Director of Public Prosecutions (WA) v Pindan [No 2] - [2012] WASC 234

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- PINDAN [No 2] [2012] WASC 234

CORAM: JENKINS J

HEARD: 14 & 24 MAY 2012

DELIVERED : 28 JUNE 2012

FILE NO/S: MCS 55 of 2010

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
ADRIAN PINDAN
Respondent

Catchwords:

Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for continuing detention order - Whether the respondent is a serious danger to the community - Continuing detention order

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 7, s 7(1), s 7(3), s 8(1), s 17(1), s 17(2), s 18(2)
Evidence Act 1906 (WA), sch 7 pt B

Result:

The respondent is a serious danger to the community
Continuing detention order made

Category: B

Representation:

Counsel:

Applicant: Mr J McGrath SC
Respondent: Ms M R Barone

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Aboriginal Legal Service (WA)

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

Director of Public Prosecutions (WA) v Pindan [2012] WASC 13
Director of Public Prosecutions for Western Australia v McGarry [2009] WASC 226
Italiano v The State of Western Australia [2009] WASCA 116

JENKINS J: This application for orders that Mr Pindan is a serious danger to the community and should be subject to continued detention is made by the Director of Public Prosecutions for Western Australia (DPP) pursuant to the Dangerous Sexual Offenders Act 2006 (WA) s 8(1).
Mr Pindan applied for a stay of the DPP's application on the basis that it was an abuse of process because he is unable to participate in or make a defence to the DPP's application. In the Director of Public Prosecutions (WA) v Pindan [2012] WASC 13, I published my reasons for refusing to stay the application. I then heard evidence and submissions relating to the substantive application.
These are my reasons for finding that Mr Pindan is a serious danger to the community and for making a continuing detention order in respect of him. These reasons should be read together with my earlier reasons.
My first obligation is to determine whether Mr Pindan is a serious danger to the community: the Act s 7. If I find that he is, I must make either a continuing detention order or a supervision order: the Act s 17(1) In deciding whether to make one of these orders, the paramount consideration is the need to ensure adequate protection of the community: the Act s 17(2).
Mr Pindan has been represented throughout these proceedings but, because of his cognitive impairment his counsel, Ms Barone, is able only to obtain very basic instructions from him. Mr Pindan has told his counsel and others that he wants to be released from prison and go to live in Broome or another community in the Kimberley area of the State. As a consequence of the difficulty in his counsel obtaining instructions from him, Mr Pindan's counsel did not present evidence challenging the DPP's case that Mr Pindan is a serious danger to the community. However, she did not concede, on Mr Pindan's behalf, that he was a serious danger to the community and she submitted that the DPP had not proven that Mr Pindan met the criteria in the Act s 7(1).
As a consequence of Mr Pindan's cognitive impairment, his inability to give full instructions to his counsel and his inability to present a positive defence to the application, I have a responsibility to examine the DPP's evidence and submissions in respect of the first aspect of the application with special care.
Mr Pindan's counsel challenged the DPP's evidence in respect to the consequential order I should make if I found that Mr Pindan was a serious danger to the community. She submitted on his behalf that the risk of him committing a serious sexual offence in the future could be managed under a supervision order.

The law

The relevant law has been stated in a number of cases. I summarised the relevant legal principles in Director of Public Prosecutions for Western Australia v McGarry [2009] WASC 226. Further guidance to judges at first instance has been given by the Court of Appeal in Italiano v The State of Western Australia [2009] WASCA 116. However, Italiano essentially confirmed the existing principles. I have applied the principles there stated to the facts of this case.
Before I can make an order under the Act s 17 for Mr Pindan's continuing detention or supervision, I must be satisfied that Mr Pindan is a serious danger to the community. Before I can make such a finding, I must be satisfied that there is an unacceptable risk that, if he is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. A 'serious sexual offence' is an offence contrary to a provision of the Criminal Code (WA) which is specified in the Evidence Act 1906 (WA) sch 7 pt B.
Before I can make such a finding, I must be satisfied by acceptable and cogent evidence, to a high degree of probability. Once I am satisfied that there is an unacceptable risk that, if Mr Pindan is not subject to a continuing detention order or a supervision order, he will commit a serious sexual offence, it inevitably follows that he is a serious danger to the community. In Italiano [46], Buss JA said that the assessment as to whether a respondent poses such an unacceptable risk:
… necessarily connotes a balancing exercise, requiring the court to have regard to, amongst other things, the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order), on the other, if an order is made.

The Act s 7(3)

The Act s 7(3) sets out 10 matters which I must have regard to when determining whether Mr Pindan is a serious danger to the community. I will now consider each of these matters in turn.

