Director of Public Prosecutions (WA) v Latimer [No 9]
[2016] WASC 429
•20 APRIL 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- LATIMER [No 9] [2016] WASC 429
CORAM: FIANNACA J
HEARD: 20 APRIL 2016
DELIVERED : 20 APRIL 2016
FILE NO/S: MCS 26 of 2006
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
EDWARD WILLIAM LATIMER
Respondent
Catchwords:
Dangerous sexual offender - Annual review - Whether respondent remains serious danger to community - Whether release on conditions will ensure adequate protection of the community - Decline to rescind the continuing detention order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 3, s 7, s 23, s 29, s 33
Result:
Decline to rescind the detention order
Category: B
Representation:
Counsel:
Applicant: Ms S Markham
Respondent: Mr D J McKenzie
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: David McKenzie Legal Pty Ltd
Cases referred to in judgment:
Director of Public Prosecution (WA) v Yates [No 2] [2015] WASC 201
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
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
Director of Public Prosecutions (WA) v Latimer [No 8] [2015] WASC 154
Director of Public Prosecutions (WA) v Lyddieth [No 3] [2014] WASC 391
Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95
Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
The State of Western Australia v Latimer [2006] WASC 235
FIANNACA J:
Introduction
The application
This is an annual review of a continuing detention order under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). The order was made by Hall J on 20 April 2015. The respondent has had a lengthy history of proceedings under the DSO Act, having been found to be a serious danger to the community for the purposes of the DSO Act.
The respondent's history under the DSO Act
On 30 March 2005, having been convicted of an offence of attempted sexual penetration without consent, the respondent was sentenced in the District Court to a term of imprisonment of 2 years and 8 months. The offence had occurred on 14 September 2003. The respondent had attempted to have anal sexual intercourse without consent with a male who was heavily intoxicated and had been asleep in a park in Northbridge. When he was unsuccessful, he walked off and masturbated. Two women in the park had seen what occurred and contacted the police. The respondent was arrested a short time later.
Before the respondent was due to be released from prison, the Director of Public Prosecutions for Western Australia (DPP) made an application for a continuing detention order under the DSO Act on the basis that the respondent was a serious danger to the community. The application was made against a background of numerous convictions for offences of an indecent nature and indecent and sexual assaults, commencing when he was a juvenile. The most serious of those, an aggravated sexual assault, had involved the sexual penetration of a woman without her consent in October 1995, for which the respondent was sentenced to 5 years and 6 months' imprisonment in the Supreme Court in February 1996.
On 30 October 2006, Murray J found the respondent to be a serious danger to the community and made an order for his continuing detention under the DSO Act.[1] The continuing detention order was reviewed annually pursuant to s 29 of the DSO Act until it was eventually rescinded by Jenkins J on 30 June 2014, at which time the respondent was released on a supervision order for 5 years, commencing 2 July 2014.[2] While satisfied that the respondent continued to be a serious danger to the community, her Honour was also satisfied that much had changed in the respondent's life since he was sentenced in 2005, that he had made positive steps towards rehabilitation and that the conditions of the supervision order that was to be made would provide adequate protection of the community. Her Honour noted that if when released under the supervision order it was apparent that the respondent was regressing by breaching any condition of his order, there were adequate safeguards to ensure that he was brought back to court so that his status could be reconsidered.
[1] The State of Western Australia v Latimer [2006] WASC 235.
[2] Director of Public Prosecutions (WA) v Latimer[No 7] [2014] WASC 229.
On 20 April 2015, Hall J found, pursuant to s 23 of the DSO Act, that the respondent had contravened a condition of the supervision order imposed upon him, namely that he was not to do an indecent act in public.[3] The circumstances of the acts which contravened the supervision order are set out in [8] to [26] of that decision.
[3] Director of Public Prosecutions (WA) v Latimer[No 8] [2015] WASC 154 [49].
In essence, on 22 and 29 January 2015, the respondent approached women in Perth and, after paying them unwanted attention and trying to engage them in conversation, he, in effect, propositioned them for sex. That was the obvious implication of what he said. The woman approached on 22 January 2015 was Ms Gathogo. The respondent offered her money. The woman approached on 29 January 2015 was Ms Harring. On that day, he also approached a young woman, who was 17, and seemed to be talking to her while looking her up and down, showing interest in her body. The young woman felt sufficiently concerned that she turned around and went into a women's clothing store.
The respondent had been under observation by police, and some of these approaches were observed by them. He was also observed on 31 December 2014 and on two other days in January 2015 going up to women and 'scanning' their bodies as he walked backwards.
Hall J made the following findings:[4]
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.
[4] Director of Public Prosecutions (WA) v Latimer[No 8] [2015] WASC 154 [46] - [47].
His Honour went on to say:[5]
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.
[5] Director of Public Prosecutions (WA) v Latimer [No 8] [2015] WASC 154 [49].
The conduct that contravened the supervision order had similarities to some of the conduct that had preceded his previous offending against women, including the aggravated sexual assault in October 1995.
His Honour was satisfied that the respondent remains a serious danger to the community and that there was an unacceptable risk that he would commit a serious sexual offence unless he was detained in custody for his control, care and treatment.[6] Accordingly, he rescinded the supervision order and made an indefinite detention order. His Honour made a number of observations, based on the evidence before him, including the evidence of Dr Wynn Owen, the psychiatrist who had been appointed to review the respondent for the purposes of the contravention proceedings.
[6] Director of Public Prosecutions (WA) v Latimer[No 8] [2015] WASC 154 [51], [58].
In particular, Hall J was of the opinion that the contraventions were 'resonant of a cycle of behaviour that has occurred in the past'.[7] He noted that '[h]aving 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'.[8] Further:[9]
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.
[7] Director of Public Prosecutions (WA) v Latimer[No 8] [2015] WASC 154 [50].
[8] Director of Public Prosecutions (WA) v Latimer[No 8] [2015] WASC 154 [51].
[9] Director of Public Prosecutions (WA) v Latimer[No 8] [2015] WASC 154 [52] - [53].
His Honour concluded that the lack of education and other programs, the uncertainty about allocation of a mentor and the insufficiency of the time that a mentor would be available in any event, and uncertainty about the availability of a suitable structured environment (such as Men's Shed), meant that 'there is less structure available now than there was previously, in particular due to the lack of education options'.[10] His Honour considered that GPS tracking and the issuing of written directions from a Community Corrections Officer that the respondent not go to certain areas would not provide adequate protection of the community, as the respondent could go to other areas and GPS would not indicate what he was doing.
[10] Director of Public Prosecutions (WA) v Latimer[No 8] [2015] WASC 154 [54] - [56].
Hall J concluded:[11]
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.
