Director of Public Prosecutions (WA) v Misko [No 4] - [2016] WASC 4

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MISKO [No 4] [2016] WASC 4

CORAM: FIANNACA J

HEARD: 19 NOVEMBER 2015

DELIVERED : 25 NOVEMBER 2015

PUBLISHED : 8 JANUARY 2016

FILE NO/S: DSO 2 of 2012

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
JOHN TERRY MISKO
Respondent

Catchwords:

Criminal law - Dangerous sexual offender - Third annual review - Offender with cognitive disability - Whether detention order should be rescinded - Issue of availability of suitable accommodation if released - No new principles

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Expressly decline to rescind continuous 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

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

Director of Public Prosecutions (WA) v Dinah [No 8] [2016] WASC 2
Director of Public Prosecutions (WA) v Misko [2012] WASC 259
Director of Public Prosecutions (WA) v Misko [No 2] [2013] WASC 300
Director of Public Prosecutions (WA) v Misko [No 3] [2014] WASC 332
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 Unwin [No 3] [2013] WASC 178
Director of Public Prosecutions (WA) v Yates [No 2] [2015] WASC 201
FIANNACA J:

Introduction

This is the third annual review of a continuing detention order made by McKechnie J pursuant to s 17(1)(a) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) on 5 July 2012. His Honour found, in accordance with s 7 of the Act, that the respondent was a serious danger to the community and made an order that he be detained in custody for an indefinite term: Director of Public Prosecutions (WA) v Misko [2012] WASC 259.
The first annual review of that order was conducted by Simmonds J on 29 July 2013. His Honour expressly declined to rescind the continuing detention order: Director of Public Prosecutions (WA) v Misko [No 2] [2013] WASC 300. The second annual review was conducted by EM Heenan J on 19 September 2014. Again, his Honour expressly declined to rescind the continuing detention order: Director of Public Prosecutions (WA) v Misko [No 3] [2014] WASC 332.
The third annual review was conducted by me at a hearing on 19 November 2015 pursuant to an application by the Director of Public Prosecutions (the applicant) under s 29(1) of the Act. At the conclusion of that hearing the application was adjourned until 25 November 2015 in order that the court could be informed whether suitable accommodation was available for the purposes of a supervision order, if the court were to conclude that it was otherwise appropriate to release the respondent on such an order.
On 25 November 2015 it was evident that such accommodation was not available. However, I had come to the conclusion that a supervision order would not be appropriate in any event. Accordingly, I made orders expressly declining to rescind the continuing detention order and setting the date for the next annual review. I provided brief reasons and said I would provide full reasons in due course. Having arrived at the decision that I would decline to rescind the continuing detention order, I considered it appropriate to make the orders immediately so as not to extend unnecessarily the period before the respondent's next annual review.
These are the reasons for my decision.

Summary of findings

On the evidence presented at the hearing, I find that the respondent remains a serious danger to the community for the purposes of the Act. I am also satisfied that, at this stage, even if suitable accommodation were available, conditional release of the respondent on a supervision order would not provide adequate protection of the community against the unacceptable risk that the respondent would commit a serious sexual offence.
Although the respondent has completed the Sex Offender Intellectual Disability Program (SOID programme) and was considered to have made progress towards meeting programme objectives, he continues to have unmet treatment needs.
It had been considered that the respondent had become institutionalised, which was a significant obstacle to his ability to cope within the community and comply with a supervision order. On 5 January 2015 he was transferred to Acacia Prison. This has been a positive step towards the respondent's development in self‑management and a reduction of his dependency on medical professionals and prison staff. However, transition to self‑management has been relatively recent, and I am of the view, on the available evidence, that the respondent will need to continue to develop in that regard before his risk could be adequately managed in the community.
In that regard, I expect that over the next year the respondent will be given the opportunities necessary to continue his development. The expert evidence at the hearing was that he would benefit from a transfer to Karnet Prison Farm, where he will have the opportunity to develop even greater independence. In my view, that should be facilitated if it is at all possible, and every effort should be made to enable it to occur.
Even if I had come to a different view about the respondent's suitability to be released into the community, he would need to be in accommodation in which he was provided with considerable assistance. There is no suitable accommodation available to him at present.

Legislative framework and relevant principles

The annual review of a continuing detention order is governed by pt 3 of the Act. Section 33 provides:
33.Review of detention under continuing detention order
(1)When the court, on an application made under section 29 or 30, reviews a person's detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
(2)The court may, if it finds that the person subject to the order remains a serious danger to the community, either -
(a)expressly decline to rescind the order; or
(b)rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.
(3)In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.
In Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [9] ‑ [12] and Director of Public Prosecutions (WA) v Dinah [No 8] [2016] WASC 2 [19] ‑ [21], I referred to a potential issue that was discussed in Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95 (Corboy J ) and Director of Public Prosecutions (WA) v Yates [No 2] [2015] WASC 201 (Martin CJ) concerning the proper construction of s 33, in particular the status to be accorded findings made in a previous hearing which resulted in the detention order under review. As I indicated in Ugle [No 3] and Dinah [No 8], I am inclined to agree with the analysis by Hall J of the annual review process in Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] ‑ [18]. That approach assumes the correctness of the previous determinations that the offender was a serious danger to the community and that adequate protection of the community could only be achieved by a continuing detention order. The question then is whether there has been a change in the offender's circumstances, since the order was made, that affects the question of whether the offender remains a serious danger to the community or, if he does, the character of the order which must be made to provide adequate protection to the community.
As in the previous cases, it is not necessary to determine the issue in the present case. In practical terms, the focus of the inquiry, and of the submissions made by the parties, was whether the respondent's circumstances have changed since the last annual review, and whether such change renders a supervision order an adequate means of protecting the community at this point in time. As I have understood the respondent's case, he does not take issue with the determination at the last annual review, on the basis of his circumstances at that time, that a supervision order would not provide adequate protection against his risk of serious sexual offending. The respondent's argument is that he has made progress of such a nature that, provided suitable accommodation could be found, measures can be put in place under a supervision order now that would adequately protect the community against his risk of sexual reoffending.