Psychiatric reports prepared under the Act s 37 and the extent to which the respondent cooperated with the psychiatric examinations

The court ordered Mr Pindan to undergo examination by two psychiatrists, Dr Wynn Owen and Dr Febbo, for the purpose of the Act s 37. In my previous reasons I noted that Mr Pindan attempted to terminate the three interviews which Dr Febbo conducted with him [74] and that Mr Pindan was unable and/or unwilling to answer the majority of questions Dr Wynn Owen asked of him [90].
I accept that Mr Pindan did not make an informed decision not to cooperate with the psychiatric examinations. He did not cooperate because of his cognitive impairment and his consequent inability to understand the purpose and utility of the examinations.
This is not to say that his lack of cooperation is irrelevant to my decision. The fact that Mr Pindan is unable to comprehend the relevance and importance of psychiatric examinations and treatment means that if he requires psychiatric, psychological or medical treatment so as to reduce his risk of committing serious sexual offences in the future, it will be very difficult to obtain his cooperation with such examination and/or treatment, let alone informed consent to such examination and/or treatment.
In my previous reasons, I set out many of the matters referred to by Dr Febbo and Dr Wynn Owen in their reports. However, I did not detail their findings in respect of Mr Pindan's risk of committing further serious sexual offences.
Dr Febbo used risk assessment tools to assist him to formulate an opinion as to Mr Pindan's risk. He acknowledged that these tools must be used with caution, given Mr Pindan's background.
In Dr Febbo's opinion, Mr Pindan's total score on the Static‑99 placed him in the high risk category. He said that individuals in this category, as a group, have a 39% chance of sexual offending within a five‑year period. He noted that the Static‑99 gives little specific detail about those who are at risk, on an individual level, and that it does not take into account dynamic factors.
Dr Febbo gave Mr Pindan a total score of 19 points out of a possible 40 points on the Hare Psycopathy Check List - Revised (PCL‑R). According to the PCL-R manual, Mr Pindan's score places him at the 36 percentile when his score is compared to those based on a pooled sample of 5,408 male offenders. Put another way, 64% of correctional offenders are more psychopathic than Mr Pindan is. Mr Pindan's score is significantly below the cut‑off traditionally used to diagnose psychopathy.
Dr Febbo's view using the Historical, Clinical, Risk‑20 (HCR‑20), and using the traditional categories of low, moderate and high risk, is that Mr Pindan's final risk judgment is high. In making this judgment Dr Febbo noted that Mr Pindan had a number of historical risk factors for violence, including previous violence, employment problems, major mental illness, previous supervision failure, relationship instability, substance abuse problems, a young age at first violent incident, personality disorder, lack of insight, unresponsiveness to treatment, impulsivity, symptoms of mental illness, exposure to destabilisers, stress, lack of feasible plans, lack of support and non‑compliance with remediation attempts. Dr Febbo also noted the absence of psychopathy and inadequate information to comment on early maladjustment.
On the RSVP (Risk for Sexual Violence Protocol) Dr Febbo concluded that there are 15 definite and two possible risk factors out of a total of 22 risk factors. In relation to the first domain of sexual violence history, Dr Febbo is of the opinion that Mr Pindan engages in sexual violence that is chronic and diverse in nature and which involves physical coercion. In respect of the domain of psychological adjustment, Dr Febbo is of the opinion that Mr Pindan engages in extreme minimisation or denial of sexual violence, that he has serious problems with self‑awareness and that he will have serious problems with stress or coping. In respect of the third domain of mental disorder, Dr Febbo is of the opinion that Mr Pindan has a major mental illness, being a reference to his opinion that Mr Pindan possibly has a psychotic illness in addition to cognitive impairment and an organic personality disorder. Dr Febbo is also of the opinion that Mr Pindan has serious problems with substance abuse and that there is possible or partial evidence that Mr Pindan has serious violent or suicidal ideation. In the fourth domain of social adjustment, Dr Febbo is of the opinion that Mr Pindan has serious problems with intimate relationships, non‑intimate relationships and employment. In the fifth and final domain of manageability, Dr Febbo's opinion is that Mr Pindan has serious problems planning for the future, with treatment and with supervision. After noting that Mr Pindan's presentation made it difficult to obtain a comprehensive history in relation to various factors in a risk assessment and that his lack of engagement added to the difficulty in assessing risk, particularly in assessing Mr Pindan as a traditional Aboriginal man, Dr Febbo said that Mr Pindan is likely to have difficulty engaging with individuals and services that would be charged with monitoring and supporting him should he be released subject to a supervision order.
In conclusion Dr Febbo said that the following factors were relevant in Mr Pindan's presentation:
1.Mr Pindan's major problems with alcohol abuse;
2.Mr Pindan's cognitive impairment and personality change related to alcohol abuse, possible head injury and Rathke's cyst meant that he has poor impulse control, impairment in insight and judgment and a lack of ability to plan ahead and to learn that there are negative consequences to his behaviour;
3.the possibility that Mr Pindan has a psychotic illness; and
4.that Mr Pindan has marked social alienation such that Mr Pindan could not immediately return to his community in the Kimberley.
Dr Febbo concluded that Mr Pindan would be at high risk of committing a further serious sexual offence if he is not subject to a continuing detention or supervision order. He is also of the view that it is extremely unlikely that there will be any further reduction of risk with continued detention and that in Mr Pindan's case what takes place following release, in particular, his placement and the level of monitoring and supervision, will have the impact on risk.
In addition to the matters I have referred to in my previous reasons, Dr Wynn Owen is of the opinion that Mr Pindan's score on the Static‑99 places him in the high risk category and that sexual offenders in this category have a four in 10 likelihood of re‑offending sexually over five years. In scoring Mr Pindan on the Static‑99, there was one question in respect of which Dr Wynn Owen did not know the answer. He noted that Mr Pindan's Risk Category result was not dependent on the answer to this question.
Whilst Dr Wynn Owen did not detail every finding under the RSVP, he noted that Mr Pindan's history demonstrated grandiosity, some diversity of sexual violence and offending involving physical coercion. He also noted that in the past Mr Pindan has denied his offending. He said that Mr Pindan has cognitive deficits which are associated with impulsivity and poor judgment, and that these represent a re‑offending risk. The underlying cognitive problems are exacerbated by alcohol and cannabis use which further diminish Mr Pindan's ability to control his impulses. These cognitive and substance abuse problems present a significant barrier to rehabilitation and reduction of re‑offending risk. Mr Pindan also has serious problems forming and maintaining intimate and social relationships. These problems are risk factors for re‑offending. In respect of manageability, Mr Pindan has been characterised as being unable to manage even simple day to day tasks and he is not able to plan even a short way ahead. In addition, he has an extremely poor record of cooperation with supervision. These factors indicate that Mr Pindan presents a significant management challenge if he is to avoid re‑offending in the community.
Dr Wynn Owen's opinion is that not only does Mr Pindan present a high risk of re‑offending without supervision, but also his capacity to engage in any rehabilitation programme is severely comprised by his cognitive state.