Determination of the annual review
[11] Director of Public Prosecutions (WA) v Latimer[No 8] [2015] WASC 154 [58].
On 7 January 2016, the applicant applied for an annual review of the respondent's detention, pursuant to s 29 of the DSO Act. The review was conducted at a hearing on 20 April 2016. On that date, I found pursuant to s 33(2) of the Act that the respondent remains a serious danger to the community. The conclusion that the respondent was a serious danger to the community was conceded on his behalf. It was also conceded that a supervision order could not be made that would provide adequate protection of the community, because no suitable accommodation had been found at which the respondent could reside in compliance with the conditions of such an order. However, I was not satisfied that a supervision order would provide adequate protection of the community against the respondent's risk of committing a serious sexual offence at that stage, even if suitable accommodation were available. Accordingly, I declined to rescind the continuing detention order made by Hall J on 20 April 2015. I gave brief oral reasons for my decision on 20 April 2016, essentially in terms of the conclusion at the end of these reasons, and said that I would provide written reasons in due course.
The following, having regard also to the respondent's history under the DSO Act set out above, are the full reasons for my decision.
Legal principles
The relevant legislative provisions and legal principles that apply to the decisions which a court is required to make on an annual review, and the proper approach to be taken to that task, are outlined in Director of Public Prosecutions (WA) v Lyddieth [No 3].[12]
[12] Director of Public Prosecutions (WA) v Lyddieth [No 3] [2014] WASC 391 [20] ‑ [30] and [144] ‑ [147] (Simmonds J).
Pursuant to s 33 of the DSO Act (as it stood at the time of my decision on 20 April 2016)[13], when the court conducts an annual review of 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.[14] If the court finds that the person remains a serious danger to the community, it must either expressly decline to rescind the detention order or rescind the detention order and place the person on a supervision order.[15]
[13] The section has since been amended by the Dangerous Sexual Offenders Legislation Amendment Act 2016 (WA) pt 2. The amendment commenced on 10 September 2016: see s 2(b) and Gazette (9 September 2016) 3871.
[14] Dangerous Sexual Offenders Act 2006 (WA) s 33(1).
[15] Dangerous Sexual Offenders Act 2006 (WA) s 33(2); Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [51] (Steytler P & Buss JA).
The court will find that the respondent remains a serious danger to the community if it is satisfied on acceptable and cogent evidence to a high degree of probability that there continues to be an unacceptable risk that if the respondent is not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence (as defined in the Act).[16] If the court so finds, then, in deciding between continuing detention and a supervision order, the paramount consideration is to ensure the adequate protection of the community.[17] If that can be achieved by the making of a supervision order, then that order should be made, being the least invasive or destructive of the respondent's right to be at liberty.[18] However, if the court is left in doubt that the conditions of a supervision order would adequately protect the community, then it must decline to rescind the continuing detention order.[19]
[16] Dangerous Sexual Offenders Act 2006 (WA) s 33(1), s 3 and s 7.
[17] Dangerous Sexual Offenders Act 2006 (WA) s 33(3).
[18] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [79] (Wheeler JA, Le Miere AJA agreeing) referring to the 'least restrictive alternative compatible with the protection of the public'.
[19] Director of Public Prosecutions (WA) v Williams [86] (Wheeler JA, Le Miere AJA agreeing).
In light of the concessions that were made on behalf of the respondent in this case, and having regard to the conclusions I have reached, it is not necessary to address a question that has been raised in previous cases, namely whether the enquiry on an annual review is confined to ascertaining if the respondent's circumstances have changed since the last order was made, the court being bound by the findings made in respect of the respondent in previous hearings, or whether the court is required to consider afresh such matters as the risk of reoffending, the unacceptability of that risk or the protection likely to be afforded to the community by a supervision order.[20] I will proceed on the basis I adopted in Ugle [No 3].[21] While I assume the correctness of the findings made by Hall J on 20 April 2015 concerning the respondent's risk and the need for a detention order, which have not been challenged in any event, I must consider the respondent's circumstances at the time of the annual review to determine whether the justification for the making of a detention order remains, namely the existence (at that time) of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release.[22]
[20] See my discussion of this issue in Director of Public Prosecutions (WA) v Ugle[No 3] [2015] WASC 452 [9] ‑ [12], referring to Director of Public Prosecution (WA) v Yates [No 2] [2015] WASC 201 (Martin CJ) and Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95 (Corboy J). In all three cases the issue was identified but not determined, as a determination was not necessary in context.
[21] Director of Public Prosecutions (WA) v Ugle[No 3] [2015] WASC 452.
[22] See Director of Public Prosecutions (WA) v Ugle[No 3] [2015] WASC 452 [12].
Evidence on the annual review
At the hearing of the annual review, I received into evidence a number of psychiatric reports prepared by consultant psychiatrist Dr Wynn Owen, being the report dated 12 April 2016 he prepared for these proceedings at the request of the court, and eight other reports prepared for previous proceedings, dated 9 October 2006, 9 October 2007, 20 October 2008, 27 April 2010, 10 May 2012, 27 May 2013, 29 May 2014 and 14 April 2015.
Also tendered by the applicant and received into evidence were a Dangerous Sex Offender Treatment Progress Report[23] dated 30 March 2016 prepared by Ms Korda, a forensic psychologist; a Department of Corrective Services Community Supervision Assessment Report dated 13 April 2016 prepared by Ms Henshall, a Senior Community Corrections Officer; and reports in relation to the respondent's management whilst in custody over the preceding year. All of those reports, together with Dr Wynn Owen's report of 12 April 2016, are contained in a Book of Materials which was tendered without objection.[24]
[23] From the Department of Corrective Services Forensic Psychological Service.
[24] Exhibit 1.
Dr Wynn Owen, Ms Korda and Ms Henshall all gave evidence at the hearing.
The respondent remains a serious danger to the community
Although it was conceded on behalf of the respondent that he remains a serious danger to the community, it is necessary for me to be satisfied of that fact in accordance with s 7 of the DSO Act. In making that determination, I am required to take into account the matters set out in s 7(3) of the DSO Act. In the context of this case, it is not necessary to deal with them seriatim, but all relevant matters are addressed below, both in this section and the next section which deals with the respondent's suitability for release on a detention order.
At the time of the annual review, the respondent was 57 years old.
