Director of Public Prosecutions (WA) v Latimer [No 8]
[2015] WASC 154
•20 APRIL 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- LATIMER [No 8] [2015] WASC 154
CORAM: HALL J
HEARD: 20 APRIL 2015
DELIVERED : 20 APRIL 2015
FILE NO/S: MCS 26 of 2006
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
EDWARD WILLIAM LATIMER
Respondent
Catchwords:
Dangerous sexual offender - Contravention of supervision order - Indecent acts in public - Whether contraventions proven - Whether supervision order should be rescinded - Whether indefinite detention order should be made
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 23
Result:
Contravention proven
Supervision order rescinded
Indefinite detention 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):
Crowe v Graham (1968) 121 CLR 375
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 Latimer [No 7] [2014] WASC 229
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
TJD v The State of Western Australia [2014] WASCA 10
HALL J:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
This is an application pursuant to s 23 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). The applicant seeks findings that the respondent, Edward Latimer, has contravened or is likely to contravene the conditions of a supervision order made on 30 June 2014 and that, in consequence, an order be made that he be detained in custody for an indefinite period for control, care or treatment.
The respondent was the subject of a continuing detention order originally made by Murray J on 30 October 2006: The State of Western Australia v Latimer [2006] WASC 235. There were then annual reviews over the following eight years:
(1)1 November 2007: The State of Western Australia v Latimer [2007] WASC 272;
(2)1 May 2009: The State of Western Australia v Latimer [No 2] [2009] WASC 132;
(3)7 May 2010: Director of Public Prosecutions (WA) v Latimer [No 3] [2010] WASC 109;
(4)10 May 2011: Director of Public Prosecutions (WA) v Latimer [No 4] [2011] WASC 125;
(5)24 May 2012: Director of Public Prosecutions (WA) v Latimer [No 5] [2012] WASC 188;
(6)10 June 2013: Director of Public Prosecutions (WA) v Latimer [No 6] [2013] WASC 231; and
(7)12 June 2014: Director of Public Prosecutions (WA) v Latimer [No 7] [2014] WASC 229.
The respondent made slow progress over those years but it was nonetheless progress and last year Jenkins J concluded that he had reached a point where the community could be adequately protected from the risk of his committing further serious sexual offences by placing him on a supervision order with a number of strict conditions. Amongst those conditions was a condition numbered 25 that provided that the respondent was not to do any indecent act in public. The applicant alleges that the respondent breached that condition on two occasions, on 22 January and 29 January this year, by sexually propositioning women who he did not know and in public places. The manner and context of those acts are said to make them indecent. The respondent did not admit the contraventions and, accordingly, there has been a trial which was conducted today.
Relevant law
Section 23 of the DSO Act provides:
(1)If the court is satisfied, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order, the court may -
(a)make an order amending the conditions of the supervision order and, if the court considers it appropriate in order to achieve compliance with the supervision order or necessary in order to ensure adequate protection of the community, make any other order; or
(b)if the court is also satisfied that there is an unacceptable risk that, if an order under this paragraph were not made, the person would commit a serious sexual offence, order that the person be detained in custody for an indefinite term for control, care, or treatment.
(2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
The proper interpretation of s 23 of the DSO Act has been considered by the Court of Appeal in TJD v The State of Western Australia [2014] WASCA 10. It is unnecessary to repeat the conclusions of that decision, other than to note that the power in s 23 is based on existing positive finding that the person is a serious danger to the community. Both s 23(1)(a) and s 23(1)(b) require satisfaction on the balance of probabilities that the person has contravened, is contravening, or is likely to contravene, a supervision order.
Section 23(1)(b) has an additional condition; that there is an unacceptable risk that if an indefinite detention order was not made, the person would commit a serious sexual offence: see TJD at [47] to [60] McLure P with whom Buss and Mazza JJA agreed. I also note that in deciding whether to make an order amending the existing supervision order, or to make an indefinite detention order, the paramount consideration is the need to ensure the adequate protection of the community.
Evidence
I have heard evidence in this case from a number of witnesses. I will summarise that evidence.
Aimee Ha
Ms Ha is a 17‑year‑old young woman who is a student. On 29 January 2015 she was in Perth in the Hay Street Mall. She was by herself when a man approached her. She described the man as being a bit scary, and she said she felt intimidated by his presence. He came to her left side and was about one metre away from her. She did not know him. She described him as having brown hair, a red backpack and was somewhat dirty looking. She said that he turned to look at her in what she referred to as a sexual way. She later described this as him looking her up and down with his eyes going up and down her body. He seemed to be talking to her but she could not hear him as she had earphones on. This occurred for a short period, a few seconds, maybe about seven, she said.