Other medical, psychiatric, psychological, or other assessment relating to Mr Pindan

In my previous reasons I gave details of various other assessments that have been carried out in respect of Mr Pindan. In particular, I note that a clinical psychologist, Mr Evans, assessed Mr Pindan's intellectual functioning in June 2011. Acknowledging the difficulties in establishing a rapport with Mr Pindan and in interpreting the results of the psychological assessment in light of Mr Pindan's ethnic and cultural background, Mr Pindan's scores indicated a severely impaired level of performance and a global impairment to intellectual functioning.
I also note the assessment conducted by Dr Davidson, which is also referred to in detail in my previous reasons. Relevantly, Dr Davidson is of the opinion that Mr Pindan's level of cognitive impairment is unlikely to abate as it is a chronic problem most likely due to irreversible brain dysfunction. She noted that treatment of his possible psychotic symptoms had not led to any improvement in his cognitive functioning and that there is concern that his level of cognitive functioning may be gradually declining. Dr Davidson is of the opinion that although Mr Pindan knows that he has been sent to prison for having sex with a woman, she doubts that he would understand or be able to comply with complex conditions should they be part of his release into the community.
A psychologist, Sarah Ballantyne, prepared a report on Mr Pindan's sex offender treatment options in a custodial setting, under a detention order and under a supervision order. Ms Ballantyne noted that file information indicated that Mr Pindan has not participated in any intervention or programmes during his current or prior terms of imprisonment. She said that it is clear from documented information that Mr Pindan will never be included in the typical programmes available for high risk sexual offenders. Similarly, Mr Pindan is unlikely to receive direct psychological services from the dangerous sexual offender psychological team either in prison or the community. Ms Ballantyne reported that in the event that Mr Pindan was made subject to an order under the Act, the focus would be upon risk management.

Whether or not Mr Pindan has a propensity to commit serious sexual offences in the future

Mr Pindan's past criminal history clearly proves that in the past he has had a propensity, in the sense of an inclination or tendency, to commit serious sexual offences. To the extent that the past can be a predicator of the future, the past would indicate that he has a propensity to commit serious sexual offences in the future. There has been no improvement in his cognitive functioning and no evidence of rehabilitation which justify me in coming to any other view. There may well be a time in the future when Mr Pindan's level of functioning has deteriorated to such an extent that it could be said that he no longer has such a propensity but there is no evidence before me to justify me forming that opinion at this stage of his life.

Whether or not there is any pattern of offending behaviour on the part of Mr Pindan

Consistent with the views of Dr Febbo and Dr Wynn Owen, Mr Pindan's pattern of offending is that he becomes intoxicated and seeks a vulnerable female victim (of any age) whom he will attempt to coerce into sexual intercourse. This is likely to involve significant physical force in order to effect his aim of completing sexual intercourse. If the victim is vulnerable, as in the case of a young child, Mr Pindan's offending may result in significant physical as well as psychological harm.

Efforts by Mr Pindan to address the causes of his offending behaviour; including whether Mr Pindan has participated in any rehabilitation programmes

Mr Pindan has not participated in any treatment programmes for his substance abuse problems or his sexual offending. He has been assessed as being unsuitable for sex offender treatment programmes and he has also indicated that he does not wish to participate in such programmes.
He has indicated that he does not intend to reduce his consumption of alcohol.
I do not find that Mr Pindan is deliberately recalcitrant because he has not made efforts to address the causes of his offending behaviour. Clearly his lack of participation in such programmes is due to his cognitive impairment and not through any informed and deliberate decision not to participate in such programmes. Of course, this is not to say that his inability to participate in such programmes is irrelevant to my findings in this case.