Evidence on the annual review

At the commencement of the hearing on 19 November 2015 the applicant tendered, without objection, a book of materials dated 13 November 2015 (exhibit 1) and the book of materials (dated 24 July 2014) that was tendered at the second annual review in 2014 (exhibit 2). Having regard to the issues in the present review, it was considered unnecessary to tender the book of materials consisting of two volumes tendered at the Division 2 hearing in 2012. Factual materials contained in those volumes are sufficiently canvassed in exhibits 1 and 2. The details of the sexual offences of which the respondent has been convicted, to which I will refer in due course, were outlined in the applicant's written submissions and were not disputed by counsel for the respondent.
Exhibit 2 included the psychiatric and psychological reports relied on in the second annual review.
Exhibit 1 included a psychological report of Ms Joanne Collyer, Senior Counselling Psychologist with the Department of Corrective Services, dated 19 October 2015 (Collyer, 19.10.15), a Program Completion Report dated 3 November 2015 concerning the respondent's completion of the SOID programme (SOID report), a psychiatric report of Dr Gosia Wojnarowska, Consultant Psychiatrist, dated 8 November 2015 (Wojnarowska, 8.11.15), and a 'Community Supervision Assessment' report dated 12 November 2015 of Ms Julie Dabala, Senior Community Corrections Officer with the Department of Corrective Services (Dabala, 12.11.15). It also included a number of prison records concerning the respondent's period in custody since the last annual review, being a charge history, an incident history, incident reports and a 'health encounters report'.
An addendum report of Dr Wojnarowska, dated 18 November 2015, was also tendered (exhibit 1A).
Dr Wojnarowska, Ms Collyer and Ms Dabala also gave oral testimony at the hearing before me. Ms Collyer's report and her evidence in court included information from the respondent's treating psychologists over the last 12 months, Ms C Place and Dr K Borg. It is standard practice that psychological evidence in hearings under the Act is given by a psychologist who is independent of the therapeutic process. The ordinary rules of evidence do not apply to receipt of the contents of psychiatric and psychological reports in these proceedings: s 42(4) of the Act. There was no objection to the hearsay content of Ms Collyer's or Dr Wojnarowska's oral evidence.

Background

The respondent's background and the assessment of his risk of sexual offending and unsuitability for conditional release in previous years are set out in the decisions of McKechnie J, Simmonds J and EM Heenan J, referred to above. It is not necessary to restate the background or the findings made on those occasions in any detail for the purposes of these reasons, except where it is necessary to provide context for any changes in the respondent's circumstances established by the evidence in the present review. I note, however, that the facts of the sexual offences have not been set out in previous decisions. To provide context for some of the psychiatric and psychological evidence, I have outlined the offences in the next section.
The respondent was born on 17 December 1968. At the time of the hearing he was 46 years old. His delivery at birth was difficult and he was diagnosed by a psychiatrist in 1999 with having suffered 'anoxic brain damage', resulting in a 'mild intellectual handicap' (SOID report, 3.11.15). More recent psychiatric diagnoses have confirmed the 'mild cognitive impairment' and have also identified an alcohol dependence disorder (which has been in remission while he has been in custody) and an Antisocial Personality Disorder (SOID report, 3.11.15, page 2 - referring to a diagnosis by Dr Mark Hall in 2013; Wojnarowska, 8.11.15, page 8). The respondent also has a number of health problems.
The respondent has a lengthy criminal record, commencing when he was a juvenile. His offences include stealing, burglary, arson, assaults (including assaulting a public officer), dishonesty offences and traffic offences.

Sexual offences

The respondent has been convicted and sentenced for sexual offences committed on four occasions from 5 February 1993 to 1 January 1999.
He committed the first sexual offence on 5 February 1993. He approached the victim, a 29‑year‑old woman, outside a nightclub in Northbridge, gained her confidence and offered her a lift home. He took her to an isolated carpark where he assaulted her violently and rendered her incapable of resistance. He then sexually penetrated her. He left the victim unconscious on the ground and stole her money. The respondent was not identified as the perpetrator of the offence until 1998 when his DNA profile was obtained and found to match the DNA profile of the offender, obtained from the victim in 1993.
The respondent committed his second sexual offence on 14 or 15 May 1994. The respondent approached the victim at a nightclub. Despite her attempts to discourage him, the respondent followed the complainant home, where she allowed him in for a coffee. Expecting her flatmate to return and make the respondent leave, the complainant went to her bedroom. The respondent followed the complainant to her bedroom. She indicated to him that she was not interested in him. She then fell asleep and woke to find the respondent undressed and penetrating her vagina with his fingers. He tried to force the complainant to touch his penis and then tried to pull her underwear off. He then put his face against the complainant's groin. The incident ended when the complainant's flatmate arrived home. The respondent was dealt with for that offending in August 1995 when he entered a plea of guilty and was sentenced to 8 months' imprisonment (reduced from 2 years due to time already spent in custody).
The respondent committed his third set of serious sexual offences on 13 August 1997. He approached the victim, a 21‑year‑old woman, in Northbridge and befriended her. The victim was upset after having had a fight with her boyfriend. The respondent gained her confidence and offered her a lift home. He then took the victim to an underground carpark where he offered her money or drugs in return for sex. She refused. The respondent then drove the victim to Stirling where he stopped the vehicle and sexually assaulted her. He forced the complainant to masturbate him and perform fellatio upon him. He then penetrated her vagina both digitally and with his penis.
The respondent committed the fourth set of offences on 1 January 1998. He approached a prostitute in Northbridge and arranged to pay her for sex. Instead, he took her to an abandoned building, kicked her in the head several times and then sexually penetrated and indecently assaulted her several times over a period of three hours. When the victim tried to escape, the respondent held a piece of glass to her face and threatened to cut her. He then stole money from the victim.
It is apparent that the offences in 1997 and 1998 were committed after the respondent had served the term of imprisonment imposed in August 1995 for the 1994 offences.
On 21 May 1999 the respondent was sentenced to a total effective sentence of 20 years' imprisonment for the offences committed on 5 February 1993, 13 August 1997 and 1 January 1998. The offences consisted of four counts of sexual penetration without consent, five counts of aggravated sexual penetration without consent, two counts of assault occasioning bodily harm, indecent assault, aggravated indecent assault, deprivation of liberty and stealing.