Ms Ha said that she felt sufficiently concerned by this that she decided to turn away and go into a women's clothing store so that she could get help if needed. The man, who it is alleged is the respondent, did not follow her but walked off. I am satisfied, I should say, that it is the respondent who was that man. He was identified by police officers and that identification is not disputed.
Sarah Gathago
Ms Gathago is a 36‑year‑old woman who works in the East Perth area on Aberdeen Street. On 22 January this year, at just after noon, she was walking into the city from her workplace to get some lunch. She was by herself and was crossing the train tracks close to McIver Train Station. She said that as she did so a man approached her and was speaking to her. She did not hear what he said at first but he then said something to the effect of, 'want to have some fun tonight'. He then said, 'Do you want to make a quick 500 bucks?'
Ms Gathago said that she kept walking and that, as she did so, the man shouted towards her from the back something like, 'You're gorgeous'. She said that she felt that the man was propositioning her for sex and, as he was looking at her, he looked her up and down from head to toe. She said she felt shocked and frightened by this incident. She described the man as unshaven, sunburnt and that this incident took about four to five seconds.
Ms Gathogo was able to identify herself from CCTV footage taken near the McIver station. This footage also shows the accused as being the man who approached her. In cross‑examination, Ms Gathogo was asked whether it was possible that the man who approached her said, 'Would you like $500?' She said that that was not the case and was firm in her evidence that, in fact, he said, 'Do you want to make a quick 500 bucks?'
David John Pert
Mr Pert is a senior constable in the West Australian Police with the Sex Offender Management Squad (SOMS). Senior Constable Pert said that in December 2014 he became aware that the respondent was travelling to Perth and walking, as he described it, aimlessly in the Central Business District (CBD). As a result of receiving this information police commenced observations and this progressed to Senior Constable Pert monitoring the City of Perth CCTV footage.
On 31 December 2014, in the morning, he first conducted observations on the respondent who was located in the vicinity of a McDonald's store. Those observations continued for about an hour. At this time the respondent was seen to be constantly 'scanning', and this was described as watching, being in a watchful manner, looking like he was conducting 'anti‑surveillance technique'. He was constantly looking from left to right.
The appellant was later observed to walk through Forrest Place towards the train station and a pedestrian crossing at Wellington Street. His attention appeared to be drawn to a female and he looked the woman up and down and followed her and then moved up alongside her. He appeared to talk to the woman and she continued to walk and looked straight ahead. Senior Constable Pert said the woman had what appeared to be a confused look on her face, like she did not like what was being said to her. The woman in question was in her late teens or early twenties and was dark skinned. The police were unable to speak to her as Senior Constable Pert lost sight of her. This scanning behaviour continued and appeared to focus on females who the respondent would scan up and down and, on occasions, would approach and then walk backwards so that he could maintain visual contact with them. He appeared to be particularly attracted to dark skinned women.
Senior Constable Pert then referred to 8 January 2015 and said he started observations on that day at 10.30 am in the CBD. Again, the respondent was seen scanning people and walking backwards. He met up with a woman who appeared to be Aboriginal near one of the malls. He went to a charity shop and he looked to be comfortable with the women he was with at that time. It was assumed that he knew them. For some period of time, the respondent was seen to be hanging around some sex shops near the corner of Murray and Barrack Streets.
On 13 January 2015, the respondent was again seen in the Perth CBD engaged in the scanning and backwards walking behaviour.
Then on 22 January 2015 the respondent was located in Belmont at a shopping centre. He boarded a bus to the CBD and was then observed by Senior Constable Pert on CCTV at the McIver Station. He approached a female and said something but that could not be discerned from the CCTV footage and she walked on to the city. It is clear now that that person was Ms Gathogo.
On 29 January 2015, the respondent was again observed, this time walking on Francis Street in Northbridge near the cultural centre. At one stage he appeared to be calling out to two women who were on the opposite side of the street, who did not respond. He then walked along Francis Street and apparently down an alleyway. He was later seen in the Hay Street Mall and then later still at the Perth Train Station. On this occasion, at the train station, he entered by way of the Barrack Street bridge and CCTV footage showed him following a number of women. He spoke to a dark skinned woman who appeared to respond angrily to him but she then got onto a bus before police were able to speak to her. He continued to loiter in this area, stopping a number of times and turning to look at women who were walking past.