The respondent's offending history
The respondent's criminal history and the circumstances of his relevant sexual offending are set out in Director of Public Prosecutions (WA) v Latimer[No 7].[25] They were also set out by Murray J in The State of Western Australia v Latimer.[26] There are some differences between the histories described by Murray J and Jenkins J. In the circumstances, to clarify the factual background, I have reviewed the transcripts of proceedings in the District Court and Supreme Court in respect of the convictions referred to by both Murray J and Jenkins J. They were attached to an affidavit tendered in the proceedings both before Murray J in 2006 (marked exhibit E) and before Jenkins J in 2014 (marked exhibit 6). Although that affidavit was not tendered in these proceedings, it appears to have been the basis of the summary of offending given by each of their Honours. The respondent's history is not in contention in these proceedings, but in order to ensure that the factual context for my decision is accurate, I will set out salient aspects of that history by reference to the previous decisions, corrected where necessary to reflect the original transcripts.
[25] Director of Public Prosecutions (WA) v Latimer[No 7] [2014] WASC 229 [77] ‑ [85] (Jenkins J).
[26] The State of Western Australia v Latimer [2006] WASC 235 at [26] ‑ [35].
As a juvenile, the respondent was convicted of minor offences of indecency, being wilful exposure and indecent assault. In his mid-20s and again when he was about 30, he was convicted of further offences of wilful exposure. His sexual offending escalated in 1991, when he was about 33. That year, he offended against three women in public places in Perth.
On 24 June 1991, the respondent approached a 32‑year‑old woman as she walked along a street in Perth and propositioned her for sexual favours in exchange for money. Although she rebuffed him, he followed her and continued his requests for sexual favours, exposing his penis as he did so and grabbing the complainant by the wrist. A struggle ensued, but the complainant was able to frighten the respondent off by producing a knife from her bag and indicating she had a male friend across the road who would intervene.
On 22 July 1991, he committed an indecent assault on a young woman who was sitting in her vehicle, after approaching her and making suggestive remarks. She was unknown to him. She managed to push him away and drive off.
On 17 November 1991, the respondent approached a 19‑year‑old young woman in a public place and propositioned her to perform a sexual act on him for $50. He prevented her from walking away, first by stepping in front of her and exposing his penis, and then by grabbing her. He also threatened to strike her, before she managed to run away. Although the complainant was extremely shaken by the incident, she did not report it to police at that stage. However, the respondent confronted her again on 2 December 1991 in Northbridge, and again propositioned her for sexual favours in exchange for money. The complainant told him to go away, and crossed the road to get away from him. Later that evening, she reported the incidents to police.
The respondent was charged in respect of all four incidents committed in 1991.[27] He was dealt with, first, for the indecent assault on 22 July 1991, and was placed on a probation order with community service on 17 December 1992. He was then dealt with for the incidents on 17 November 1991 and 2 December 1991. He was convicted after trial and was sentenced in the District Court on 26 August 1993 to 2 years and 5 months' imprisonment for offences of indecent assault and wilful exposure. Finally, he was convicted in the District Court on 30 August 1993 for the offence of indecent assault committed on 24 June 1991 and was sentenced to 15 months' imprisonment, cumulative upon the earlier sentence.
[27] There being two incidents in respect of the third complainant, in November and December 1991.
The offences until that point in time were not serious sexual offences for the purpose of the DSO Act. It was after he was released from prison, having served the sentences to which I have referred, that the respondent committed his first serious sexual offence, on 15 October 1995 when he was 37.He committed the offence of aggravated sexual penetration without consent at the Perth Train Station.He approached a 39‑year‑old woman and said he knew her, before grabbing her and dragging her into a space underneath some escalators. He pushed her down, causing her to hit her head and back on the ground, and then forced himself on her by putting his hand on her mouth and sitting on her thighs. He removed some of her clothing, and pulled down his pants. He held his left hand around the complainant's throat, making it hard for her to breathe, and penetrated her vagina with his fingers. When she managed to cry out, he told her he was going to rape her. However, she managed to push him off, and he then ran off. The complainant sought immediate assistance and the respondent was apprehended in the area a short time after the offence. On 12 February 1996, he was sentenced after a plea of guilty in the Perth Supreme Court to 5 years and 6 months' imprisonment. He was released upon completion of the sentence on 5 October 1999. He was not offered a sex offender treatment program in prison because, despite his plea, he denied the offence during that time.
After his release in 1999, he was again convicted of wilful exposure in August 2000, for which he was sentenced to 6 months' imprisonment.
His last serious sexual offence was committed on 14 September 2003, being the attempted sexual penetration without consent, which I outlined in [2] above, for which he was sentenced to 2 years and 8 months' imprisonment.
The history demonstrates a propensity to confront women in public places in a sexual way, to make sexually suggestive remarks to them, including propositioning them for sex, progressing to indecent touching and sexual penetration, with the use of force to impose himself on his victims. The last incident was somewhat anomalous in that the victim was male and asleep or at least not fully aware of what was happening. However, it, too, involved an explicit sexual act in a public place in circumstances indicating the respondent's incapacity to control his sexual impulses.
In light of the respondent's conduct that resulted in the contravention proceedings, it would appear that the greatest risk to the community is his propensity to offend against women. As Hall J noted on the last occasion, the conduct was resonant of a cycle of behaviour that has occurred in the past.
Psychiatric assessment
Dr Wynn Owen has interviewed and assessed the respondent for all of the hearings under the DSO Act. He noted in his report for these proceedings[28] that it is to be read in the context of all of his previous reports.[29]
[28] Exhibit 1.7, Report of Dr Wynn Owen, dated 12 April 2016 (Wynn Owen 12.4.16).
[29] Exhibits 2 - 9.
Consistently with previous assessments, Dr Wynn Owen is of the opinion that the respondent remains at high risk of sexual re-offending if he is not subject to continuing detention or a supervision order, if released. His opinion is based on the following, in combination with his assessment of the respondent at interview and the information he received in respect of the respondent's progress in treatment since the contravention proceedings in 2015:
1.The respondent is rated as a High Risk of sexual reoffending, pursuant to the actuarial instrument STATIC-99R (Harris, Phenix, Hansen and Thornton, Revised 2003);
2.He returned a score consistent with psychopathy on the Psychopathy Checklist (PCL-R 2nd Edition, R D Hare, 2003), which, because of the respondent's previous convictions of a number of serious sexual offences is predictive of an increased risk of future sexual offending;
3.He has been diagnosed as having clinical disorders, being specific cognitive deficits and possible Non-verbal Learning Disorder; and
4.He has been diagnosed as having an Anti‑social Personality Disorder.
The STATIC-99 assessment is based on static (unchangeable) historical factors, so the respondent's score is unchanged from previous assessments. The difference in his age between when the respondent committed his last sex offence and the present does not indicate a need to modify the risk score.[30]
[30] Wynn Owen 12.4.16, 8; ts 206. Modification of the score for age occurs at 60 years of age.
Dr Wynn Owen gave evidence that there was no change in the respondent's presentation and the findings made by him on clinical assessment since he last reviewed the respondent. During the interview, the respondent continued to deny past sexual offending. He also denied that he propositioned and/or inappropriately followed and interacted with women while under the supervision order.