Previous DSO proceedings

At the time of the Division 2 hearing in 2012, and at each of the annual reviews since then, it was accepted on behalf of the respondent that he was and remained a serious danger to the community for the purposes of the Act. The issue on each occasion has been whether he should remain in detention or whether his risk could be adequately managed by placing him on a supervision order. On each occasion the court concluded that there were no measures that could adequately protect the community if the respondent were to be released.
The respondent's offending had been associated with excessive drinking. At the time of the Division 2 hearing, neither the reasons for his sexual offending nor the drinking had been adequately explored or controlled. The respondent had demonstrated a lack of insight into the factors contributing to his offending and did not have realistic plans to prevent a relapse into sexual offending. In particular, he had declined to participate in courses, including the Intensive Sex Offender Treatment Program (ISOTP), that may have given him insight and enabled him to develop preventive strategies. McKechnie J identified the need for the respondent to develop the capacity, and the desire, to acknowledge responsibility for his sexual offending and to engage realistically in resolving his unmet treatment needs.
By the first annual review, the respondent had demonstrated a readiness to acknowledge his offending, but this was seen as the beginning of a possible significant change rather than an actual change in his attitude. He had not yet participated in a sex offender treatment programme, which was a necessary step for him to transfer to Karnet Prison Farm where he could demonstrate a capacity for self‑care. Simmonds J was of the view that individual counselling did not seem sufficient to reduce the respondent's risk of reoffending and provide him with the ability to comply with the terms of a supervision order.
At the second annual review, in 2014, evidence was given by Dr Wojnarowska, who had also given evidence at the Division 2 hearing in 2012. She noted a significant improvement in the respondent's situation in that he had established a good rapport with his then treating psychologist and she had been able to discuss with him the desirability of undertaking an ISOTP on an individual basis. Dr Wojnarowska explained that more was known by that stage about the respondent's cognitive disability and the problems arising from that condition, in particular that it was worse than thought in 2012, and that his way of thinking was very concrete and simplistic. She was of the opinion, because of the respondent's cognitive disability, that the existing ISOTP was not suitable for him; he required a special ISOTP adapted for the needs of the cognitively disabled.
A particular issue that militated against release on a supervision order was the respondent's increasing reliance on the support and structure provided by the prison environment and his dependence on prison staff to obtain for him regular medical treatment and counselling whenever he became anxious. This was of particular concern because his ability to deal with stress appeared to be decreasing, rather than increasing, and he coped with his anxiety principally because of the reassurances he was given by prison staff and counselling from medical staff.

The respondent had developed some insight into the nature of his offending and the role that his alcohol consumption played, but he was considered by Dr Wojnarowska to be extremely self‑focussed, dwelling only on how the offending affected him rather than the victims. Dr Wojnarowska also considered that the respondent continued to minimise the extent of his violent behaviour and that he wrongly denied the existence of anger towards women. These were of particular concern because of the tendency towards violence in his sexual offending.
There was a proposal for supervision through the Disability Services Commission, but Dr Wojnarowska did not consider that this would meet the need for close supervision (24 hours a day, seven days a week for the first three months) that she regarded as essential if the respondent were to be released into the community.
Evidence was also given at the 2014 review by Dr Dylan Galloghly, a psychologist. He reported that the respondent continued to resist moving to another prison (where he could progress towards self‑care) or to participate in an ISOTP or a Pathways (intensive substance abuse) programme. I note that the resistance to the ISOTP programme should perhaps be understood in the light of Dr Wojnarowska's evidence that the respondent required a specialised programme. Dr Galloghly said such a programme was not then available.
The respondent was considered by Dr Galloghly to have made significant progress in the six months prior to the 2014 review as a result of weekly individual counselling with a new psychologist, Ms Place. He had engaged well with that process. However, his gains were regarded as rudimentary, and there was less progress in the areas of interpersonal problem solving and stress management. The respondent still had outstanding significant treatment needs, in particular the need for a relapse prevention plan.
On the evidence before him, EM Heenan J was not satisfied that there was any measure which could be adopted which would be sufficient protection for the community if the respondent were released on a supervision order. Significant in that conclusion was his Honour's finding that:
It is, unfortunately, obvious that Misko has become institutionalised and is highly dependent upon the prison staff and medical team for elementary daily living skills and that his anxiety renders him deeply opposed to any change in his regime as, for example, demonstrated by his refusal to be transferred to Karnet Regional Prison even though such a transfer would provide an opportunity for better suited programmes and an ability to measure his performance in a less restrictive prison [20].
His Honour noted that there were no facilities, whether in the nature of supervisory programmes or suitable accommodation, available for the respondent.