Whether or not Mr Pindan's participation in any rehabilitation programme has had a positive effect on him

This criteria is irrelevant as Mr Pindan has not participated in any such programme.

Mr Pindan's antecedents and criminal record

Mr Pindan's antecedents and criminal record were detailed by me in my previous reasons.
Mr Pindan was first convicted of an offence involving indecency when he was 21 years of age. Based on the evidence, I assume that he had better cognitive function then than he has now. There was no suggestion at that time that he was not fit to plead, for instance. Mr Pindan committed his first serious sexual offence when he was 22 years of age and whilst he was on parole for the earlier offence. Mr Pindan has on four separate occasions up until his incarceration in 2007, committed serious sexual offences. On each occasion he has been quickly apprehended and spent considerable time in custody. Thus, these four assaults have been committed during the relatively short periods of time he has been in the community. On at least three of these occasions, Mr Pindan has been on a form of community based order when he committed the relevant serious sexual offence.

In addition to serious sexual offending, Mr Pindan has been convicted as an adult of at least 50 offences ranging from street drinking to assault and burglary. He has eight convictions of breaching bail and nine convictions of breaching a misconduct restraining order.
Mr Pindan has had limited contact with his family as an adult. This is due to the fact that his family live in Broome and Looma, a remote community. He has chosen to live mainly in Broome, where he has had access to alcohol. Of course, it is also due to the fact that Mr Pindan has spent very lengthy periods in custody in Perth. His extended family in Looma are interested in Mr Pindan's welfare and assisting him if possible. However, for the reasons outlined in the second half of these reasons, they have limited resources to offer to him.

The risk that if Mr Pindan were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence

In assessing the risk of Mr Pindan committing a serious sexual offence if he were not subject to an order under the Act s 17(1), I take into account that Mr Pindan is not able to tell the psychiatrists who have examined him or me whether there has been any change in his thinking or person that would reduce the risk of his committing a serious sexual offence. However, as against this, I take into account the psychiatrists' views that they are still able to provide the court with a risk assessment despite Mr Pindan's level of cognitive impairment. I also take into account that in the light of that cognitive impairment, it seems unlikely that Mr Pindan has reached any level of insight into the causes of his offending and the need for him to change his behaviour in order to avoid offending. There is also nothing before me to indicate that he has developed any personal strategies to avoid offending in the future.
Mr Pindan's counsel submits that in assessing this risk, I should take into account that if Mr Pindan was released into the community the government of Western Australia would probably put in place a supervision and housing regime to reduce Mr Pindan's risk of re‑offending and to protect the community. As proof of the likelihood of this occurring she points to the plan that was formulated by government agencies when I was considering staying the DPP's application. For details of this plan see the section of these reasons under the heading 'The contingency plan'.
I do take this matter into account but I do not find it to be of significant weight. I do not believe that Mr Pindan would voluntarily cooperate with any arrangements for his housing or supervision in the community if there were no sanctions for his non‑compliance. This is evidence by his behaviour in the past and his numerous failures to comply with community based orders.
Given the evidence, in particular, the opinions of Dr Febbo and Dr Wynn Owen, Mr Pindan's antecedents, his criminal record and his level of cognitive impairment, I am of the view that there is a significant risk that if he were not subject to a continuing detention order or supervision order, he would commit a serious sexual offence.

The need to protect members of the community from that risk

Mr Pindan's previous sexual offending has been relatively indiscriminate. That is, his victims have ranged from a young girl to an elderly woman. He has broken into a house to commit an offence and he has taken other victims off the street. Mr Pindan is a relatively large man and at his age it is likely that he would be considerably stronger than any of his potential victims. His offending against the young victim resulted in serious physical injuries to her. As the psychiatrists have noted, there is little if any programmes that Mr Pindan could participate in that would reduce his risk of re‑offending. Thus, there is a need to protect members of the community from the risk that he poses.

Any other relevant matter

One of the matters which I must take into account in determining whether there is an unacceptable risk that Mr Pindan will commit a serious sexual offence is the consequences of making such a finding. If such a finding is made it follows that Mr Pindan is a serious danger to the community and that a supervision or continuing detention order must be made in respect of him. Given what I have already said about Mr Pindan's cognitive impairment, the consequences for him of a finding that he is a serious danger to the community is particularly significant for him. This is because there is little if anything he can do to reduce his risk of re‑offending.
Further, if a finding is made that there is an unacceptable risk that if he were not subject to a continuing detention order or a supervision order he would commit a serious sexual offence, unless the authorities can and are prepared to commit the resources to providing supervision for him in the community, it is highly likely that he will remain in detention, without having committed an unpunished offence. He risks remaining in detention even though, because he is unfit to plead and unlikely ever to become fit to plead, if he was released into the community he would be unlikely ever to be convicted in the future of a serious sexual offence.
Thus, a finding by me that he is a serious danger to the community will result in a cognitively impaired man who is unfit to plead and unable to understand why he is being kept in custody beyond the end of his sentence and being indefinitely incarcerated without any likelihood of release unless the authorities are prepared to expend considerable resources on his supervision in the community or until he is so cognitively impaired or has reached a level of senility that the risk of him committing a serious sexual offence has diminished to an acceptable level. These are grave consequences that have considerable weight in my decision‑making process.

