Director of Public Prosecutions (WA) v Pindan [No 3] - [2014] WASC 95

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- PINDAN [No 3] [2014] WASC 95

CORAM: CORBOY J

HEARD: 1 JULY, 27 SEPTEMBER & 4 DECEMBER 2013

DELIVERED : 24 MARCH 2014

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) - Annual review of continuing detention order - Whether the Dangerous Sexual Offenders Act imposes a positive obligation on the executive government to implement the preventative objects of the Act - Whether the court must assume that the executive government will provide whatever resources might be required to fulfil the conditions imposed by a supervision order - Whether the respondent remains a serious danger to the community - Whether the continuing detention order should be revoked and a supervision order made

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 4, s 7, s 17, s 33

Result:

Continuing detention order is not to be rescinded

Category: B

Representation:

Counsel:

Applicant: Mr J McGrath SC
Respondent: Mr S Vandongen SC & Ms M R Barone

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers Pty Ltd

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

Attorney-General (Qld) v Francis [2006] QCA 324; [2007] 1 Qd R 396
Attorney-General (Qld) v Lawrence [2008] QSC 230
Attorney-General (Qld) v Lawrence [2009] QCA 136; [2010] 1 Qd R 505
Attorney‑General (Qld) v Sybenga [2009] QCA 382
Director of Public Prosecutions (WA) v Alvisse [No 6] [2013] WASC 154
Director of Public Prosecutions (WA) v Comeagain [No 2] [2011] WASC 16
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Lyddieth [No 2] [2013] WASC 344
Director of Public Prosecutions (WA) v Misko [No 2] [2013] WASC 300
Director of Public Prosecutions (WA) v Pindan [2012] WASC 13
Director of Public Prosecutions (WA) v Pindan [No 2] [2012] WASC 234
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575
JSA v The State of Western Australia [2012] WASCA 25; (2012) 42 WAR 473
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51
Narkle v Director of Public Prosecutions (WA) [No 2] [2011] WASC 324
Nigro v Secretary to the Department of Justice [2013] VSCA 213
The State of Western Australia v Latimer [2006] WASC 235
TJD v The State of Western Australia [2014] WASCA 10
Winters v Attorney General (NSW) [2008] NSWCA 33
Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217
CORBOY J:

The application and the result

The respondent has a history of sexual offending (exhibit 1, item 1). He was last convicted of a serious sexual offence on 7 May 2007. He was sentenced to a term of imprisonment of 4 years, backdated to 28 February 2007.
On 12 October 2010, the applicant applied under s 8 of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) for orders pursuant to s 14 and s 17(1) of the Act (the DSO Application). The applicant contended that the respondent was a serious danger to the community.
The Aboriginal Legal Service, acting for the respondent, applied for a permanent stay of the DSO Application on the ground that the application was an abuse of process. It was submitted that the respondent suffered from a mental impairment and that, as a result, he was unable to participate in the proceedings.
[Suppressed]
[Suppressed]
The applicant opposed the respondent's application for a stay but did not dispute that the respondent was mentally impaired. Jenkins J dismissed the application. Her Honour held that a person who is found to be a serious danger to the community is subject to the provisions of the DSO Act regardless of his or her mental state or fitness to stand trial in the future: Director of Public Prosecutions (WA) v Pindan [2012] WASC 13 [138]. Her Honour subsequently found that the respondent was a serious danger to the community and that a continuing detention order should be made under s 17(1): Director of Public Prosecutions (WA) v Pindan[No 2] [2012] WASC 234.
The respondent's continuing detention is subject to an annual review: s 29 of the DSO Act. The applicant applied on 17 April 2013 for an order that the respondent's detention under the continuing detention order made by Jenkins J on 28 June 2012 be reviewed as soon as practicable after 27 June 2013 (the Review Application).
I have determined the Review Application by finding that the respondent remains a serious danger to the community and that the continuing detention order made by Jenkins J should not be rescinded.