Sharrie Harring
Ms Harring is a 34‑year‑old woman. On 29 January 2015 she was engaged in a security course at the Stanley College, which is located at the corner of Francis and Beaufort Streets in Northbridge. During the course of the day, at about midday, she left the course for a quick cigarette break. The college is in the old Army Barracks and she said that she was sitting on steps at the front of the college.
A man walked past and looked at Ms Harring and then stopped and turned back to speak to her. He asked if she was from New Zealand. She said that she was not. He then asked if she was Noongar. She said that yes she was and Filipino. He asked if she was single and she said that she was married. She said in her evidence that this was not true, she was not married, but she responded in that way because she felt uncomfortable in speaking to this man. He then said that he was looking for a lady. She asked what sort of lady and he said, 'One for 20 minutes'. She then responded, 'I think you've got the wrong fucking lady'.
The man walked off, looked back and then, as he got to the corner, waved at Ms Harring. She said that she had never seen this man before. She was shocked as she did not expect something like this to happen and felt disgusted by the comments that he made. In cross‑examination she was asked whether she was sure of what had been said to her and she said that she was very sure and that she could say that because she does not get asked that sort of thing every day.
David Sayer
Mr Sayer is a detective sergeant in SOMS. He said that on 29 January 2015 he observed the respondent walking in the CBD looking at and approaching females. Sometimes he walked backwards. He was staring at women. It was not a quick glance. He also observed the respondent in the Hay Street Mall walking in front of a teenage girl who was later identified as Aimee Ha. He could see that the respondent was speaking to Ms Ha but he could not hear what was said. He then saw the respondent approach another woman who walked off. He noticed that there appeared to be a pattern in the women that were approached as being darker skinned.
Gary Payet‑Smith
Mr Gary Payet‑Smith, is a detective senior constable with SOMS. He said that on 31 December 2014 he observed the respondent to be 'scanning' females, looking at them up and down, head to toe. On 8 January 2015 he saw the respondent speaking to some women and then enter a Good Samaritan store. He later spoke to one of the women who confirmed that she knew him - that is, the respondent - from being on the streets.
On 22 January 2015 Senior Constable Payet‑Smith saw the respondent close to McIver Station and he spoke to Ms Gathogo after she was approached and obtained a statement from her. Later that day, he saw the respondent continuing his scanning behaviour but there was nothing of the nature of the conduct he observed with Ms Gathogo.
On 29 January 2015 Senior Constable Payet‑Smith again observed the respondent to be scanning women. He appeared to be particularly drawn to Asian women. There was an Asian woman on a train from Midland on which Detective Senior Constable Payet‑Smith also travelled and the respondent was seen to be watching her and looking her up and down. He then saw the respondent shouting at women on Francis Street and then saw him talk to Ms Harring and obtained a statement from her.
Dr Peter Wynn Owen
Dr Peter Wynn Owen is a forensic psychiatrist who has prepared a number of reports in regards to Mr Latimer over many years. In respect of this matter he prepared a report dated 14 April 2015, which was tendered. He interviewed the respondent for the purposes of preparing that report. In that interview, he challenged the respondent in regards to the allegations. He said that the respondent was angry when initially asked about these issues. He said:
Asked specifically about the times he has been seen on CCTV to be staring at women, following and talking to them, Mr Latimer initially strongly denied this behaviour.
On further questioning the respondent stated, 'I might have said hello'. But he denied following women saying they may have been walking in the same direction.
When told of the police surveillance reports in more detail, of the CCTV footage and the statements of the women he had approached, Mr Latimer stated adamantly that nothing untoward had occurred. He particularly reacted to the statement that he had propositioned a woman with an offer of money for sex, becoming angry and saying, 'I've never, ever offered a women money for sex and I never will'. Dr Wynn Owen said that this denial was consistent with Mr Latimer's denial of his offending. He said that this was a feature of the high level of psychopathy that Mr Latimer has, that he would deny, even in the face of overwhelming evidence, that something had occurred. Tests for psychopathy have previously been administered by Dr Wynn Owen and Mr Latimer has tested high on those tests.
Dr Wynn Owen said that there is no indication of any change to the level of psychopathy. The Static‑99 test has also been administered in the past and that has indicated that Mr Latimer is at high risk of reoffending by committing a further serious sexual offence. That is a static test, an unchanging test, based on historical factors, so it is unsurprising that there has been no change in that regard. That test does have a revised version that makes allowances for those who are over 60 but that is not applicable in this case, Mr Latimer not having reached that age.