Before turning to Dr Wynn Owen's opinion about matters arising since the contravention proceedings in 2015, I will deal with the factors that have been found to have contributed to the respondent's sexual offending, which inform the issue of what would be necessary for any future supervision order to provide adequate protection of the community against the respondent's risk of reoffending.
Factors that have contributed to the respondent's past sexual offending
(a) Personality traits
From the time of his first assessment, Dr Wynn Owen has diagnosed the respondent as having a Cluster B type Personality Disorder with predominantly anti-social traits. The disorder has contributed to the respondent exhibiting impulsivity and excessive alcohol use in the past. It has also contributed to the respondent's inability to form intimate relationships, poor learning, and little or no capacity for remorse.[31]
[31] ts 204.
From an early stage, Dr Wynn Owen also considered that the respondent had a number of factors in his history, relevant to his cognitive functioning, that may be interacting with the personality disorder. In particular, the respondent had been born premature and had suffered illnesses in his early childhood. He had also suffered a head injury with significant loss of consciousness at 11 or 12 years of age. Finally, he had a history of excessive alcohol and solvent use until about the age of 33 years.[32] He recommended neuropsychological testing. That testing subsequently occurred in August 2008 and again prior to the annual review in 2012.
(b) Neuropsychological deficits
[32] ts 204 ‑ 205.
In Director of Public Prosecutions (WA) v Latimer[No 5], Hall J summarised the 2012 neuropsychological assessment as follows:[33]
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.
[33] Director of Public Prosecutions (WA) v Latimer[No 5] [2012] WASC 188 [4] - [6].
In the present review, Dr Wynn Owen gave evidence that all of the factors he had previously identified, which he considered to be relevant to the respondent's cognitive functioning, could have contributed to the respondent's current psychiatric picture. The neuropsychological testing in 2008 had resulted in an assessment that, overall, the respondent had borderline intelligence,[34] but he was found to be at least average in his language ability.[35] Confirming much of what had been set out by Hall J in 2012 in respect of the neuropsychological assessment, Dr Wynn Owen said that 'once neuropsychological testing was undertaken, it was demonstrated that [the respondent] had … both global deficits [and] some frontal deficits, including difficulties in executive function, decision‑making, problem-solving, planning and learning.'[36] The difficulties with learning may include difficulty with comprehension, but also difficulty with learning from mistakes. Further, his cognitive deficits create problems with impulsivity.[37]
[34] ts 206.
[35] ts 218.
[36] ts 205 - 207.
[37] ts 206 - 207.
Dr Wynn Owen agreed in cross-examination that a consequence of having average language ability is that some other disabilities might be masked, perhaps causing persons responsible for the respondent's management to think that he is more capable than he actually is.[38] Dr Wynn Owen also considered that being in a highly structured environment potentially masks the deficits in the respondent's capabilities, although he copes better in such an environment, and, given his cognitive deficits, it is precisely such an environment that he needs in order to improve his prospects of compliance with a supervision order.[39]
[38] ts 218.
[39] ts 218.
Both Dr Wynn Owen and Ms Korda, the forensic psychologist, identified the respondent's cognitive deficits and his difficulty in retaining or applying information he may have learnt during treatment, as well as difficulty with communication, as factors that were likely to have contributed to his decline into contravening behaviour when he was on the supervision order, although both were of the view that there were likely to have been a number of factors at play.
Ms Korda said in evidence:[40]
There's … probably a number of different issues that need to be considered in answering that question. I think, firstly, that, prior to his release, Mr Latimer was described as having made some treatment gains in terms of, I believe, his self-regulation, his anti-sociality and his willingness to ‑ to work in treatment. But, at that time, it was also still recognised that he has complex needs and will require sustained intervention and support in the community. So, while he made some changes that were probably quite significant for him, overall, they're probably, you know, best viewed as limited, and you had someone with a limited base ‑ sorry, a low baseline of functioning being released into the community. And I think it was appreciated that he would pose, you know, some risk at that time ... . I suppose the other relevant issue is, you know, assuming Mr Latimer did make these changes, perhaps he experienced some difficulty in generalising them and applying them to the community setting. Even though he would have been subject to a fair degree of structure with the conditions that were imposed on him he is, nonetheless, in an environment where there's novel stimulation, novel stresses and greater exposure to potential victims. So perhaps there was some, you know, difficulty in continuing to regulate his behaviour given that. And that wouldn't be too unexpected given his pattern of neuropsychological deficits. I think one of the issues that faces people with a non-verbal learning disorder is the difficulty in learning and then generalising that information.
[40] ts 231.
She went on to say, however, that because of the respondent's stance of denial, there is a lot that is not known about his offending behaviour that might explain his conduct and enable those treating him to better predict his response to supervision.[41] Issues such as the role that sexual deviance or sexual compulsivity may play in his offending remain unresolved.
[41] ts 232.
Detention or supervision?
Much of the evidence on the annual review was directed at whether the community could be adequately protected if the respondent were released on a supervision order, if there was suitable accommodation. That requires a consideration of the respondent's level of risk at the time of the annual review, which is also relevant to the threshold question that he is a serious danger to the community, and the measures that could be taken to manage that risk on a supervision order to ensure adequate protection of the community.
It is convenient to commence with what the expert witnesses consider to be a fundamental requirement of any supervision order, before dealing with the respondent's progress since the detention order was made on 20 April 2015.
The need for a highly structured environment
According to Dr Wynn Owen, the problems associated with the respondent's cognitive deficits mean that he requires a highly structured environment if he is to cope within the community. Dr Wynn Owen considers that there was an accumulation of factors that led to the respondent contravening the supervision order, but the absence of structure at pivotal times when the respondent became bored was significant. He explained:[42]
There was structure. There were a number of excellent interventions, and he was given opportunities for education. He had regular meetings with a number of the supervising team from a number of agencies. However, there were periods where he became bored and was not able to communicate what was happening with the monitoring and supervising staff. So I think the times that he started to wander in the metropolitan area were a reflection of that boredom and probably … of a lack of structure or an absence of structure for those periods of time. There would then be a lot of sensory inputs that would not … have been something he would have dealt with for a very long time, and a pattern of behaviour started to emerge … [which] suggests the beginning … of a risk cycle, an offending cycle.
[42] ts 207 - 208.
