, public hotels and any other outlet where alcohol is sold within close vicinity to Mr Latimer's residence. Monitoring of his movements would provide information should he access such facilities in other areas.
Ms Dabala attached to her report proposed supervision order conditions. The proposed conditions are attached to these reasons.
The conditions together with the supervision by the local Risk Management Group would provide close management and supervision of Mr Latimer for the period of his supervision order.
Oral evidence
Dr Wynn Owen gave evidence that Mr Latimer's priorities on release appear considerably more realistic than a year ago. In Dr Wynn Owen's view, Mr Latimer understands the importance of settling into the monitoring and supervision regime. He has accepted that he will need to be working with other people and accept the help of others. He seems to be aware that that includes ongoing psychological counselling and that he will be interviewed regularly by SOMS. Mr Latimer is also aware that UCW would provide him with regular support.
Dr Wynn Owen also said that Mr Latimer was able to articulate plans for his release which indicated that he was aware that boredom and having too much time on his hands were things that he had to manage.
Dr Wynn Owen is of the view that in an ideal world there would be a facility between prison and the community where a dangerous sexual offender like Mr Latimer could spend time under supervision, but also to have a degree of freedom that enabled him to have a degree of independence. However, this is not available and Dr Wynn Owen is of the view that the three half days of support per week that UCW is offering to Mr Latimer is a very positive step. He said that it would help with Mr Latimer's reintegration into the community and reduce the stress of reintegration. Dr Wynn Owen's preference would be for Mr Latimer initially to see someone daily. However, what was being offered to Mr Latimer was better than he had seen in many cases in the past.
Dr Wynn Owen said that during his most recent interview with Mr Latimer, he was much more prepared to discuss his offending even though his denial remained. Dr Wynn Owen said that, during his most recent interview Mr Latimer was able to talk about his past offending without becoming angry, for the first time since Dr Wynn Owen had commenced seeing him in 2008.
Dr Wynn Owen emphasised that whilst Mr Latimer's adjustment to KPF was a positive step, there was a big difference between a prison farm and the community. Dr Wynn Owen said that it had to be acknowledged that going from prison to the community would be a big step and a bigger one than Mr Latimer had made to date. This is particularly as Mr Latimer has not had the opportunity to demonstrate that he can manage day to day life skills, such as shopping, cooking and banking. These tasks would be difficult for anybody who had been in custody for as long as Mr Latimer, but they are potentially much harder for Mr Latimer because of his intellectual difficulties.
Dr Wynn Owen said that if Mr Latimer was released on a supervision order and he became stressed, he may revert to his previous pattern of managing stress. That would be that he would not seek support and he would start to return to patterns of going out and wandering. He may recommence drinking alcohol. He would have adverse interactions with other people which would result in verbal abuse and/or physical violence. His risk of sexual offending would be increased by a level of stress or distress.
Dr Wynn Owen said that a return to use of drugs and alcohol, isolation in the community, boredom, negative interactions with others and the transition from prison to the community may increase his risk of serious sexual reoffending. Counsel for the Director of Public Prosecutions (DPP) asked Dr Wynn Owen whether it was his view that these risks could be contained in the community at this point of time. Dr Wynn Owen responded that there are a number of strategies that will reduce Mr Latimer's risk. The strategies mentioned by Dr Wynn Owen were monitoring, counselling, supervision by UCW, GPS monitoring, a curfew and exclusion zones.
Dr Wynn Owen would have liked to have seen a mentor appointed to Mr Latimer when he was released into the community, but his view appeared to be that given the assistance from UCW, supervision from a community corrections officer and ongoing counselling, Mr Latimer would have an acceptable level of supervision and assistance. Although, Dr Wynn Owen acknowledged that because Mr Latimer has not been in the community for such a lengthy period of time it is still difficult to know how he will manage life in the community. Dr Wynn Owen is of the view that if Mr Latimer is released into the community on a supervision order it should be for a period of five years.
It is clear that Dr Wynn Owen would prefer a situation where there was a staged release of Mr Latimer into the community with Mr Latimer progressing through regimes of lessening control to ones with more freedom. However, this is not possible under the statutory regime. A dangerous sexual offender can either be subject to a continuing detention order in which he is imprisoned, or subject to a supervision order in which case he is released into the community, albeit on conditions.
Dr Wynn Owen is of the view that if Mr Latimer spends another year in custody and there is no real change to his day‑to‑day activities, then there would be no significant advantage in him remaining in custody.