Dr Wynn Owen said that the conduct that had occurred in this case was, in his view, a first step on an offending cycle and could, as it has in the past, lead to offending of a serious sexual nature. Dr Wynn Owen said he could not say the speed with which this would happen, that many factors would affect that. He said that in regards to what controls could be put into place, such controls would have to be external. The risk is one that emerged in unstructured time - that is, time when Mr Latimer did not have structured activities - and that in order to ensure that that risk does not repeat there would need to be a timetable for each day. He said that Mr Latimer struggles due to a long period of institutionalisation. He said that Mr Latimer would not need to be supervised at all times but he would need somewhere to go and something to do at all times. He said that there was some unexpected gains in counselling towards the end of his last detention period but that had had no significant effect upon the risk of reoffending.
Dr Wynn Owen stressed the need for external constraints. The risk of re‑offending could not be managed by self‑awareness or an ability of the respondent to take his own actions or change his own behaviours. This was not a case where Mr Latimer could be expected to stop himself. He would need to be the subject of external controls. He said that due to his high level of psychopathy he is prone to boredom which itself is then a feature which leads to reoffending. He said that there would need to be a day program or a mentor who could be a model for normal behaviour for Mr Latimer.
In his report, Dr Wynn Owen concluded by saying that:
It is significant to the development of risk mitigation strategies that the behaviours of concern occurred during unstructured time. Unstructured time is when Mr Latimer may become bored and lonely, increasing his likelihood of engaging in high risk behaviours. During his structured activities in the community, Mr Latimer's engagement and interaction has been predominantly positive and co‑operative, reinforcing the overall importance of structure, particularly for someone who has been institutionalised over time, as Mr Latimer has. Mr Latimer had mentioned periods of boredom to his CCO. Also that he wished to increase his time at school to four days a week. Mr Latimer has otherwise coped reasonably well with the transition to living in the community. On the basis of historical factors, Mr Latimer's reoffending risk is unchanged and remains high (Static‑99 score and presence of psychopathy assessed by RSVP). It is my opinion that Mr Latimer's risk of serious sexual offending, if released, unsupervised remains high.
In cross‑examination, Dr Wynn Owen said that the conduct that was displayed on these occasions showed a cycle that was liable to recommence if released unsupervised. He was not sure that incarceration, either initially or over the last few months since these contraventions were first alleged, has taught Mr Latimer anything that could be relied upon. It is not a case of him having learnt the wisdom of not approaching women in this way. He said that Mr Latimer's needs included education, regular counselling, monitoring meetings and leisure activities and voluntary work. These needed to occupy him for seven days a week and he needs to be 'doing or planning' on each day. He said that Mr Latimer needs a mentor or social trainer, someone who would be accessible to him. He referred to Disability Services Commission providing such services, although he accepted that Mr Latimer did not fall into the category of people who could access those services.
Dr Wynne Owen said that more frequent counselling by a psychologist would not be of benefit and, indeed, could put strain on Mr Latimer. He said that increased reporting to a community corrections officer more frequently than once a week could be beneficial. There was reference then to the Fremantle Men's Shed and whether such activities could be beneficial. Dr Wynn Owen said that such activities could provide structure and these options needed to be explored. But he did say that activities would need to be organised for Mr Latimer. He could not organise them himself. He said that it would be difficult to step up organised activities but it was not impossible and he concluded by saying that he did not expect there to be any therapeutic value in Mr Latimer being returned to prison.
Jane Henshall
Ms Jane Henshall is a senior community corrections officer with the Department of Corrective Services. She also provided a report dated 14 April 2015 which was tendered in these proceedings. She commenced supervision of Mr Latimer in August 2014, taking over from another corrections officer, Ms Dabala.
Ms Henshall and Mr Latimer had had weekly meetings and she assessed him as having engaged quite well. She said that when it became apparent that he was going into the CBD this was raised with him, although not by her, as she was on holidays at the time. He denied that anything untoward was happening in that respect. Ms Henshall confirmed that psychological counselling had continued throughout this period with Mr Summerton on a once a week basis.