Conclusion

As Buss JA said in Italiano [46], I must balance all the matters I have just referred to. This is not an easy decision to make. On the one hand, it is undoubtedly true that Mr Pindan presents a very high risk of committing further serious sexual offences if he is not subject to a continuing detention order or a supervision order. On the other hand, there is a serious question as to whether that risk is unacceptable given Mr Pindan's level of cognitive impairment and the fact that he is unfit to plead to any such charge.
However, taking into account the high risk of him re‑offending and re‑offending in a way which will result in considerable harm to the likely victim, I find that there is an unacceptable risk that Mr Pindan would commit a serious sexual offence if he were not subject to a continuing detention order or a supervision order. Thus, I find that he is a serious danger to the community.

Continuing detention order or supervision order?

Having found that Mr Pindan is a serious danger to the community I must either order that he be detained in custody for an indefinite term for control, care or treatment (a continuing detention order) or order that at all times during the period stated in the order when Mr Pindan is not in custody he be subject to conditions that I consider appropriate and state in the order (a supervision order). In deciding whether to make a continuing detention order or a supervision order the paramount consideration is the need to ensure adequate protection of the community: the Act s 17(1) and s 17(2). The Act does not give further guidance as to when it is appropriate to make a supervision order instead of a continuing detention order. I am of the opinion that a continuing detention order ought to be made unless I am satisfied that a supervision order would adequately protect the community. When considering whether a supervision order would adequately protect the community, I must take into account any conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of Mr Pindan, the care of Mr Pindan and the treatment of Mr Pindan: the Act s 18(2).
The DPP submits that the community would not be adequately protected by a supervision order and I ought to make a continuing detention order.
Mr Pindan's counsel submits that prior to the delivery of my previous decision, government authorities had prepared a plan for Mr Pindan's supervision in the community should I have stayed the DPP's application (the contingency plan). She submits that if I made a supervision order which contained the elements of the contingency plan the community would be adequately protected. I also heard evidence concerning a proposal that Mr Pindan live with his relatives in Looma under a supervision order. In order to determine whether I should make a continuing detention order or a supervision order I need to consider the details of both of these options and whether any other conditions could be placed on a supervision order as to ensure adequate protection of the community.