The hearing of the Review Application and the issues to be determined

The hearing of the application

Mr Vandongen SC and Ms Barone appeared for the respondent at the hearing of the Review Application. They did so on the understanding that the respondent was incapable of providing instructions due to his mental impairment but that his legal representatives were obliged to act in his best interests. The respondent's interests in the Review Application were defined by his clearly expressed desire to be released from custody. It was apparent from the medical reports and other material before the court that the respondent understood that he had been detained in custody following completion of the term of imprisonment to which he had been sentenced in May 2007 and that he wished to be released from custody so that he could be returned to his community in the Kimberley (see, for example, the evidence of Dr Wynn Owen at ts 423).
The parties agreed that the documents and expert reports tendered in the DSO Application should be received as evidence in the Review Application. In addition, the transcript of the hearing conducted before Jenkins J on 14 May 2012 was received as an exhibit (exhibit 8). The findings and observations made by her Honour in Pindan [No 1] and Pindan [No 2] provided the context in which the Review Application was conducted by the parties.
The Review Application was initially listed for hearing on 1 July 2013. Ms Barone indicated at the hearing that the respondent might challenge the validity of the DSO Act. However, the parties agreed that evidence should be taken notwithstanding that possibility.
Dr Wynn Owen and Ms Jaime Parriman gave evidence at the initial hearing. Dr Wynn Owen is a forensic psychiatrist who had provided a report in the DSO Application pursuant to s 14(2) and s 37 of the DSO Act. An order had been made that the respondent be further examined by Dr Wynn Owen for the purpose of the Review Application.
Ms Parriman is a senior community corrections officer attached to the Department's office in Broome. She had also given evidence in the DSO Application.
The Review Application was adjourned following the evidence of Dr Wynn Owen and Ms Parriman to enable the respondent's legal representatives to further consider a possible challenge to the validity of the DSO Act. They subsequently advised that the validity of the Act was not in issue. Evidence was then taken from Ms Astrid Kalders, the Assistant Commissioner, Adult Community Corrections, Department of Corrective Services.

The observations of Jenkins J in Pindan [No 2]

Jenkins J noted in Pindan [No 2] that several government agencies had been concerned by the possibility that the respondent might be released to the community pursuant to his application for a stay of the DSO Application. A care plan had been developed that provided for continuous support and monitoring of the respondent in the community (the plan was referred to as a 'contingency' plan). There were several difficulties with the plan - for example, no provision had been made for funding except through an allocation by Treasury that required Cabinet approval and there was no power to restrain or compel the respondent to comply with the plan (see Pindan [No 2] [52] and following).
The contingency plan had not been finalised as the respondent's application for a stay of the DSO Application was dismissed. However, the plan was further considered by Jenkins J in determining whether a continuing detention order or a supervision order should be made once it was found that the respondent was a serious danger to the community. Dr Wynn Owen and another forensic psychiatrist who gave evidence in the DSO Application, Dr Febbo, had expressed concerns about the contingency plan - as to its effect on the respondent and the likelihood that it would adequately protect the community from the risk of the respondent re‑offending.
Jenkins J was also troubled by the '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' [85]. Consequently, her Honour concluded that the community would not be adequately protected by a supervision order that incorporated elements of the plan.
Her Honour also considered a proposal that the respondent be released on a supervision order that would facilitate his return to his community at Looma (a community of approximately 150 people located in the Kimberley) or which would enable him to reside in Broome. Ms Parriman had given evidence about that possibility. Her Honour found that:
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 [88].
Her Honour concluded her reasons in Pindan [No 2] with several observations about the past and future management of the respondent:
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 of Corrective Services] 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 [87].
And:
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 yet 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 [91] - [92].