When asked if he could say why the respondent did not communicate his thoughts or feelings, Dr Wynn Owen said:[43]
It's … difficult to know with Mr Latimer. His ability to communicate aspects of stress, distress, internal world sexuality with the monitoring and supervising team, whether that has been a psychologist or the community corrections officer or SOMS staff, could be driven by a number of things. He would want to be seen to cope, and he's ‑ certainly when he does do things well, he's very proud of that, which is a positive thing. So he would not want to be seen to fail. There would be some awareness that if he was not being seen to cope, that may lead to adverse consequences for him, including return to jail, and it may be that he didn't have a concept that things were going wrong at all. It may be that he actually realised that this sort of thinking was not something that he should disclose, but it's very difficult to know where he would be in that sort of array.
[43] ts 208.
As to the sort of structure that Dr Wynn Owen considers to be necessary if the respondent were under supervision in the community, he said:[44]
[A] timetable, some form of a diary would need to be developed that had some fixed activities, some engagement in community social activity, possibly some voluntary work and an understanding that he would also have regular checks to see where he was and what he was doing on the assumption that he wouldn't necessarily volunteer if he was entering into an unstructured period of time. I mean, to what extent you would break down the day, I'm not sure how that would be achieved, but certainly there would be fixed requirements around reporting to his community corrections officer, attending sessions with the clinical psychologist and meetings with the sex offender management squad. But in addition to that, I believe far more structure would be needed. He's currently in a protection area in Acacia Prison. It's not the highest structured environment, but it's highly structured from the moment one is woken up throughout the day, and the shift from that to not having somebody saying time to get up, time to ‑ you know, is your cell clean, this is where you're going next, is an enormous change. And I think we've recognised an awareness that that structure in fact, if anything, protects Mr Latimer and makes him look as if he copes better than he actually can.
[44] ts 212.
He later said:
… I think … a program could be developed that if there was a tentative community structure already identified with and worked through with Mr Latimer, that could actually be transposed onto the Karnet situation so that he was already used to and familiar with ‑ I think that would be a very good idea and give some continuity and consistency. It would give him a goal as well in terms of if I achieve well in this it's more likely that I can achieve release because I'm demonstrating that sort of manageability component of risk, not just about my risk level changing, but I'm demonstrating that within this structure I have been able to cope. It's when Mr Latimer is not coping that he becomes at risk, I believe.
Ms Korda agreed with Dr Wynn Owen that the respondent's transfer to a less restrictive custodial environment would allow the knowledge and gains made by the respondent to be tested. She also made the point that, while it is obviously not an environment that is comparable to community living, it is less structured than the environment he has been in since his imprisonment.[45]
[45] ts 233.
What is clear from the evidence, in my opinion, is that while progression to a less structured custodial environment will provide a better approximation of living within the community in which to assess the respondent's ability to cope upon release, he would still require a significant amount of structure around him under a supervision order, greater, it would seem, than he had previously. The nature and extent of that structure is not clear, although it seems it may require the commitment of significant additional resources. As is apparent from Dr Wynn Owen's evidence, he is not certain how it would be achieved. Obviously, the Department would be expected to take a responsible and equitable approach to the allocation of resources, bearing in mind that there a number of persons it is required to monitor and manage under the DSO Act. It would also be expected, however, that if resources are available, steps would be taken to formulate a structure of the kind suggested by Dr Wynn Owen.
I am also satisfied from the evidence that the effectiveness of any structure around the respondent will depend to some extent on his understanding of its purpose and a capacity to identify circumstances in which he is not coping and requires additional support. Essential to that, it seems to me, is that he acknowledges and understands that he did not do well on the last occasion he was on a supervision order, and that he needs to make changes. Unfortunately, the evidence indicates that he has fallen well short of that during this review.
Ms Korda said this of the respondent's attitude during her interview with him:[46]
Mr Latimer, when I spoke to him, really didn't acknowledge that there was a lot that he could have done differently. He thought he did pretty well. Later on in the discussions, he was able to acknowledge that perhaps talking to women he didn't know ‑ it wasn't a good idea and that maybe not frequenting the CBD was something. Mr Latimer seemed aware that, if he was unsuccessful on a second release, it may result in his imprisonment indefinitely, and that seemed to be quite a strong motivating factor for him to do well. So he expressed his intention to be compliant with all of the conditions imposed on him during a second release even if he didn't necessarily agree with them. He … didn't have any specific concrete plans. I think he said to me it was actually the role of the CCO to develop those for him, but, putting that aside, he was able to express an interest in education and employment.
[46] ts 230.
While the respondent elsewhere indicated a willingness to continue to engage in counselling, and while, as I will outline shortly, Dr Wynn Owen considers that he has made some gains since the contravention proceedings, though limited, the lack of concrete plans in a context in which the respondent has no insight into the fact that he did not do well and there was much he could have done differently gives me no confidence that he could comply with the conditions of a supervision order at this time.
Previous psychological treatment
The respondent's progress in treatment in the year since the detention order was made on 20 April 2015, needs to be considered against the background of previous psychological treatment.
Since his imprisonment for sexual offences in 1993, the respondent has generally been assessed as unsuitable for 'offending‑specific' psychological intervention, due to his enduring stance of denial in respect of the majority of his sexual offences, interpersonal aggression, emotional volatility, and difficulty reflecting on his behaviour.[47] His attitude and behaviour, apart from his denial, meant that he was not suitable even after the entry criteria for participation in the sexual offender treatment programme became more flexible.
[47] Exhibit 1.8, Dangerous Sex Offender Treatment Progress Report of Ms Korda, dated 30 March 2016 (Korda Report) [1], [6]; ts 227, 229 ‑ 230.
Between 2008 and 2011, the respondent engaged in individual counselling sessions with Dr Tarmala Caple, which initially focused on motivation to engage in treatment, adopting a pro-social lifestyle, goal‑setting and emotional and behavioural regulation. Dr Caple considered that the respondent had made small gains in these areas, but noted that he experienced difficulties in maintaining those gains over time.[48]
[48] Korda Report [7].
In 2009, the respondent also completed the Legal and Social Awareness Program, during which he was considered to have made limited gains, and to have displayed 'grandiosity and entrenched anti‑social and anti-authoritarian attitudes.'[49] Counselling with Dr Caple reduced in frequency around that time, due to his participation in that program and his transfer to Karnet Prison Farm. His behaviour and attitude whilst at Karnet Prison Farm deteriorated significantly in 2010 to 2011, resulting in termination of psychological intervention and his return to Casuarina Prison.[50]
[49] Korda Report [7].
[50] Korda Report [7]; see also Director of Public Prosecutions (WA) v Latimer [No 4] [2011] WASC 125.
However, in late 2011, the respondent demonstrated new motivation to engage in treatment, and intervention commenced with Dr Dylan Galloghly. The respondent engaged positively with Dr Galloghly, focusing on self‑management strategies, background factors which influenced the development of a criminal lifestyle, preparation for release, scenario planning and goal setting. He also, at the same time, completed a sex offender's deniers' program in late 2012. He was reported to have made minimal treatment gains.[51]
[51] Korda Report [8]; see also Director of Public Prosecutions (WA) v Latimer [No 6] [2013] WASC 231 [5] ‑ [8].