The present review

There have been two significant developments since the last annual review.
First, on 5 January 2015 the respondent was transferred to Acacia Prison, a medium security prison, where he has been able to progress to a level of self‑care and become less reliant on the support structures provided by the more regimented prison environment at the maximum security Casuarina Prison, where he had been incarcerated until then. In particular, he initiated self‑care skills in the Independent Living Unit, where he cooks and cleans for himself, and there appears to be less reliance on prison staff, including medical staff. These are significant steps for someone who had become institutionalised, having spent the majority of his adult life in prison, and who was resistant to moving for some considerable time. The respondent has indicated to Ms Dabala that he misses Casuarina Prison, in particular his work in the infirmary there, which he appears to have enjoyed (Dabala, ts 217). So, his preparedness to transfer and his perseverance with his new arrangements may be regarded as clear evidence of his resolve to make progress with a view to eventual release under a supervision order.
Secondly, while at Acacia Prison, the respondent completed the SOID programme, which was implemented during 2015. He has also continued with individual counselling with Ms Place, attending 28 sessions since the 2014 review.

SOID Programme Completion Report

The SOID programme is a 74 hour programme designed for individuals with low cognitive functioning. It uses strategies that include simple concepts, repetition and rehearsal to increase an individual's insights into their offending behaviour, self‑monitoring and behavioural controls. The topics covered include relationships, social skills, thought and behaviour patterns, victim empathy, anger management, healthy sexuality, offence cycles and a management plan. The respondent completed the SOID programme over a period of four months from 22 May 2015 to 25 September 2015. During that period, the individual sessions with Ms Place focussed on materials from the SOID programme 'in order to assist his understanding and consolidation of the program material' (Collyer, 19.10.15 [9]).
The programme facilitators concluded that the respondent's participation in the programme was positive and that he made progress towards meeting the programme objectives, despite having refused to engage in sex offender programmes in the past. He accepted responsibility for his offending and demonstrated some victim empathy. He appears to have accepted that his behaviour was predatory, admitting that he would attend Northbridge inebriated for the purpose of finding women, which he said stemmed from a competitive relationship he had with his peers that related to 'picking up women'.
Some doubt has been cast by the psychological report (Collyer, 19.10.15 [10]) on the weight to be given to the apparent gains made by the respondent during the SOID programme, as he appears to have reverted to a position of denial in his sessions with Dr Borg. I will return to that matter in the next section.
Although the respondent acknowledged his sexual offending during the SOID programme, he was unable to explain why he had offended or why he became violent. He simply blamed his alcohol abuse, acknowledging that he had a problem with alcohol and that 'once past an unspecified point of inebriation he was prone to violent outbursts' (SOID report, page 5). He said his sex drive would increase when he was inebriated, and he believed he was not able to control his behaviour. It is important to note that, in exploring the causes of his behaviour, the programme facilitators sought information from the respondent about his sexual history, but they concluded that his 'propensity to fabricate and/or alter historical information made it difficult to comment on his sexual history with any certainty' (SOID report, page 4).
The respondent indicated during the programme that he understood his excessive alcohol use was a major risk factor for reoffending. He admitted that, in the past, apart from when he was drinking with peers, he had resorted to alcohol when he was alone and bored. His strategy for dealing with such circumstances in the future, if he were in the community, remains unclear. His expectations that he will be able to avoid a relapse into alcohol abuse continue to be unrealistic. He indicated during the programme that he believes his current medical issues, in particular his diabetes, would be a sufficient deterrent from alcohol use. It is an approach that fails to deal with the causes of his alcohol abuse and his sexual offending, in respect of which he still has limited insight. It is not a strategy. As the programme facilitators point out, there have been instances in prison in which the respondent has demonstrated a 'poor ability to self‑regulate or abstain from foods or behaviours that might negatively impact on his health' (SOID report, page 7).
The respondent continues to take a similar approach to his risk of sexual reoffending. He reported having no interest in sexual intercourse, as he had not experienced an erection since 2008. He believes this automatically reduces his risk of reoffending. However, his sexual offending was not confined to penile penetration, it involved a conquest mentality within his peer group, and his use of violence suggests factors at work other than libido. Again, reliance on his physical condition as a preventive factor is not a strategy.
Further, the programme facilitators noted that, while the respondent felt he had developed the skills to remain alcohol and offence free in the community, this appeared to be based on his unrealistic perception of prison as a reflection of community‑based life (SOID report, page 5). He indicated he would rely on family support, as well as the support of his counsellor and medical professionals. The extent to which family support would be available, given his high level of demand, appears to be speculative.
In short, while the facilitators considered that the respondent's participation and engagement in the programme was a gain, and that he had made progress towards meeting the programme objectives, they considered there remain outstanding treatment needs, particularly in the areas of emotional awareness and emotional regulation, coping skills and problem solving skills. Ms Collyer spoke with them for the purposes of preparing her report. They identified the following ongoing concerns relevant to his risk of reoffending:
1.Relapse to alcohol use;
2.Coping strategies yet to be trialled outside of a structured environment;
3.Rote learned material rather than internalised changes, which limited ownership and implementation of material;
4.Limited supports, and an idealised view of family that is unlikely to be matched with reality; and
5.Compromised mood and regression to past coping strategies that tend to be primitive and immature. These are likely when he feels that his needs are not being met (Collyer, 19.10.15 [23]; Collyer, ts 208).