The contingency plan

When I was considering Mr Pindan's application to stay the DPP's application, a number of government agencies were highly concerned that Mr Pindan may be released from custody without the necessary supports to maintain community safety. In response, representatives of the Disability Services Commission, the Mental Health Commission, the State Forensic Mental Health Service, the Office of the Public Advocate, the Western Australian Police, the Department of Housing and the Department of Corrective Services (the Department) met to plan for the potential for Mr Pindan to be released into the community without any restriction on his liberties.
Outcare (a non‑government welfare organisation for released offenders) was approached to develop a care plan that could provide 24 hour a day support and monitoring of Mr Pindan in the community. The contingency plan that was developed was estimated to cost approximately $1.17 million per annum. As no agency had the capacity to fund the contingency plan, discussions commenced with the Department of Treasury with a view to securing funding for the plan. Another difficulty in implementing the plan was that no agency had the capacity or legislative mandate to restrain or compel Mr Pindan to comply with the contingency plan.
Following advice from Treasury, a Cabinet submission was completed seeking approval for funds to implement the contingency plan. No final decision was made in relation to it as a consequence of my decision to dismiss the application to stay the DPP's application.
The contingency plan was to provide two staff 24 hours a day, seven days a week, to supervise Mr Pindan and to provide a house that would be provided by the Department of Housing in a Perth suburb for him to live.
The representatives of the government agencies had concerns that the contingency plan did not meet all of Mr Pindan's needs. Mr Pindan has always expressed a desire to return to the Kimberley and it was doubted whether he would comply with the contingency plan. Outcare had advised that it was not in a position to provide an intensive level of supervision in a regional location.
Since my earlier decision, no further work has been done on the contingency plan. Mr Stephen Robins, the Acting Deputy Commissioner for Offender Management and Professional Development in the Department of Corrective Services, gave evidence that the Department did not have the funds or assets, and neither did it see its role as providing the funds or assets, to provide housing and 24 hour care to Mr Pindan in anything other than a custodial setting. He acknowledged that if the Department was directed to do so by this court then it would attempt to put together a plan for housing and supervision to be provided by other government and/or non‑government agencies. He said that if the Department was required to find approximately $1.17 million per year to fund something like the contingency plan, the money would have to be taken from another area of the Department's budget and the services in that area would be reduced. Mr Robins gave evidence that the only services which the Department was funded to provide to dangerous sexual offenders, apart from maintaining them whilst they were in a prison, was for Community Corrections Officers to supervise them if they were on a supervision order and for psychologists to examine and provide counselling for them.
Dr Wynn Owen gave evidence that in his opinion the contingency plan would have set Mr Pindan up to fail. That is, the contingency plan lacked the disability support elements that Mr Pindan needed and it lacked any element that addressed his quality of life. He said it was more about Mr Pindan's containment.
In respect of the proposed suburban location of Mr Pindan's housing, Dr Wynn Owen noted that Mr Pindan has always expressed a desire to return to the Kimberley. Dr Wynn Owen is concerned that the proposed housing would mean a sudden transition from Mr Pindan being in a familiar environment to a completely unfamiliar environment where he had two people by his side most of the day. Dr Wynn Owen is of the opinion that that would be very disorientating to someone like Mr Pindan with his gross cognitive deficits. Dr Wynn Owen believes that Mr Pindan requires a step‑by‑step transition from his imprisonment to a non‑custodial setting. He is of the opinion that Mr Pindan needs to know the people who are supervising him, feel comfortable with them, be familiar with their faces and to know that his environment is safe. He says that it could take some time to transition Mr Pindan from his current custodial environment to a non‑custodial environment in which he was likely to manage.
Dr Wynn Owen said that moving Mr Pindan suddenly to a private home with 24 hour supervision could potentially be traumatic for Mr Pindan. He said that it could lead to him reacting and responding, as he had responded before, with anti‑social behaviours. Dr Wynn Owen was concerned that that may lead to an early breach of a supervision order, whereas more preparation would give Mr Pindan more opportunity to eventually succeed in a community setting.
In respect to having two permanent guards, Mr Wynn Owen thought that initially when Mr Pindan did not know his guards he would find their constraint at a directly interpersonal level difficult to manage. Dr Wynn Owen thought that he would react against it with a degree of frustration and anger, although he may adjust to it over time. Dr Wynn Owen is of the opinion that it would be better for Mr Pindan to move through a number of increasingly less restrictive opportunities, such as self‑care at a lower security prison, rather than sudden release to community based care.
Dr Wynn Owen is also concerned that there was nothing in the contingency plan which would have assisted Mr Pindan to develop basic interpersonal skills. For example, there was nothing in the plan about providing a social trainer to Mr Pindan.
Once Mr Pindan had achieved a lower level of structured care within the prison system, he should be familiarised with any potential accommodation by travelling to that accommodation for some period of time so he would be comfortable with that place prior to him being released into it. He said that in order to determine what Mr Pindan's needs would be in the community greater study needs to be made of him. For example, his sleeping habits need to be studied so that it can be determined whether there is a need for two people to supervise him during the evening.
This is not to say that Dr Wynn Owen believes that prison is an appropriate place for Mr Pindan to live. The doctor noted that if Mr Pindan was non‑compliant with orders given to him in the prison his non‑compliance was not necessarily viewed in the context of his cognitive impairment. He may well be punished for something that was out of his control. He said that this was detrimental to Mr Pindan's mental health and his quality of life.
Dr Wynn Owen also noted that because of Mr Pindan's low level of understanding of the Act, he has a higher level of frustration than other respondents as to why he is still being detained when he has finished his sentence. Dr Wynn Owen said that this may make him react in a slightly more aroused or agitated way when requested to do things within the prison.
Dr Wynn Owen said that it is desirable that Mr Pindan be reintegrated into his community, that being in the Kimberley. He said that he thought that there is a minimum requirement of 24 hour a day support because of concern that overnight Mr Pindan may wake and wander. During the day he will need support to ensure that his health was not adversely affected by his demonstrated inability to manage his day‑to‑day hygiene requirements. Somebody needs to ensure that he is eating and drinking. He said that supervision is also required to ensure that Mr Pindan does not come into contact with those to whom he may present a risk or to substances which might increase his risk of re‑offending.
Dr Wynn Owen said that he understood that Mr Pindan's family had expressed an interest in maintaining contact with him. He thought that that was a very important starting point and that such contact would assist Mr Pindan to develop a sense of wellbeing and belonging to a community. He said that video link contact between Mr Pindan and his family is less than ideal but it is better than nothing.
When Dr Wynn Owen completed his report of August 2011 he recommended 24 hour residential supervision in a culturally appropriate place of residence. However, no government representative had contacted him for any input into such a proposed plan. He said that he would be prepared to contribute to the development of such a plan.
In summary, Dr Wynn Owen does not believe that the contingency plan would have worked. He believes that it missed some important elements and that it could have been very stressful to Mr Pindan such that his reaction could cause him to re‑offend and for people to give up on him. Dr Wynn Owen agreed that it was up to the Department, whilst Mr Pindan was in custody, to take the steps to assist Mr Pindan to reintegrate into the community. That is because Mr Pindan does not have the personal resources to enable him to rehabilitate himself or to plan for his future.
I asked Dr Wynn Owen about the possibility of anti‑libidinal treatment for Mr Pindan. Dr Wynn Owen said that anti‑libidinal treatment was successful with offenders who had deviant sexual arousal and a high libido. Dr Wynn Owen does not believe that Mr Pindan meets these two criteria. Also, it would be very difficult to monitor anti‑libidinal treatment in a person with cognitive impairment and that it would be unsafe physically for Mr Pindan.
Dr Febbo identified the advantages of the contingency plan as being that Mr Pindan would have had someone with him 24 hours a day providing constant supervision and it would have given Mr Pindan the ability to go into the community.
Dr Febbo agreed with Dr Wynn Owen that it would be appropriate for there to be a transition period so that Mr Pindan did not have to go suddenly from living in a totally controlled prison environment to living in a house in the suburbs with strangers. Dr Febbo spoke about the anger and resentment which Mr Pindan was probably feeling about still being in prison and that if released from prison he would find it difficult to understand that he still had controls on him and that he could not go and do what he liked when he liked. For example, Dr Febbo is the view that it is important that Mr Pindan abstains from alcohol or substance abuse. Dr Febbo is concerned that Mr Pindan would have difficulty in understanding the power of those who supervise him in the community to prevent him from consuming such substances. Dr Febbo also noted that the contingency plan did not provide for contact with Mr Pindan's family.