Mr Summerton gave evidence that if Mr Latimer was released into the community, his level of supervision would be such that it was likely that any issues or potential problems would be raised with Mr Latimer and he would be encouraged to address them. Consequently, there will not be an issue about him seeking out help. Help will be given to him.
Mr Summerton said that Mr Latimer's risk in the community should be managed by ensuring that he avoids situations that have been problematic for him in the past, such as engaging with people who are homeless or itinerant in public parks and other sorts of spaces, and ensuring that he does not loiter around places such as train stations.
Mr Summerton was asked whether there would be any benefit in Mr Latimer moving from the hut he lives in at KPF to a self‑care unit at KPF. Mr Summerton said he thought that it was a marginal step, at best. He said that the self‑care regime in prison is more a privilege for appropriate behaviour than an opportunity to learn new skills. In his view, self‑care would not do anything in particular to assist Mr Latimer's reintegration into the community.
Ms Dabala said that the only difference between the hut where Mr Latimer resides and the self‑care unit is that in the self‑care unit the prisoners do their own cooking in a group of 12.
In respect to Mr Latimer's proposed place of residence, Ms Dabala said that although it was a densely populated area, there was nothing that stood out and said that it was a high risk placement.
Ms Dabala said that the accommodation would be available, as well as the support from UCW, for between 12 ‑ 18 months. It would be tapered off at about 12 months with a view to Mr Latimer having his own accommodation towards the end of 18 months. UCW are prepared to provide three half days a week of assistance to Mr Latimer. Ms Dabala had been advised on 11 June 2014 that UCW had taken on another staff member, which would allow them to put extra time into Mr Latimer. UCW also has telephone support 24 hours a day, seven days a week, so that if Mr Latimer felt that he was struggling on a weekend, he could call UCW and they would put him in touch with one of their team who had been working with him. UCW will give Mr Latimer assistance with general reintegration into the community. It will assist him to connect with Centrelink, to set up a bank account, to obtain a mobile telephone, (which is essential for GPS monitoring and DCS supervision), with shopping, to budget and contact other support agencies involved with social networks and employment. As Mr Latimer has had contact with UCW for about five years, the people he would be working with from UCW would, in general, be known to him and they would know him.
Although to date DCS has been unable to identify a mentor for Mr Latimer, if he was released into the community it would make ongoing attempts to find a mentor for him.
Ms Dabala said that the Risk Management Group meets monthly, but information can be provided to it straight after a supervision or psychological appointment, if for example an issue arises during such an appointment. There is also a case management group within the DCS Public Protection Unit. That group, discusses the conduct of each dangerous sexual offender on a supervision order, weekly. Ms Dabala said that supervision appointments with a community corrections officer could be once or twice a week if Mr Latimer needed that level of support. An appointment was not just a matter of checking in with the supervising officer. The appointments were for the purpose of establishing a relationship between the dangerous sexual offender and the community corrections officer to both assist their rehabilitation and ensure effective supervision.
The law
Section 33 of the Act states:
33.Review of detention under continuing detention order
(1)When the court, on an application made under section 29 or 30, reviews a person's detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
(2)The court may, if it finds that the person subject to the order remains a serious danger to the community, either -
(a)expressly decline to rescind the order; or
(b)rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.
(3)In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.
As submitted by the DPP, pursuant to s 7 of the Act, before finding that a person is a 'serious danger to the community' I must be satisfied that 'there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence'. Once such a finding is made, the person will necessarily and automatically be a 'serious danger to the community'.
Pursuant to s 33(1) of the Act, I must rescind the continuing detention order if I do not find that Mr Latimer remains a serious danger to the community.
If I find that Mr Latimer remains a serious danger to the community I may either expressly decline to rescind the continuing detention order or rescind the order and make a supervision order.
In determining whether to decline to rescind a continuing detention order or to make a supervision order, I should adopt the least restrictive alternative which is compatible with the protection of the public: Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297. However, pursuant to s 33(3) of the Act, the paramount consideration is the need to ensure the adequate protection of the community.
Does Mr Latimer remain a serious danger to the community?
Mr Latimer does not dispute that he remains a serious danger to the community.
In light of Dr Wynn Owen's uncontradicted expert evidence, I am satisfied that Mr Latimer remains a serious danger to the community.
Whether to expressly decline to rescind the continuing detention order or rescind the order and make a supervision order?
The DPP submits that a continuing detention order should not be rescinded. This is somewhat surprising in light of the evidence called by the DPP which is to the overall effect that given the progress made by Mr Latimer, the supervision and support he will have in the community and the strict conditions that would be placed on a supervision order, the adequate protection of the community does not require Mr Latimer to remain subject to a continuing detention order.