A summary of the parties' submissions in the Review Application

The applicant's primary submissions

The applicant contended that the respondent remained a serious danger to the community within the meaning of s 7 of the DSO Act. He relied on the evidence that had been presented in the DSO Application, the findings made by Jenkins J in that application and on the further report of Dr Wynn Owen received in the Review Application.
The applicant also relied on the findings made by Jenkins J in the DSO Application to submit that a continuing detention order should be made as a supervision order would not adequately protect the community. It was said that the evidence received in the Review Application further supported that submission as:
(a)the community supervision assessments that had been undertaken since the DSO Application indicated that it was not presently possible to provide a plan that would 'implement adequate strategies to manage, address and reduce Mr Pindan's risk of re‑offending if he were to be released to a supervision order' (applicant's outline of final submissions, par 44);
(b)Ms Parriman's evidence indicated that it was not possible to adequately supervise the respondent if he was returned to the Looma community;
(c)Ms Parriman had concluded in a report prepared for the Review Application that, '[t]he lack of appropriately monitored and supported accommodation options, limited family support and restricted availability of resources in the community, along with Mr Pindan's risk and cognitive difficulties, continue to be significant barriers in providing a suitable release plan for Mr Pindan' (item 17, exhibit 9 at page 50);
(d)Ms Kalders' evidence demonstrated that there were, at present, difficulties in transferring the respondent to West Kimberly Regional Prison (WKRP) as an intermediate step towards his release to the community under supervision.

The respondent's submissions

It was submitted on behalf of the respondent that the question posed by s 7(1) of the DSO Act - whether there was an unacceptable risk that the respondent would commit a serious sexual offence if he was not subject to a continuing detention order or a supervision order - was not to be determined solely by reference to 'the quantum of risk present or the type of sexual offence that the person may commit' (respondent's closing submissions, par 26). In particular, consideration of 'the values accorded to liberty at common law … are intrinsic to the notion of an unacceptable risk' (par 21, citing Nigro v Secretary to the Department of Justice [2013] VSCA 213 [103]).
Accordingly, the following matters were said to be relevant to the acceptability of the risk of the respondent re‑offending:
(a)preventive detention was more onerous for the respondent than for other offenders as a result of his significant cognitive impairment;
(b)the respondent was aware that he had completed his last sentence of imprisonment but was unable to understand why he remained in custody;
(c)the respondent was unlikely to ever be convicted of, or sentenced for, a further criminal offence as a result of his cognitive impairment;
(d)the executive had abandoned the performance of obligations that it owed to the respondent;
(e)the executive had been more than reckless in its management of the respondent - it had shown a complete disregard for its obligations to him;
(f)the executive had failed by 'every measure of even coming close to taking the "reasonable steps" envisaged by Jenkins J when making the continuing detention order' (respondent's closing submissions, par 27).
It was further submitted that the respondent's continuing detention was merely punitive and was not facilitative of the preventative objects of the DSO Act. It was contended that the DSO Act imposed a positive obligation on the executive government to implement the preventative objects of the Act, reference being made to Attorney-General (Qld) v Francis [2006] QCA 324; [2007] 1 Qd R 396 and Attorney-General (Qld) v Lawrence [2008] QSC 230 (respondent's closing submissions, par 28). Continuing detention was said to be punitive as:
(a)for reasons that were beyond his control, the respondent was unable to engage in any sex offender treatment program or any other program that might address his risk of sexual re‑offending and which might be offered in a prison setting;
(b)the detention of the respondent in a prison environment (as opposed to accommodation in a specialised unit) was not therapeutically supported as, according to Dr Wynn Owen, prison was detrimental to the respondent's mental health and quality of life and was not an appropriate detention environment for him;
(c)the Department of Corrective Services had not actually committed to moving the respondent to WKRP - the Department's present intentions fell 'a long way short of "treatment or care"' (par 30).
Finally, it was submitted that the court should not take into account funding constraints in determining whether a supervision order would adequately protect the community. The court should assume that the executive will perform its function of protecting the community by the provision of appropriate assessment and resources if a supervision order was made (pars 31 ‑ 32). It was possible to devise appropriate orders for the supervision of the respondent that would adequately protect the community if funding constraints were disregarded. In particular, some form of specialised accommodation could be provided for the respondent that would facilitate a graduated and supervised return to the community.