In summary, Dr Febbo was of the same opinion as Dr Wynn Owen about the limitations of the contingency plan. Similarly, Dr Febbo is of the same view as to the inappropriateness of Mr Pindan's current incarceration as it only achieves the aim of containing him and does nothing to assist his reintegration into the community.
Dr Febbo is also of the view that anti‑libidinal medication would be of questionable benefit to Mr Pindan. Dr Febbo particularly noted the difficulty with obtaining informed consent for such treatment.

The Looma plan

Ms Jaime Parriman, a senior community corrections officer, has written reports about Mr Pindan and gave evidence in support of them. Ms Parriman is based in Broome and she was tasked with the job of preparing community supervision assessments for Mr Pindan should he be able to be released on a supervision order in the Kimberleys. Ms Parriman is familiar with Broome and other places where Mr Pindan may choose to live. She has personal contacts and knowledge which made her an ideal person to contact Mr Pindan's extended family to assess their preparedness to have Mr Pindan live with them or in their community. It was notable that Ms Parriman was asked to find out what Mr Pindan's extended family was prepared to do by way of providing accommodation and support to Mr Pindan. She was not asked by the Department to offer Mr Pindan's family any particular support or resources to do that.
Ms Parriman met with members of Mr Pindan's extended family and explained to them Mr Pindan's situation should he be declared a dangerous sexual offender. Members of his family who were present said that they would like to offer Mr Pindan the level of support required to have him live in the Kimberleys, in particular Looma where some of them live. However, they did not feel they were in a position to make such a commitment and decision without knowing further information about Mr Pindan's health and without being able to re‑establish a relationship with him prior to release.
One of Mr Pindan's uncles, Mr Billy Wright, told Ms Parriman that Mr Pindan's extended family thought that Mr Pindan would benefit from living in Looma upon his release as it has a strong family network that could provide support to him and more protective factors. He is also of the belief that there will be less chance of Mr Pindan engaging in negative behaviours, such as alcohol use and fighting, in Looma than in Broome or other Kimberley communities. However, he advised that before the family could make a decision about having Mr Pindan live in Looma, the family members would like to meet with community corrections, health professionals and, if appropriate, the Office of the Public Advocate.
A further meeting was held in April 2012 in an attempt to answer the family's question. During that meeting a doctor explained Mr Pindan's mental health status and what the Department might expect from the family if Mr Pindan was to be released on a supervision order. After the meeting, members of Mr Pindan's extended family stated that they understood the discussion and they were now in a position to return to Looma to speak with the remainder of the family and to make a decision as a family as to whether they could agree with the Department's request to provide accommodation and care if Mr Pindan were to be released under a supervision order. As of the last hearing of this matter in late May, the family had not made a decision about that issue.
As early as February 2011 Ms Parriman recommended that should Mr Pindan not be immediately released and a continuing detention order made, a more graduated reintegration process could be facilitated by the Department. However nothing has been done to progress that idea. In her evidence Ms Parriman said that when she wrote that report she was referring to exploring Mr Pindan being transferred to the new West Kimberley prison or Broome prison and facilitating family visits and, may be, weekend visits to Looma.
Ms Parriman gave evidence about the Looma community and Mr Pindan's extended family.
Looma is a dry community comprising approximately 150 people, including many children. There is a multifunctional police centre in Looma and two police officers are based there. Looma has a health clinic although Ms Parriman does not believe that it is manned everyday. Looma is approximately 210 km from Broome. It is inaccessible during the wet season. During that period, many residents travel into Broome and others participate in law business. Ms Parriman said that if an offender is being supervised in Looma they usually ask for permission to go and live in Derby during the wet season. Ms Parriman said that it is a very well‑run community and the elders are quite strict on the younger generation.
Whilst Looma has a lot of positive aspects to it which would assist Mr Pindan to reintegrate into his old community and with his family, it does have problems related to its remoteness and lack of support services.
The other difficulty is that Mr Pindan's extended family who live in Looma and who have expressed an interest in supporting him are aging. There is an issue as to whether they would be capable of exercising appropriate control over him, despite their best efforts.
Ms Parriman understands that both of Mr Pindan's parents are deceased. However, his mother has five sisters who Ms Parriman estimates are between the ages of 55 and 65. They have shown an interest in supporting Mr Pindan. Mr Wright, who I previously mentioned, is married to one of the sisters and Ms Parriman estimates that he is 60 to 65 years of age. Mr Wright and his wife Ms Patsy Pindan live in Broome while she undertakes dialysis. Another one of the sisters also lives in Broome, although Ms Parriman understands that she travels frequently between Broome and Looma. Mr Pindan's mother also has a brother who is married and he and his wife live in Looma. Ms Parriman estimates them to be in their late 40s or early 50s. Finally, there is a woman who may be Mr Pindan's half sister, who Ms Parriman estimates to be in her early 20s or mid‑20s. Ms Parriman says that she could be Mr Pindan's sister in the Aboriginal way so that she could in fact be his first cousin. That young woman lives in Looma. Ms Parriman was not aware as to whether she has a partner but she has children.