Psychologist's evidence

Ms Collyer gave evidence that both Ms Place and Dr Borg indicated the respondent was a very motivated participant in the individual counselling sessions. He engaged and did his best. Although there is evidence that he engaged in the SOID programme enthusiastically, and that he felt a sense of achievement from having completed the programme (Collyer, 19.10.15 [24]; Wojnarowska, 8.11.15, page 6), he indicated to Ms Collyer that he had not learnt a great deal more from the programme than he had from the individual counselling, and he appears to have held the latter in higher regard (Collyer, ts 206).
However, both psychologists identified that the respondent demonstrated persistent limited recall and he struggled to understand material that was presented repeatedly, including material concerning misperceptions of the 'causes' of sexual assault and his offence cycle (Collyer, 19.10.15 [10]). Of significance, although he showed improved acknowledgement of his offending behaviour, it continued to be with qualification. In particular, during counselling sessions with Dr Borg, the respondent appeared to regress to a stance of denial that he had offended against women, suggesting that they had either consented or been paid for sexual services. Dr Borg also identified that the respondent appeared to have minimal motivation to engage or practice material from the SOID programme, and that he did not appear to believe he had done anything wrong.
As I indicated earlier, the apparent regression tends to cast doubt on the progress that the facilitators of the SOID programme believed the respondent had made. In addition to what was reported by Dr Borg, Ms Collyer noted that the respondent had also downplayed the violence in his offending during her interview with him. She said that in relation to the third victim (who, in context, I understood to be the prostitute, who was the victim of the fourth set of offences chronologically), the respondent 'readily acknowledged the violence' on the first occasion she spoke with him, but on the second occasion Ms Collyer saw him he claimed that he had paid that victim and had not inflicted any violence. He claimed the violence had happened to her before he saw her (Collyer, ts 207 ‑ 208). I note that Dr Wojnarowska, in her report, says that when she asked the respondent about additional violence during his sexual offending, he said, 'I could have done it,' referring to his third victim (Wojnarowska, 8.11.15, page 6). It is clear the respondent has been inconsistent in his acceptance of responsibility for the violence, at least in relation to the victim of the fourth set of offences.
When I sought clarification from Ms Collyer about the significance of the apparent regression and inconsistency to the respondent's risk of offending, her assessment was that these were likely a function of the respondent's 'strong investment in impression management', for which he had a history (Collyer, ts 214). Acknowledging that this was simply her hypothesis, she said that rather than seeking to impress people with his progress in treatment, he has a tendency to want to impress that he is a 'good guy', and forgetting that people know about his offending history, he believes that minimising his offending will portray him in a more positive light. Dr Borg had treated the respondent for a period of two months, between August and October 2015 (Wojnarowska, 8.11.15, page 5), when Ms Place was absent. Ms Collyer hypothesised that the respondent, as someone who had held the stance of denial for a very long time, may have slipped back to old ways at 'a point of anxiety over meeting someone new and wanting to impress them in a certain way' (Collyer, ts 214). She noted that Ms Place was able to 'pull him back into place' when she returned. She thought that his denial of violence towards the third victim on the second occasion he was interviewed by Ms Collyer might be explained by a desire to be seen 'as innocent as possible' as the court date came closer, which he has done in a very simplistic way.
In any event, Ms Collyer was of the view that 'the overall context is more supportive that he is owning the offending, with a couple of indications that he didn't do that' (Collyer, ts 214). She did not consider that the apparent regression or denial of violence is suggestive of an increase in his risk of recidivism. While that may be so, I consider that any tendency by the respondent to want to manage the impression he makes on others who may not be aware of his history is a matter of concern in terms of his ability to comply with the strict conditions of a supervision order, which would include an obligation to make full disclosure of his past offending and the supervision order to anyone with whom he may commence a domestic, romantic, sexual or otherwise intimate relationship. Ms Collyer acknowledged that it could be problematic if he is 'interacting with people'.
As Ms Place has worked most closely and most extensively with the respondent over the last year, I consider that significant weight should be placed on her assessment of the respondent's continuing treatment needs. According to Ms Collyer, Ms Place identified that following completion of the SOID programme and corresponding individual intervention, the respondent has significant ongoing treatment needs across a number of areas (Collyer, 19.10.15 [13] ‑ [18]). I note, in particular the following:
1.In respect of substance abuse, the respondent's relapse plans continue to be simplistic.
2.He continues to have limited insight regarding his offending and capacity to cope with day‑to‑day stressors.
3.He requires ongoing intervention to retain sufficient understanding of his offence cycle and overcome related cognitive distortions such as denial, limited understanding of consent, use of violence and recognising precursors to offending beyond alcohol intoxication.
4.He continues to display simplistic problem‑solving strategies.
5.While he has demonstrated improved living skills while in Acacia Prison, his skills could be further improved, as unit staff identified that the respondent still demonstrates demanding and immature behaviour when his needs are not met. (I note this coincides with the last of the ongoing concerns identified by the facilitators of the SOID programme.)
Ms Collyer concluded that, despite the fact that the respondent's participation in the SOID programme and a concomitant move away from Casuarina prison was seen as a significant step, he continues to demonstrate an impoverished understanding of his offending behaviour, which is no doubt influenced by his reduced intellectual capacity, personality profile and general deficits in social functioning (Collyer, 19.10.15 [41]). Treatment gains will continue to be slow, requiring ongoing exposure and repetition to learned material and the ability to apply these skills in a less restrictive environment. The respondent is unlikely to benefit from further intensive group or individual intervention in custody, however a reduced regime of individual counselling to continue and focus on topics related to his sexual offending would suffice in assisting his ongoing difficulties with retention. If the respondent were to be released back into the community under a supervision order, weekly individual counselling and significant support and structure would be necessary (Collyer, 19.10.15 [42]).