Dr Galloghly had been the treating psychologist before the respondent was released on a supervision order by Jenkins J in June 2014. At the hearing, evidence was given by Mr David Summerton, a counselling psychologist with the Department's Forensic Psychological Service. Mr Summerton subsequently provided counselling to the respondent within the community.
In Director of Public Prosecutions (WA) v Latimer [No 7],[52] Jenkins J outlined Mr Summerton's conclusions. Of particular significance were the following matters:
1.Over the 18 ‑ 24‑month period before the review, there had been gradual and sustained improvement with respect to the respondent's involvement in intervention and a commensurate change in his capacity to regulate his behaviour.
2.There was evidence of a moderate softening in the respondent's anti‑authoritarian stance, such that he was more oriented to seeking and accepting help.
3.The respondent had developed some basic insight into the relationship between lifestyle instability and criminal behaviour.
4.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.
5.There was evidence of the respondent having some pro-social values. In particular, he desired to assist others less fortunate than himself and he had a developing awareness of the consequences of his actions.
6.It was considered that, while the respondent's treatment progress at that stage might be considered moderate, his gains might also be viewed as having exceeded what would have been expected of him at various stages over recent years.
7.The respondent was relatively more amenable to intervention and supervision than had previously been the case.
[52] Director of Public Prosecutions (WA) v Latimer [No 7] [2014] WASC 229.
It is apparent, therefore, that when Jenkins J released the respondent on a supervision order, the indications were that he had made treatment gains, albeit moderate, that suggested he could be managed within the community under strict supervision and that he could be expected to contribute to and facilitate such management. Key to those conclusions were matters concerning the respondent's attitudes to counselling and supervision and his capacity to address risk‑related situations and regulate his behaviour. Of course, he subsequently was found wanting in the last two areas.
Whilst the respondent was in the community (subject to the supervision order), sessions with Mr Summerton focused on his adjustment to the community, interpersonal interactions, his sexual functioning and his contraventions, when they arose.[53] The respondent raised issues relevant to his current functioning and adjustment to the community, and demonstrated a capacity to recall session content and to show a more pro-social orientation.[54] However, it is obvious he was not able to apply the session content and pro-social attitudes when he contravened the supervision order and demonstrated a heightened risk of reoffending. As Ms Korda points out in her report, the genuineness of the respondent's engagement in treatment and with support and supervisory personnel at that time needs to be questioned, given his failure to disclose the behaviour.[55] The respondent denied to Mr Summerton that he had engaged in the behaviour that constituted the contraventions, although he was receptive to a more indirect approach which considered situations that might place him at risk of further allegations.[56]
[53] Korda Report [9].
[54] Korda Report [9].
[55] Korda Report [27].
[56] Korda Report [9].
The above history illustrates that the respondent has had a lengthy history of professional intervention, some in group therapy, although mainly in individual counselling, but that his treatment gains have generally been regarded as small or minimal. On the occasion when the gains were considered to be better than that, prompting Jenkins J to find that much had changed in the respondent's life since he was sentenced in 2005, and that he had made positive steps towards rehabilitation, the respondent was not able to sustain the benefits of treatment beyond seven months after release, at which time he engaged in the contravening behaviour.
Progress while in detention during the last 12 months
From 20 April 2015 until the annual review, the respondent engaged in 19 counselling sessions with Mr Summerton, and was willing to do so.[57] The counselling focused on the respondent's reimprisonment, emotional regulation, self-regulation, sexuality and relationships, relapse prevention, how he wished life to look, and prison issues.[58] The respondent was usually talkative and well‑engaged but his approach was often dependent on his level of emotional arousal.
[57] Korda Report [14].
[58] Korda Report [10].
Ms Korda reported that, despite the respondent's 'enduring stance of overt denial' of his offending and contravening behaviour, during discussions with Mr Summerton he tended to make 'subtle, indirect acknowledgement' of inappropriate behaviour and alluded to factors relevant to his offending behaviour.[59] The respondent was also more receptive to considering situations that might place him at risk of further offending and strategies to manage them.[60] He was more willing to seek help from others, especially his younger brother who appears to be an important pro-social influence.[61]
[59] Korda Report [12].
[60] Korda Report [12]
[61] Korda Report [15].
Despite these indications of some improvement in his acknowledgement of inappropriate behaviour, and the fact the respondent was more receptive to considering risk scenarios and strategies, I am not satisfied, in light of his continuing denial of the contravening conduct, that he would be able to absorb lessons from such consideration and apply them within the community. This is particularly so in light of the opinions to which I will come concerning the extent of any gains made by the respondent in the previous 12 months.
Ms Korda reported that the respondent still perceives that he is being targeted and victimised by the police, which Mr Summerton attributes at least in part to his personality traits, rendering him extremely sensitive to criticism, prone to a paranoid thinking style and unable to admit any personal flaws or weaknesses.[62] Mr Summerton is of the opinion that 'to some extent, his denial, embellishment of his capabilities and self‑aggrandisement [are] a strategy to compensate for and hide his vulnerabilities.'[63]
[62] Korda Report [11].
[63] Korda Report [11].
Emotional regulation has been an enduring issue for the respondent and this is reflected in recent prison incidents. In response to interpersonal difficulties, such as bullying or ridiculing, he often responds by making threats to harm individuals. He has also used verbally abusive, threatening and/or derogatory language towards prison officers.[64]
[64] Korda Report [13], [21].
Overall, Mr Summerton considered that the respondent had made limited progress in addressing his sexual offending.[65]
[65] Korda Report [12].
Dr Wynn Owen's opinion, based on his interview with the respondent and the information from Mr Summerton concerning treatment, was similar. He noted that the respondent had started to show an appreciation of situations that might end in his return to custody. He also noted that, while the respondent was still not prepared to talk about his sexual offending, he had been prepared to talk about his sexual thinking. Dr Wynn Owen noted that this was the first time he had seen anything documented to indicate the respondent had been able to do that. His own questioning of the respondent in the past had elicited denials or significant minimisation of sexual thinking. He is of the opinion that the regular sessions with Mr Summerton had enabled the respondent to trust him and feel safe about 'at least starting those conversations'.[66] It was only a start, but it showed the development of a therapeutic relationship which, if maintained, would assist with the monitoring of the respondent's progress in prison and could improve risk management. Dr Wynn Owen considers that it is an area that could be the start of work to enable the respondent to develop risk avoidance by understanding his sexual thinking and how that might be linked to the risk of sexual offending.[67] Dr Wynn Owen also considered that the respondent is now showing the development of some understanding about the need for him to have some structure in his daily life, and to avoid boredom, despite this having been a consistent message over a long period of time.[68]
[66] ts 210.