Mr Latimer had also engaged in education classes through Centacare and these had been conducted on a three‑day per week basis, each of the days being for contact hours of between 9.00 am and 2.30 pm. Those education classes would seem to have gone into a summer recess from about December 2012 and there is some significance as to that because it would seem that it was around that time that Mr Latimer started going to the CBD more frequently. Ms Henshall said that the education placement with Centacare had now been lost. The reason for that was that when the contravention proceedings were commenced and Mr Latimer was remanded in custody, media reporting resulted in Centacare withdrawing the placement due to the concerns expressed by other students. He is now no longer able to get a placement due to the awareness of his DSO status.
Ms Henshall had conducted some inquiries to identify other possible programs or structured activities in which Mr Latimer could engage. Nothing else had been identified by her, although she was able to refer to some inquiries that she had made in this regard. In particular, she said that she had made contact with the Fremantle Men's Shed and that a representative of that organisation had informed that the Fremantle Shed was highly involved with male youth, although that would not preclude Mr Latimer's involvement entirely. However, the view was taken by the Men's Shed organisation that any application would need to be discussed and approved by its committee and that engagement would only be approved if Mr Latimer was accompanied by a case worker or mentor. I will come back to the question of a mentor shortly.
Ms Henshall also made contact with the St Patrick's Community Support Centre. That is a drop‑in centre based in the Fremantle CBD. It offers activities, including the use of a pool table and computers, and there is a choir and some short courses in song‑writing, drawing and sewing. It was not possible to confirm whether Mr Latimer would be suitable for engagement with that facility as the centre manager was on leave at the relevant time.
Ms Henshall also made inquiries with Centrelink in regard to the 'Work for the Dole' program. That is a program that is anticipated to be rolled out around Australia on 1 July 2015. Under that scheme, job seekers who are aged between 50 to 59, which is the relevant age group for Mr Latimer, will typically need to complete 15 hours per week of an approved activity for six months of the year. This can include part‑time work, part‑time study or participation in an accredited course, training or voluntary work. Whether Mr Latimer will be suitable for such a program cannot be determined at this stage, given that that program has yet to commence.
In regards to mentoring, Ms Henshall said that the department did expect there to be funding for four days per fortnight for engagement of a mentor, but it will be necessary to locate a suitable person and it was not known whether that person could be allocated to the respondent as there might be other competing demands for that service.
Realistically, the structured activities available to Mr Latimer at this time, according to Ms Henshall, are limited to the following: weekly counselling with a psychologist, twice weekly meetings with a community corrections officer and meetings with a case worker. But it is not known how much time that case worker could devote, as there would be competing priorities. Accommodation has been available to Mr Latimer in the past and I understand continues to be held for him.
Consideration was given, during the period that Mr Latimer was attending the CBD, to directing him not to do so but Ms Henshall said that there was a concern that that would not be a long‑term solution because he might move to another area where the SOMS response might not be as effective.
In cross‑examination, Ms Henshall said that it might be possible to assist Mr Latimer to fill a diary and to encourage him to engage in appropriate activities. In regards to TAFE, Ms Henshall did not know whether Mr Latimer might be suitable for courses with that organisation, although she felt that he would need to improve his literacy and numeracy standards to a basic level.
Respondent
The respondent elected not to give evidence in these proceedings or to call any evidence.
Findings
I accept the evidence of the prosecution witnesses. They gave their evidence in clear and unequivocal terms and none of them were seriously challenged in cross‑examination. In particular, I accept the evidence of Ms Gathogo and Ms Harring. They were both highly credible witnesses with a clear memory of what occurred. It was apparent that each of them was shocked by the approach made by the respondent, which was uninvited and unwanted. They both gave statements to police almost immediately after the events, which may also account for their clear memories.
The other evidence confirms that these were not isolated instances but part of a pattern of behaviour whereby the respondent was approaching women unknown to him in public places, staring at them, looking at them up and down in a sexually suggestive manner, following them and, on these two occasions, propositioning them in a crude and blunt manner. This is relevant both in assessing the alleged contravention conduct and in determining what option it is appropriate to take if that contravention is proven.
I turn to the question of indecency. The condition in the supervision order reads 'not to do any indecent act in public'. The word 'indecent' is defined in the Macquarie Dictionary to mean 'offending against any recognised standards of propriety or good taste; vulgar: hence indecent language'. The Oxford English Dictionary definition is 'unbecoming, highly unsuitable or inappropriate, contrary to the fitness of things, in extremely bad taste or unseemly, uncomely, inelegant in form, offending against recognised standards of propriety and delicacy, highly indelicate, immodest'. The word indecency, of course, has a long history in the law and is used in the Criminal Code (WA) but it is not in that context I am required to construe it, but in the context of this particular supervision order. However, I do refer to the High Court's decision in Crowe v Graham (1968) 121 CLR 375 and, in particular, to Barwick CJ at 379 where he considered the meaning of indecency in the context of a publication and said that an indecent matter was that which, on being read or seen, in the circumstances in which and having regard to the manner in which, it is presented to him or her to be seen or read, would offend the modesty of the average man or woman in sexual matters.