Psychiatric evidence

Dr Wojnarowska noted the significance of the respondent completing the SOID programme and his preparedness to transfer from Casuarina Prison to Acacia Prison where he has taken steps towards independence through self-care skills and a reduced reliance on staff. In her opinion, the latter has demonstrated that, although the respondent is institutionalised, he has the capability to move forward and to adapt to a less structured environment (Wojnarowska, ts 182). Dr Wojnarowska considers that, if the respondent is not released on a supervision order, he should progress further within the prison system and be encouraged to an even less structured environment, such as Karnet Prison Farm (Wojnarowska, ts 182 ‑ 183).
In terms of the limited nature of the insights gained by the respondent into his sexual offending, from the treatment he has received over the last 12 months, Dr Wojnarowska said she would not expect him to achieve any in‑depth understanding of his motives because of his cognitive limitations. She said:
So superficially, he understands why he has offended and for him this is very much about alcohol, boredom, lack of meaningful employment or activity. I don't think we can expect that kind of understanding would ever be more profound (Wojnarowska, ts 183).
In her opinion, the respondent has reached his potential in terms of treatment.
As to his apparent regression to a position of denial in his discussions with Dr Borg, Dr Wojnarowska had initially thought Dr Borg was male and that the inconsistency might be due to the respondent relating differently to a male counsellor. Her addendum report was prepared when she learnt that Dr Borg was a woman, so that gender was not relevant. At the hearing, Dr Wojnarowska suggested that the apparent regression may simply be a reflection of the respondent's limited cognitive abilities and, perhaps, his memory problems. She said that denial does not increase the risk of sexual reoffending, per se, but it creates a barrier to progress in treatment. In the respondent's case she does not think there will be further progress in treatment in any event (Wojnarowska, ts 185). Nevertheless, she considered that the regression indicates he requires constant supervision and reminding of why he is a dangerous sex offender.
Dr Wojnarowska identified a number of factors relevant to the respondent's risk that persist, despite the treatment he has received. One is an attitude that supports or condones sexual violence. In her report, she stated:
Mr Misko's sexual violence demonstrated his attitude of little regard towards women. He appeared to view them as objects for his own sexual gratification. He has been unable to maintain long-term relationships. He has a chronic pattern of antisocial behaviours with a lack of concern for the impact of these. Although not clearly stated in the current interview, I am of the opinion that this factor is still present and needs to be continually addressed within therapy (Wojnarowska, 8.11.15, page 9).