[67] ts 210.
[68] ts 211.
However, as with Mr Summerton, Dr Wynn Owen considered the respondent's progress to have been very limited. He said:[69]
… I think it has been quite explicit that the gains have all been very, very limited. I've tried to put in some context my comments about Mr Summerton's positive engagement. I see them very much as a start point, but will only be of value if we find in the real situation that Mr Latimer is able to then express to Mr Summerton or others how he was thinking on the day rather than in a prison environment looking retrospectively.
[69] ts 215.
Mr Summerton was of the opinion that Mr Latimer's current prison placement was not conductive to him 'being in a space where he can reflect on his behaviour'.[70] Should the respondent remain in detention, he will continue to have counselling with Mr Summerton on a fortnightly basis.[71] Should he be released on conditions, this would be increased to a weekly basis, as the respondent will require considerable structure and activity, such as employment, and will not necessarily have the capacity to develop this on his own.[72]
Presentation during the present review
[70] Korda Report [13].
[71] ts 228 ‑ 229.
[72] Korda Report [16].
The respondent was interviewed by the forensic psychologist, Ms Korda, on 8 March 2016. In that interview he presented in 'a somewhat hostile and antagonistic manner', but then moderated his behaviour and responses towards the end.[73] However, he continued to deny engaging in the behaviours that constituted the contraventions that resulted in his re-incarceration. Ms Korda notes that 'somewhat contrary to his earlier assertions … the [respondent] stated that he regretted "fucking up" after his release from custody'.[74] This appears to be consistent with the 'subtle, indirect acknowledgement' of inappropriate behaviour in the respondent's discussions with Mr Summerton, to which Ms Korda refers elsewhere, and which I have already mentioned. In my opinion, it is so vague, in terms of what the respondent may have been acknowledging, that it does not detract from the conclusion that the respondent continues to deny the contravening behaviour.
[73] Korda Report [18].
[74] Korda Report [26].
The respondent also expressed the belief that if he had had fewer restrictions imposed on his behaviour he would have had greater success in the community and that others involved in his treatment and management shared the same opinion.[75] Of course, those involved in his treatment do not share that opinion, except perhaps in one respect. One of the matters about which the respondent complained was that he was prohibited under the supervision order from entering the premises or having access to the services of escort agencies or sex workers.[76] He considered that this left him without a sexual outlet and that, if he had been able to associate with sex workers, he may not have returned to prison.[77] The draft supervision order that was prepared by Ms Henshall for the annual review did not contain such a condition. She explained that it was removed after discussion with Dr Wynn Owen, Mr Summerton and Ms Korda, with the intention that the respondent would have the opportunity to engage a sex worker, but subject to a lawful direction by his Senior Community Corrections Officer to the contrary if it was considered inappropriate in any particular case.[78]
[75] Korda Report [20].
[76] Condition 37 of the Supervision Order made by Jenkins J on 30 June 2014.
[77] Korda Report [14]
[78] ts 244 - 245.
The respondent also made vague threatening statements to Ms Korda concerning the potential outcome of the annual review, along the lines that he would be livid and something would happen if he was denied release.[79]
[79] Korda Report [25].
As I noted earlier, the respondent did not acknowledge that there was much he could have done differently while on the supervision order, as he thought he did quite well. However, he was able to acknowledge that it had not been a good idea to talk to women who were strangers or to go into the CBD. I consider that it will be necessary for the respondent to demonstrate that such acknowledgment has translated to a longer term appreciation that such situations constitute risk scenarios before one could have any confidence that he has progressed in that area.
I accept Ms Korda's assessment that the respondent is motivated to do well because of the spectre of indefinite imprisonment. He told her that he intends to focus on education and employment and engaging with his psychologist, SOMS and UnitingCare West (UCW) when next in the community.[80] However, his expressed intention to be compliant with all of the conditions imposed on him if he were to be released must be considered against the background that he had expressed such intentions before his previous release, yet he contravened the order. His capacity to comply must be judged against more objective criteria. These would include demonstrated progress in his understanding of the circumstances that have resulted in his breaching the previous supervision order, and in his understanding and capacity to consolidate the information received in therapy for risk management.
[80] Korda Report [26].
I have referred in earlier discussion to Dr Wynn Owen's assessment of the respondent during the present review. In essence, he was of the opinion that the respondent had made very little progress, but his more recent engagement with the therapeutic process and the small progress that had been made indicated that there was some prospect for improvement in his understanding of risk and the preparation of risk avoidance strategies.[81] Ultimately, however, the respondent requires a highly structured environment, where he 'does not necessarily have to rely on his problem-solving and decision-making capabilities on quite such a frequent basis'.[82]
Outstanding needs and prospects of further treatment gains
[81] ts 215 - 216.
[82] ts 207, 212.
In terms of the respondent's outstanding needs and prospects of gains from further treatment, Ms Korda's assessment was summarised in her report as follows:[83]
Mr Latimer's entrenched antisocial personality traits, persistent emotional and behavioural dysregulation, denial of his offence-related behaviour, and episodic resistance to treatment suggest a poor prognosis for enduring and substantial behavioural change. In addition, he has identified neurocognitive deficits that have implications for his capacity to learn and generalise information. These do not necessarily preclude his ability to benefit from counselling and reflect on his behaviour and session content. Thus Mr Latimer is likely to require repeated reinforcement of, and assistance to maintain, pro-social skills and behaviour across time.
…
The most significant gains appear to have been the maintenance of a therapeutic relationship and his willingness to consider offending-related issues despite his denial of his sexual offending history and contraventions as well as his negative feelings about his return to custody. Outstanding treatment issues apparent include the development of relapse prevention plans, emotional and behavioural regulation, developing a more prosocial outlook, and interpersonal skills. These are best met through individual counselling as opposed to participation in group treatment programs, although Mr Latimer is unlikely to ever demonstrate substantial behavioural change and will require ongoing reinforcement and modelling.
[83] Korda Report [30], [33]; see also ts 231 ‑ 232 and 235.
Dr Wynn Owen is of the opinion that, because of the respondent's cognitive deficits and personality traits, he is unlikely to make significant treatment progress, and any future gains will probably go towards a further evolution of the risk management strategies that will assist in managing the risk that he poses to the community rather than to a reduction in the overall risk of re-offending.[84] However, as I have indicated above, Dr Wynn Owen considers that the development of the therapeutic relationship with Mr Summerton, the commencement of discussion about the respondent's sexual thinking and the development of some understanding by the respondent of the need for structure in his life provide a starting point for work that may result in some further gains.
What is required of the respondent?