The DPP submits that Mr Latimer's transition from the KPF, which is very structured and does not require Mr Latimer to make many independent decisions, to a much less structured and independent environment in the community might present him with challenges that prove too complex for him and result in him relapsing into sexual offending.
The DPP acknowledges that further time in detention will offer little opportunity for Mr Latimer to further advance his preparation for re‑entry into the community, unless he is offered a place in the self‑care unit, and/or able to undertake supervised day outings.
The DPP acknowledges that neither Mr Summerton nor Ms Dabala, who are aware of the nature of the self‑care units at KPF, are of the view that placement in a self‑care unit would be of any significant advantage to Mr Latimer. That is because the self‑care unit would include a number of prisoners and any one of them could do the cooking. There would be no requirement for Mr Latimer to look after his own catering, and in other respects he would still have the same support in the self‑care unit as he has in the hut he is currently sleeping in. Further, places in self‑care are limited and Mr Latimer is not at the top of the waiting list for placement in a self‑care unit.
In respect of supervised day outings, Ms Dabala said that although DCS had recently received advice that dangerous sexual offenders were eligible for programs which may include some time spent in the community pursuant to the Prisons Act1981 (WA) s 95, there were currently no proposals for including dangerous sexual offenders in such programs.
The DPP submits that Mr Latimer has only had a limited time, since October 2013, to demonstrate his life skills in a low security prison environment. He submits that given Mr Latimer's high risk of serious sexual reoffending and the fact that despite some progress, the overall progress at treatment is modest. He says that the court should have significant concerns as to whether Mr Latimer's risk of serious sexual reoffending can be adequately managed in the community at this time. Thus, he submits that the need to ensure the adequate protection of the community requires that the court expressly declines to rescind the continuing detention order.
In order to decide this matter, it is necessary to have regard to Mr Latimer's history.
Mr Latimer will shortly be 56 years of age. His general offending commenced when he was 11 years of age and continued at a significant rate. His first offence of an indecent nature was committed when he was 14 years of age. It was an offence of wilful exposure and he was committed to the care of the Department of Child Welfare. In April 1976 he was convicted of indecent assault and sentenced to 1 months' imprisonment. I do not have the details of this offence. As a young adult he continued to commit minor offences of a non‑sexual nature. In 1982 he was convicted of two counts of wilful exposure and in 1983 he was convicted of three counts of wilful exposure. There was then no sexual offending until 1988 when he was convicted of a further two counts of wilful exposure. There was a further offence of wilful exposure in 1992. In December 1992 in the Perth District Court he was convicted of indecent assault and wilful exposure and placed on probation for 18 months. Wilful exposure and indecent assault are not serious sexual offences as that term is defined in the Act.
On 26 August 1993, Mr Latimer appeared in the Perth District Court and was sentenced for one offence of indecent assault and one offence of wilful exposure. He was sentenced to a total term of 29 months' imprisonment. The facts of the offence were that on 17 November 1991, Mr Latimer approached a 19‑year‑old female who was sitting alone outside the Perth Art Gallery. After a brief conversation, Mr Latimer asked her if she would masturbate him if he gave her $50. The complainant stood up and began walking away. Mr Latimer walked in front of her, lifted up his jacket and exposed his erect penis through the open zip of his jeans. Those facts constituted the wilful exposure. The complainant walked away, but Mr Latimer followed her. He put his hands on her bottom and rubbed it. He then grabbed her around the waist and pulled her towards him. He then grabbed her arm and pushed her backwards. He raised his arm as if to strike her, and she screamed at him not to hit her. Mr Latimer threatened to hit her, and the complainant ran away. The complainant was extremely shaken by the incident, but decided not to report them to the police.
However, on 2 December 1991, Mr Latimer confronted the same complainant at another place in Northbridge. He approached her and said, 'How about it, love? How much?' The complainant told Mr Latimer to go away and she crossed the road to get away from him. Later that evening she reported the two incidents to the police.
On 30 August 1993, Mr Latimer appeared in the Perth District Court and was sentenced for one count of indecent assault. This offence was committed on 24 June 1992 against a 32‑year‑old woman as she walked along a street in Perth. Mr Latimer approached her and asked her if she would have sex with him for $20. When she rebuffed this approach, Mr Latimer continued to follow her along the street, all the time demanding that she have various forms of sex with him. Whilst doing this, he unzipped his trousers and exposed his penis. He also grabbed the complainant by the wrist. After she pulled herself free from him, he continued to try and grab hold of her by the arm. The incident only came to an end when the complainant took a pocket knife out of her bag and also told Mr Latimer that another man across the street was a friend of hers who would deal with him if he continued to do what he was doing. Mr Latimer then ran off and the complainant reported the matter to the police.