Conclusion as to a continuing detention order or a supervision order

I am unable to find that the community would be adequately protected by a supervision order which incorporated the elements of the contingency plan that the government agencies were formulating prior to my earlier decision. Obviously, there is the problem about whether any such plan, were it to be made the conditions of a supervision order, would be adequately funded. Mr Pindan's counsel submitted that I should assume that if I make a supervision order the government will perform its function of protecting the community by providing appropriate assets and resources to fund it. I agree that to some extent the conditions of any supervision order are imposed on an assumption that the government will make resources available to ensure that the relevant dangerous sexual offender can be supervised in accordance with the terms of the order. However, in this particular case, there is an enormous gap between the resources necessary to provide the housing and supervision which were elements of the contingency plan and any commitment that government agencies have made to date in respect of Mr Pindan. For example, I was told that it is not known whether there is accommodation available for Mr Pindan in the community and there are no people organised to provide the 24 hour a day supervision for him in the community which would be necessary as conditions of a supervision order based on the contingency plan.
Even assuming that I could rely on those resources to be provided, for the reasons expressed by Dr Wynn Owen and by Dr Febbo, I am not satisfied that a supervision order based on the contingency plan would adequately protect the community at this time. Mr Pindan has not in any way been prepared for such a supervision order. He probably would not have any understanding of why he would have to comply with such a supervision order and he would be likely to struggle against it. In such a situation the safety of Mr Pindan and others would likely to be endangered. I agree with the psychiatrists that before Mr Pindan can be released into the community on such an order, there needs to be a reintegration programme to prepare him and to educate those who would be responsible for his supervision.
It is very disappointing that despite Mr Pindan having finished his sentence and these proceedings having been on foot for some time, so little has been done by the Department and other government agencies to prepare Mr Pindan for his release into the community. I cannot help but conclude that the Department has taken a very narrow view of its responsibilities. That is, unless and until a continuing detention order is made under the Act and this court places some onus on the Department to prepare Mr Pindan for eventual release into the community, the Department will not expend significant resources to prepare a plan for that eventuality.
In respect of the proposal that Mr Pindan be released on a supervision order either in Broome or Looma, it is clear that his family are not yet in a position to provide assistance to him. Before Mr Pindan could be released on a supervision order into their care, they too would need to be educated and prepared. Mr Pindan would also need to undergo a reintegration programme so that he was not set up to fail upon his release.
Ms Barone submitted that I could adjourn this application and call for further evidence to be obtained regarding accommodation to ensure that I have all the relevant information before determining the application. I do have the power to adjourn the application but the purpose of doing so would not be to obtain further information but to give the authorities time to change the status quo. That is, to make arrangements and put in place resources to reintegrate Mr Pindan into the community so he was ready to be released under a supervision order. I do not think that it is appropriate that I do that. This is because it is not a task that could be done in a short period. It is going to require a considerable period of time. In my opinion, I should determine this application on the basis of the position as it currently exists. I am satisfied that in addition to my finding that Mr Pindan is a serious danger to the community I should order that he be detained in custody for an indefinite term for control, care or treatment.

Future review

Under the Act Mr Pindan is required to be reviewed every 12 months by this court.
The task of the Department and other government agencies in the next 12 months is quite clear. The court expects them to develop a reintegration plan for Mr Pindan and source accommodation for him within the community. It is abhorrent and shocking to right‑minded people for the government to do nothing and allow Mr Pindan, who is severely cognitively impaired and who is unlikely ever to be convicted of a criminal offence in the future, to be kept indefinitely in a prison without any prospect of release because those who could do something to enable him to be released have not taken reasonable steps to assist him to reintegrate into the community.
Mr Pindan is a very hard case. His safe reintegration into the community so as to ensure his care and protection and the safety of the community will be difficult. That is no justification for not doing anything to try to reach that outcome. It simply means that determined efforts have to be made to try and ensure that this cognitively impaired man does not spend the rest of his days in a prison.