When asked to clarify this in evidence she said that there is in the respondent's history a chronic pattern of antisocial behavior that is hard to shift in any person, and when she broached the subject with him, 'he could not provide any evidence that his thinking is different at this point in time', that is, in the way he spoke about women (Wojnarowska, ts 192). She gave examples of the questions she asked (concerning issues such as the role of women in society and in families, their rights, what he would do if he had an argument with a woman) and said that while his answers were 'correct', there was no depth or meaning behind them, so her opinion was based on his mental state examination and non-verbal demeanour, rather than on what he said (Wojnarowska, ts 192 ‑ 193). This makes it difficult for me to assess the weight I can place on this factor. On the one hand, the existence of the attitude at the time that he was offending can be readily inferred, and I also accept that such a chronic pattern of behaviour indicates that the attitude is one that is hard to shift. On the other hand, there is evidence that the respondent demonstrated some victim empathy during the course of his treatment. Given Dr Wojnarowska's experience and her familiarity with the respondent's case since 2012, I accept her assessment that the evidence does not positively show a shift in the respondent's attitude.
Dr Wojnarowska also considers that the risk of the respondent resorting to alcohol remains a significant factor. She noted in her report that, on his own account, substance use and alcohol can lead to him behaving impulsively and aggressively in a sexually violent manner. Given his alcohol dependence, she considered his abstinence in custody to be commendable, but made the point that this is not a guarantee that he will not relapse in the community, in particular given his limited insight into his motivations, weaknesses and psychological make up. She concluded that, while the respondent accepts the association between substance abuse and offending, he appears to have an unrealistic expectation that he would not have any problems with alcohol in the community due to his medical issues (Wojnarowska, 8.11.15, page 11). She indicated in evidence that she did not think the respondent's achievements in losing weight and improving his health could give one confidence that he would abstain from alcohol use. She expressed the view that there is a very real risk that the respondent will resort to substance use when he is frustrated or bored. In particular, alcohol would give him a quick sense of relief from anxiety and would raise his mood (Wojnarowska, ts 192). She expressed concern that, if he was in a group of flats, there would be others who might encourage him to drink and perhaps bring women to his place, so a prohibition on his attending Northbridge or nightclubs would not necessarily overcome the risk that he would relapse into alcohol use and come into contact with women (Wojnarowska, ts 195).
The risk factors otherwise identified by Dr Wojnarowska are the same as have been identified in previous proceedings. She acknowledges that he has made some progress since his last review in the areas of self‑awareness and problems with stress and coping, and in achieving a degree of independence from prison staff, including medical staff, but there are significant ongoing treatment needs, as outlined earlier. She considers that the potential for further progress is severely limited by his modest cognitive abilities and his personality structure.
Dr Wojnarowska is of the opinion that the respondent remains a high risk of committing a serious sexual offence if not detained or subject to a supervision order with strict conditions. She is of the opinion that the risk would be imminent if he was released and not subject to very strict supervision. The respondent's progress to a level of self‑care has caused her to revise her opinion, given at the last annual review, that the respondent would need supervision 24 hours every day for a period of time. She expressed her current view as follows:
When I talk now about supervision, I refer more to the external agencies, such as psychology and Department of Corrective Services, of his community corrections officer. I don't necessarily think that he needs to be watched 24 hours by the staff within his proposed accommodation (Wojnarowska, ts 185).
I'm sort of thinking about very strict supervision so - and the department has an input to the workplace and monitors Mr Misko's whereabouts, not only at night-time but also on his return from work. And even in the morning whether, you know, he - to ensure that his route from his flat to his employment is straight and he doesn't diverse (sic) anywhere and that he comes home after work and does not engage with after work activities with other employees (Wojnarowska, ts 196).
However, subject to there being 'structure, appropriate accommodation and employment or meaningful activity' in place, Dr Wojnarowska is of the opinion that the respondent could be managed in the community. She elaborated as follows:
We are looking at accommodation that where he's not left to his own devices, that perhaps Disability Services provide some hours during the day that Mr Misko is supervised or supported. So I'm of the opinion that he cannot manage on his own and he won't be able to manage and this is due to his disability and the propensity to - for maladaptive behaviour when he's not provided with those structures and opportunities like reverting to alcohol use, going to nightclubs, seeking outlet in sexual activities, so this is a concern (Wojnarowska, ts 191).
It is evident that Dr Wojnarowska's opinion that the respondent could be managed in the community is very qualified. A supervision order will always assume that an offender cannot be left to manage his risk on his own. However, the degree of structure and support that Dr Wojnarowska considers necessary for the respondent's risk to be adequately managed in the community highlights, in my view, the shortfalls that remain in the respondent's progress from his situation at the last annual review, particularly in terms of insight into his risk factors and strategies for dealing with them. Dr Wojnarowska said she would expect the respondent to continue to receive counselling from Ms Place, initially at least weekly (Wojnarowska, ts 197). As for the period during which this would need to continue, she said:
I do think that it's an almost indefinite sort of process and I wouldn't be able to commit myself to any timeframe because I do think that there are so many dynamic factors that would need to be addressed while he is progressing in the community that I think he needs to have someone highly qualified who would be able to monitor his mental state and have a good relationship with him and an understanding of his offending and his disability (Wojnarowska, ts 200).
Dr Wojnarowska was of the view that, if the respondent were released on a supervision order, the duration of the order would need to be very much at the upper end for such orders.

Community supervision assessment

Ms Dabala's report and oral evidence primarily addressed the issues of whether suitable accommodation was available for the respondent in the community and what support he could be provided, given his cognitive disability.
The Disability Services Commission (DSC) is a government agency that provides support and services to persons with disabilities. It has confirmed that support will be provided to the respondent, that funding will be available, that a case officer has been allocated to the respondent and that there is a proposed plan in the event that he were to be released. The funding is for support only, not for accommodation. The level of funding had not yet been determined at the time of the hearing, but the application was for sufficient funding to provide the respondent with intense support upon initial release into the community, with a gradual reduction over nine months from 20 hours per day to five hours per day in the expectation that the respondent will have re‑established himself in the community. The DSC would assist the respondent to connect with other specialist agencies and services, and would assist him to find employment and recreational activities and generally to 'reengage with a changed environment' (Dabala, 12.11.15, page 4), including attending to activities such as banking and shopping.
The DSC would provide the respondent with social trainers for the purposes outlined. Their role would not be to manage the respondent's risk of reoffending, although if they observed behaviour that was known to be in breach of the supervision order, for instance, buying alcohol, it would be expected by the Department of Corrective Services that such behaviour would be reported by the social trainers.
An issue arose during the hearing about a potential tension between the need to ensure that the respondent would engage with DSC, which would be essential to his supervision and the management of his risk, and the policy of DSC that it will only provide services if the person with the disability engages voluntarily. In practical terms it is unlikely to be a problem in the present case, if the respondent were to be released on a supervision order in due course, because he has expressed some anxiety about returning into the community and it can be assumed he would welcome the support. However, from the community's perspective, in the circumstances of this case, it would be highly desirable for there to be a condition that either directly or indirectly (through instructions given by a Community Corrections Officer) compelled the respondent to engage with DSC, so that disengagement would be a breach that would provide a mechanism for the respondent to be brought back before the court. Non‑compliance itself would be an indicator of elevated risk. However, Ms Dabala did not know whether such a condition, or an instruction from a Community Corrections Officer, would be regarded by DSC as inconsistent with their requirement that engagement must be voluntary. She thought it may be the case, but the question would need to be directed to DSC. In my opinion, there should be evidence from DSC about this issue in any future hearing where the involvement of that agency is seen as essential to the adequate management of an offender's risk in the community.
There is no private accommodation available for the respondent, were he to be released on a supervision order. He is dependent on Outcare for accommodation. Outcare is one of the non‑government agencies with which the Department of Corrective Services has a contract to provide support and accommodation to persons who are found to be dangerous sex offenders and who are being considered for release into the community. It supports such persons with reintegration into the community. However, it has only two houses available for such persons who are released on supervision orders. The houses are provided by the Department of Housing. As I indicated earlier in these reasons, the matter was adjourned so that the court could be informed about the availability of one of those houses, as the position was not known at the time of the hearing on 19 November 2015. As it transpired, neither house was available to the respondent.