Mr Latimer was sentenced for his first serious sexual offence on 12 February 1996 in the Supreme Court. The facts of that offence were that on 15 October 1995, when Mr Latimer was 37 years of age, he approached a 39 ‑year‑old woman at the Perth Train Station. He told her that he knew her. He grabbed her and pulled her about 10 metres away to a space underneath some escalators. She called for help, but no one came. Mr Latimer pushed the complainant to the floor causing her to hit her head and her back on the concrete surface. He put one of his hands over her mouth and pinned her to the floor by sitting on her thighs. He then partially removed her jeans and pulled aside her underpants. He pulled down his pants and revealed his erect penis. He then put his left hand around the complainant's throat, making it difficult for her to breath. He inserted some of his fingers into her vagina. This caused pain, a small abrasion and some bruising. The complainant cried out and, in effect, Mr Latimer told her that he was going to rape her. She managed to push Mr Latimer off her. Mr Latimer then got up, pulled up his pants and ran off. The complainant made an immediate complaint and Mr Latimer was found in the area and arrested. Mr Latimer was sentenced to 5 years and 6 months' imprisonment.
There is no doubt that this offence, as Murray J said, 'marked a disturbing escalation in the seriousness of [Mr Latimer's] sexual offending'.
Mr Latimer was ultimately released upon completion of his sentence on 5 October 1999. He had not been offered a sex offender treatment program because he denied the offence for which he had been imprisoned and was continuing to deny earlier sexual offending.
On 23 August 2000, Mr Latimer appeared in the Perth Court of Petty Sessions and was sentenced to 6 months' imprisonment for one count of wilful exposure.
After service of that sentence, Mr Latimer remained in the community until his arrest on 14 December 2003. On 14 September 2003, Mr Latimer approached two people who were asleep in a park in Northbridge. It was about 2.00 pm. Mr Latimer crouched over the male person and partly pulled the victim's pants down and played with the victim's genitals. Mr Latimer continued to pull the pants down and the male person stirred and sat up. The victim pulled his own pants off completely. It was not suggested that the male was cooperating with Mr Latimer. Rather, the victim was unaware of what was happening due to his own excessive intoxication. Mr Latimer then crouched over the male and attempted, unsuccessfully, to have anal sexual intercourse with him. After a period, Mr Latimer stood up. The front of his trousers was undone and his pubic hair area was exposed. He (Mr Latimer) walked off and masturbated. Two women in the park saw what occurred and contacted the police. Mr Latimer was arrested a short time later. At the same time as being sentenced for the attempted sexual penetration without consent, Mr Latimer was sentenced for breach of bail and breach of a violence restraining order which his brother had taken out against him. He had attended his brother's home and acted in an intimidatory and offensive manner towards his brother, suggesting that he would set 'bikies' onto him and shoot him (ts 134). Mr Latimer was sentenced to a total of 2 years and 8 months' imprisonment.
While Mr Latimer was serving that term of imprisonment, the DPP made the application under the Act. After Mr Latimer completed his sentence, he was detained on an interim order made under the Act and has been detained since then by virtue of the continuing detention order made by Murray J. Were it not for the orders made under the Act, Mr Latimer would have been eligible for release on 2 September 2006. Thus, he has been kept in custody without sentence, for nearly eight years under the Act.
Without in any way wishing to trivialise his offending, Mr Latimer has two convictions for serious sexual offences, one of digital penetration, and one of an attempted anal penetration. Mr Latimer's risk of future serious sexual offending is evidenced by the chronicity of his general sexualised offending and the increasing seriousness of that offending, to the point where he committed the two serious sexual offences.
It is notable that when he committed the serious sexual offences, Mr Latimer was living a chaotic, itinerant life. The sentencing judge in 2005 described Mr Latimer as having no fixed address (ts 134). He reported at the time that he was living on the streets. He had no social support and it seems that his life was chaotic.