I have no hesitation in concluding that the alleged conduct was indecent within the ordinary meaning of that word and that it did occur. The conduct in respect of Ms Gathago and Ms Harring was offensive by ordinary standards of propriety and bore sexual connotations. In coming to that conclusion, I take into account not only what was said but the context in which it was said; that is, in a public place to women who were unknown to the respondent, who clearly offered no invitation to speak to them in this manner. I am satisfied to the requisite standard in this regard that the respondent did contravene the condition of the supervision order as alleged.
Outcome
I turn then to the appropriate outcome. I do have regard to the seriousness of the contraventions in this respect but, having said that, the contraventions need to be considered not only in regards to what happened on these occasions but that these were resonant of a cycle of behaviour that has occurred in the past. I should also say that any period of detention that has been served to date or that might be ordered is not a punishment to the respondent but is primary for protection of the public. I know that difference may not be of any real moment to the respondent, but it is an important distinction under the Act.
The respondent remains, in my view, a serious danger to the community. That has not been seriously disputed. It has been confirmed by Dr Wynn Owen, in particular, the respondent remains a high risk of reoffending by committing a serious sexual offence if not made the subject of an order under the Act. Having regard to his high levels of psychopathy, which it should be said is a factor that is unlikely to change, this is not a situation where any self‑restraint or control can be expected of the respondent.
The issue, in those circumstances, is whether there is any possible external management structure that can be put in place that could, effectively, control the risk such as to adequately protect the community. One of the reasons why external management is important is to minimise the risk of boredom. Where boredom occurs and there is unstructured time, it can lead, as it appears to have done on this occasion, to the respondent committing contraventions.
The concern is that, as I have noted, the contraventions on this occasion are resonant of past offending and the past offending cycle. I accept Dr Wynn Owen's evidence that this conduct is reflective of those past offending cycles and that if not addressed may lead to serious sexual offending. It is certainly indicative that this cycle of behaviour can commence again in circumstances such as this. The only effective way to reduce the risk, is to either provide a high degree of external structure or to detain the respondent.
The problems that now exist in regards to external structure are that, firstly, education programs appear to be no longer available. Whether that will continue to be the case in the future I do not know, but there is no presently available education program. Secondly, the 'Work for the Dole' program, which may offer some structured activities, is not available until July and it is not presently known whether the respondent would qualify for that program or what activities he would be engaged in if he was. Thirdly, whilst there is funding for a mentor, it is not certain that that mentor would be engaged or would be allocated to Mr Latimer. In any event, such a mentor would only be available for four days a fortnight and that would be insufficient in itself.
In regards to other activities such as Men's Shed and the St Patrick's Centre, the Men's Shed appears to me to be conditioned on a number of factors which it is not clear could be satisfied. St Patrick's is largely a drop‑in centre that might provide somewhere for Mr Latimer to go but does not provide a structured environment.
At present, in those circumstances, there is less structure available now than there was previously, in particular due to the lack of education options. The only structure presently available is a community corrections officer for twice weekly meetings and psychological counselling once a week. This would leave, on any view, a very large amount of unstructured time which could only exacerbate the risk.
I do have regard to the fact that any supervision order would be subject to a global positioning system condition, as is required by the Act, but GPS would only provide an indication of where the respondent was, not necessarily, or not at all, what he was doing. Whilst it is possible with GPS to make written directions that he not go to certain areas, I do accept what Ms Henshall said in this regard; that to make such orders may not be effective in the long‑term as it may only cause Mr Latimer to go to another area where enforcement might be less effective.
I do accept that detention of Mr Latimer is unlikely to be therapeutic and unlikely to do him any good or make him more suitable to release into the community in the future. It is unlikely to reduce the risk of sexual offending in the long term. Supervision of an intense nature is required and may be theoretically possible but, at least at present, it is not a realistic option. In those circumstances, I am satisfied that there is an unacceptable risk of a serious sexual offence being committed unless the respondent is detained in custody for his control, care and treatment. Accordingly, I rescind the supervision order and make an indefinite detention order.
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