[84] ts 222 ‑ 223.
I note again that, in the contravention proceedings, Hall J was of the opinion that, having regard to the respondent's high levels of psychopathy, this is not a situation where any self-restraint or control can be expected of the respondent. I understand his Honour to be referring to self-restraint or control in circumstances in which the respondent were to have sexual impulses while he was in a public place in which women were present. The conclusion would appear to be supported by the evidence on this review. That is the context, as I perceive it, in which his Honour considered that the focus of any further management of the respondent would need to be on whether there is any possible external management structure that can be put in place that could, effectively, control his risk such as to adequately protect the community. That conclusion does not preclude, in my opinion, an expectation that the respondent should demonstrate a better understanding of the need for the external management structure and what would be required of him to avoid risk scenarios, before the court could be satisfied that the conditions of a supervision order would be effective to adequately protect the community.
Therefore, while the need for a highly structured environment has again been identified as necessary for the adequate management of the respondent's risk within the community, his attitude to the contravening behaviour, or at least to recognising situations that will put him at risk of allegations that he has behaved in that way, are important, in my opinion, in assessing his suitability for release on a supervision order. In other words, there must be a sufficient evolution of the respondent's attitude to indicate that he would be capable of contributing to the management of his behaviour, to avoid risk scenarios. This must be considered against the background that there was a significant degree of structure and intervention under the previous supervision order, yet the respondent gravitated towards public spaces where he engaged in conduct that was indecent and intimidating towards women and placed him at high risk of again committing a serious sexual offence.
It is true that, as was foreshadowed by Jenkins J when she released the respondent on the supervision order, the fact he was being monitored, as part of the structured conditions, meant that intervention could occur before his conducted progressed to a serious sexual offence. However, given the nature of the contravening behaviour in which he engaged, ignoring the respondent's failure to accept responsibility for his conduct or to recognise risk situations, and relying on external constraints alone, has the potential again to expose female members of the public to behaviour of the kind that contravened the supervision order. That is not, in my opinion, a satisfactory way in which to ensure the adequate protection of the community against the respondent's risk of committing a serious sexual offence.
Expected progress in detention for the next review
It is expected that the respondent should work towards transfer to Karnet Prison Farm (or another similar facility) where the level of structure will be reduced and personal interactions increased, which would reflect the structure that would exist under any future supervision order to a greater extent than self‑care in a maximum security facility, although obviously not replicating life in the community.[85]
[85] ts 217 ‑ 218; 233 (Dr Wynn Owen).
Dr Wynn Owen explained the potential benefits as follows:[86]
If Mr Latimer were to be in detention for another 12 months, yes, containment would be provided, but it would be about what, in addition to containment, might both either address risk mitigation or give information about management. This is more about understanding manageability and management, but I think if we then – Mr Latimer is given the opportunity to live in a lower structured environment such as Karnet, he would have to do more problem solving. He would be tested more in terms of his decision-making. That would then look at how is he managing his emotional behaviour and regulation. I think that would be an opportunity to see ‑ it's not a midpoint, but it's certainly a less structured environment. How he might then cope with issues arising, working practical solutions around those with his psychologist as well as his preparations for release may well assist management on release.
No suitable accommodation available
[86] ts 213.
Stable accommodation is one of the key elements of structure that would assist the respondent to re-integrate into the community.[87] Dr Wynn Owen is of the opinion that, notwithstanding the respondent transitioned from prison to the community relatively recently, it will still be a stressful process for him.[88] It must be noted, of course, that the transition ultimately proved unsuccessful, in that he relapsed into behaviour of a kind that placed him at high risk of reoffending.
[87] ts 221 (Dr Wynn Owen).
[88] ts 221 ‑ 222.
Ms Henshall, the Senior Community Corrections Officer responsible for the respondent's management, gave evidence that, at the time of the annual review, the respondent did not have suitable private accommodation available. In addition, there was no available accommodation under the Department's DSO Supported Accommodation Program.[89] Her report provides details of six avenues of enquiry that were pursued, including with one of the respondent's brothers and various agencies in the private sector which provide temporary accommodation to homeless people. Accommodation was either not available or the respondent was considered to be unsuitable to meet entry criteria. The respondent is engaged with UCW under the DSO Supported Accommodation Program. Although at the time of the annual review UCW had not been provided with the full quota of properties that the Department of Housing had agreed to provide under an agreement made in 2013, it is not clear whether a property would have been available to the respondent in any event if the quota had been met. I am satisfied that adequate efforts have been made by the Department of Corrective Services to assist the respondent to find suitable accommodation.
[89] ts 239 ‑ 245; Exhibit 1.9, Department of Corrective Services Community Supervision Assessment Report of Ms Henshall, dated 13 April (Henshall Report), 2 - 4.
Therefore, at the time of the annual review, the respondent did not have suitable accommodation arrangements to allow for possible release into the community under a supervision order,[90] if I considered such an order would otherwise be sufficient to ensure the adequate protection of the community.
[90] ts 202, 222.
Conclusion
On the evidence presented in the annual review, I am satisfied that the respondent remains a serious danger to the community.
For the reasons I have given, I am also satisfied that, at this stage, the community cannot be adequately protected against the risk that the respondent would commit a serious sexual offence if he were released on a supervision order, even if suitable accommodation were available. In summary, that is because he has only recently commenced to engage with his psychological treatment in a way that indicates he may be making gains towards understanding the circumstances that have resulted in his breaching the previous supervision order and being placed in detention. Until he has demonstrated that he has achieved that understanding and consolidated the information received in therapy for risk management, the court can have no confidence that he would comply with any future supervision order so as to ensure the adequate protection of the community.
Although it would appear that he may never fully appreciate that the conduct that resulted in his return to detention is of a kind that puts him at risk of further serious sexual offending, the gains that have been described by Dr Wynn-Owen and by Ms Korda suggest that there is a prospect that, over the next 12 months, he will improve further to the point where he may be sufficiently advanced that his risk of committing a serious sexual offence can be adequately managed under a supervision order. That remains to be seen.
In any event, at the time of the annual review there was no suitable accommodation available, so a supervision order could not be made that would adequately protect the community at that time against the risk that the respondent would commit a serious sexual offence.
Consequently, I declined to rescind the continuing detention order and set the next annual review date for 20 April 2017.
Management of the respondent until the next review
It is expected that the respondent will continue to receive therapeutic intervention to enable him to build on the limited gains that were identified at this review, at least in respect of the identification of risk factors and strategies to avoid risk, if not by way of insight into his offending. He should also be given the opportunity to work towards transfer to Karnet Prison Farm (or another such facility) so as to increase his capacity for self-care and personal interactions in circumstances that will better reflect the structure that would exist under any future supervision order.
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