While acknowledging Mr Latimer's risk of serious sexual offending, in my view, so much has changed in Mr Latimer's life since he was sentenced in 2005 that it can now be said that the community can be adequately protected from that risk if I rescind the continuing detention order and make a strict supervision order. The reasons I have come to this view are as follows:
(1)unlike when Mr Latimer committed his serious sexual offences, Mr Latimer has now completed a denier's sex offender treatment program and has had the benefit of regular, one to one therapeutic counselling for over two years;
(2)over a period of about 3 years, people involved in Mr Latimer's supervision and care have seen improvements in his social interactions with others and in his ability to regulate his behaviour;
(3)on release on a supervision order, Mr Latimer will have stable accommodation;
(4)on release on a supervision order, Mr Latimer will have close supervision provided by UCW, community corrections officers, SOMS and his counsellor;
(5)GPS monitoring and random breath testing and urinalysis will be used to keep Mr Latimer from wandering around places where he may offend, and from consuming substances which may increase the chance of him reoffending; and
(6)there are signs that Mr Latimer has made positive steps towards his rehabilitation, but if when released under the supervision order it is apparent that he is regressing by breaching any condition of his order, there are adequate safeguards to ensure that he is brought back to court so that his status can be reconsidered.
Conclusion
Accordingly, I rescind Mr Latimer's continuing detention order and make an order that at all times during the next five year period when Mr Latimer is not in custody, he be subject to a supervision order with conditions similar to those in the attached draft supervision order prepared by Ms Dabala. I will hear the parties as to the final terms of the order.
DRAFT SUPERVISION ORDER MADE BY
THE HON JUSTICE JENKINS ON 30 JUNE 2014
The Court, being satisfied to the requisite standard, that the Respondent remains a serious danger to the community, rescinds the continuing detention order made by Murray J on 30 October 2006 and orders that the Respondent be the subject of a supervision order pursuant to section 33(2)(b) of the Dangerous Sexual Offenders Act 2006 (WA), for a period of five years from the date of this order, on the following conditions:
THE RESPONDENT must:
STANDARD CONDITIONS REQUIRED BY THE ACT
1.Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of the person's current name and address;
2.Report to and receive visits from, a Community Corrections Officer as directed by the court;
3.Notify a Community Corrections Officer of every change of the person's name, place of residence, or place of employment at least 2 days before the change happens;
4.Be under the supervision of a Community Corrections Officer, which includes comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B);
5.Not leave, or stay out of the State of Western Australia without the permission of a Community Corrections Officer;
6.Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order; and
7.Be subject to electronic monitoring under section 19A.
ADDITIONAL CONDITIONS
8.Take up residence at [address] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you;
9.Not leave or remain out of the State of Western Australia without the permission of a Manager of the Department of Corrective Services and, if so permitted, abide by all conditions of such permission whilst absent from the state;
Reporting to the CCO and supervision by the CCO
10.Report to a CCO at South West Coastal Adult Community Corrections, Level 1 Holdsworth Street, Fremantle WA 6160, within normal business hours on the day of release from custody under this order, and thereupon advise the CCO of your current name and address;
11.Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO;
12.Report to, and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of you;
13.Notify the CCO of any change of your name at least 2 working days before the change is due to happen;
14.Not commence or change voluntary or paid employment without the prior approval of the CCO;
Attendance at programs or treatment
15.Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;
16.Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re‑offending, as directed by a CCO;
Reporting to WA Police
17.Report to the Officer‑in‑Charge of the Sex Offender Management Squad at 297 Hay Street, East Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer‑in‑Charge of the Sex Offender Management Squad or his/her delegate;
18.If requested, permit Police Officers to enter and search your residence for the purpose of monitoring your compliance with your obligations under this order;
Disclosure/Exchange of Information
19.Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
20.Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history;
Restrictions on contact with Victims
21.Have no contact, directly or indirectly, with any of the victims of your sexual offending unless such contact is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Corrective Services;
22.Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;
23.Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;
Criminal conduct
24.Not commit any sexual offence, as defined in the Evidence Act 1906 section 36A;
25.Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;
26.Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA);
27.Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
28.Not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis;
Curfew
29.Be subject to a curfew pursuant to s 19B of the Dangerous Sexual Offenders Act 2006 (WA), such that you are to remain at and not leave your approved address as directed by a CCO from time to time;
30.When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
31.When subject to a curfew under this order, you must ensure that all those people present in the residence who may answer the telephone or door are aware of your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;
Medications/Mental Health
32.Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the CCO;
33.Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment or programs to the Department of Corrective Services;
Prevention of high-risk situations
34.Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO;
35.Not to possess, consume or use alcohol.
36.Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a police officer including accompanying such persons to an appropriate location for such testing to take place;
37.Not to enter the premises of, or access the services of, escort agencies or sex workers;
38.Make full disclosure regarding your past offe4nding and the current order to anyone with whom you commence a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a police officer.
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