Conclusions

The respondent remains a serious danger to the community for the purposes of the Act. That is not in dispute. I am satisfied that his risk of committing a serious sexual offence is high and would be imminent if he were to be released into the community. The offending is likely to be similar to his previous offences: he is likely to be intoxicated with alcohol; it would involve gaining the confidence of a woman with whom he has become casually acquainted; violence is highly likely to be involved and it could be severe; and the impact on the victim is likely to be severe, both psychologically and physically (Wojnarowska, 8.11.15, page 13).
Conditional release of the respondent on a supervision order is not feasible because there is no suitable accommodation available to him. However, even if such accommodation were available, I am not satisfied that a supervision order would provide adequate protection of the community against the unacceptable risk that the respondent would commit a serious sexual offence. The paramount consideration is the protection of the community.
While there have been positive changes in the respondent's circumstances since the last annual review, I am not satisfied they are sufficient to enable me to conclude that his risk can be adequately managed in the community.
I accept that the respondent engaged in both the individual counselling sessions and the SOID programme with enthusiasm and a genuine desire to make progress in his treatment as a sex offender. The importance to him of the progress he believed he had made during the individual counselling was manifest to Ms Collyer when the respondent became teary while discussing that topic (Collyer, 19.10.15 [24]). His account to both Dr Wojnarowska and Ms Collyer of the lessons he had learnt confirms the conclusion that he has made some progress in his treatment. However, his perception of the extent of his gains is out of step with the assessment of his counsellors and the facilitators of the programme, as well as with the views of Dr Wojnarowska and Ms Collyer. There are significant areas of insight, attitudes and behaviour, which I have outlined above, in respect of which he has not yet made sufficient progress. In my opinion, the respondent requires ongoing intervention in detention to enable him to progress further in those areas to a point where the conclusion can be drawn that his risk can be managed under strict supervision in the community.
The main concerns that militate against the conclusion that his risk could be managed under a supervision order at present are:
1.The respondent's plans for avoiding a return to alcohol dependence and abuse remain simplistic. He must develop further insight into his previous abuse of alcohol and the means by which he will avoid a relapse in the community, beyond relying on the simplistic expectation that his health concerns will cause him to abstain.
2.He has not yet demonstrated an adequate capacity:
(a)to retain a sufficient understanding of his offence cycle, including his use of violence;
(b)to overcome what were referred to by Ms Collyer as 'related cognitive distortions', such as denial, his limited understanding of consent and an attitude that condones violence; or
(c)to recognise precursors to offending beyond alcohol intoxication.
3.The respondent's propensity for 'impression management', which both Ms Collyer and Dr Wojnarowska referred to as a potential explanation for his regression to a position of denial with Dr Borg, undermines confidence in his capacity to comply with what would be an essential condition of any supervision order, that he disclose his past sexual offending to anyone with whom he may form a domestic or intimate relationship. A failure to make such disclosure would be a significant risk factor. The facts of his sexual offences, as outlined above, reveal that manipulation to gain the confidence of women was a significant aspect of his offending. The respondent will need to demonstrate that he is prepared to acknowledge and disclose his sexual offending without minimisation to manage impressions.
In relation to the second numbered item, the respondent requires continuing intervention to develop his retention of learned knowledge, improve his understanding of precursors and avoid regression on matters such as acknowledgment of his offending. Although both the psychiatric and psychological evidence suggests that the respondent may have reached the limit of his progress in some areas of treatment, it seems to me that the recommendation of both Dr Wojnarowska and Ms Collyer that the respondent should continue to have counselling with Ms Place recognises that benefits may yet be gained by him from continuing intervention.
Finally, while the respondent's transition to self‑care in Acacia Prison has been a positive step towards demonstrating that he could integrate into community living with appropriate support, the transition has been relatively recent (in the context of someone who has been imprisoned for over 15 years and had become institutionalised), and the evidence supports the conclusion that his skills can be further improved, particularly in light of what has been perceived by prison staff to be demanding and immature behaviour when his needs are not met. The evidence of Dr Wojnarowska is that the respondent could benefit from transferring to an even less structured environment such as Karnet Prison Farm. I have come to the conclusion that the respondent will need to continue to develop his self-management skills before his risk could be adequately managed in the community.
As I indicated earlier in these reasons, I expect that over the next year the respondent will be given the opportunities necessary to continue his development, including a transfer to Karnet Prison Farm if that is possible after the appropriate security assessment. The security issue is raised because at one stage the respondent had indicated that, if he was not released on a supervision order, he wanted to return to Casuarina Prison, and if he was sent to Karnet Prison Farm he would escape. However, Ms Dabala said in evidence that, in her most recent discussion with the respondent, he had indicated a preparedness to go to Karnet Prison, and she regarded the earlier statement as just talk.
The respondent must realise that his prospects of release on a supervision order in the future will depend on his demonstrating further improvements, and a successful transition to Karnet Prison Farm will be a further positive step.
At this point in time, for the reasons I have given, I am satisfied that it is necessary for the adequate protection of the community that the respondent continue to be detained in custody for an indefinite term for control, care and treatment.
Accordingly, I expressly decline to rescind the continuing detention order that was made on 5 July 2012 by McKechnie J.