The applicant's submissions in reply

The applicant submitted in reply that, while it was correct that s 7 of the DSO Act did not refer to the protection of the community as the paramount consideration (in contrast to s 17(2) and s 33(3)), 'it [was] artificial to suggest that the protection of the community is not necessarily a factor of great significance at this stage, bearing in mind the intention of Parliament as evidenced in the objects of the Act' (applicant's submissions in reply, par 13). Whether the risk of an offender committing a serious sexual offence in the future was unacceptable required an assessment of the risk and a consideration of the nature and gravity of the relevant offence and the magnitude of the harm that might result, having regard to the manner in which the offender had previously committed similar offences (par 16, citing Nigro [117]).
In answer to the contention that the executive had subverted the objectives of the DSO Act by failing to adequately manage the respondent, the applicant submitted that:
(a)The scope of the executive's responsibilities under the DSO Act was to be determined by reference to the objects of the Act - s 4 of the Act stated that the objects of the Act included providing for the 'continuing control, care, or treatment, of persons of a particular class'. The word 'or' when used in s 4(b) was to be interpreted and applied disjunctively so that an order may be made under s 33 of the Act solely for the control of an offender: see Francis [28] ‑ [30].
(b)An order that was made for the control of an offender was not punitive 'but rather a necessary aspect of both continuing detention orders and supervision orders, by which the person the subject of the order may be lawfully detained and directed in order to safeguard the community from an unacceptable risk of further serious sexual offending by that offender' (par 25).
(c)The respondent's submissions were inconsistent with the reasoning of the High Court in Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575. The submissions were also inconsistent with the interpretation of s 17(1) of the DSO Act adopted in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 to the extent that it was suggested that the court could decline to make an order under s 33(2) of the Act even if it found that the respondent remained a serious danger to the community.
(d)The executive had not abandoned its obligations to the respondent. A plan had been developed that involved 'a lengthy and challenging process of socialisation and familiarisation within a new environment, which is realistic and has been formulated with careful attention to the practicalities of managing [the respondent] in a way so as to ensure his level of risk is adequately managed, both for his own benefit and that of the community' (par 44).

Finally, the applicant submitted that the proposition that the court could ignore funding constraints in determining whether a supervision order should be made was inconsistent with authority: Jenkins J in Pindan [No 2] [85] and McKechnie J in Narkle v Director of Public Prosecutions (WA) [No 2] [2011] WASC 324 [30] ‑ [31]. It was said that the allocation of resources by the State must be assessed in light of what is reasonable and practicable and that:
The extensive resources required to manage housing and supervision of the Respondent within the community are, as yet, not practicably or reasonably achievable. Nor will forcing the issue be of benefit to the Respondent himself, given the high likelihood that his return to the community, whether under a supervision plan similar to the contingency plan, or to country, would not adequately protect the community and he would, in effect, be set up to fail, in the sense of either breaching the conditions of a supervision order, or more concerningly, commit a further serious sexual offence (applicant's submissions in reply, par 48).

The issues to be considered

Section 33 of the DSO Act provides that:
(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.
Accordingly, the ultimate issues to be determined in the Review Application were whether the respondent remained a serious danger to the community and if so, whether the detention order made by Jenkins J should be continued or whether an order should be made under s 33(2)(b). The parties' submissions raised the following questions in relation to those issues:
(a)what factors were to be taken into account in assessing whether the risk of an offender committing a serious sexual offence in the future was unacceptable;
(b)whether the executive owed an obligation in relation to the management of an offender who is detained under a continuing detention and if so, the nature and content of that obligation;
(c)whether the executive had failed to discharge any obligation that it owed to the respondent and if so, what, if any, were the consequences of that failure;
(d)whether the court was required to disregard cost or other resource constraints on supervising an offender when determining whether to substitute a supervision order for a continuing detention order or whether the court was bound to consider what is reasonable and practicable.

Section 7 of the DSO Act - 'unacceptable risk'

Section 7(1) of the DSO Act provides that the court must be satisfied that there is an unacceptable risk that a person will commit a serious sexual offence if a continuing detention order or a supervision order is not made before it can be found that the person is a serious danger to the community. The expression 'serious sexual offence' has the meaning given by s 106A of the Evidence Act 1906 (WA) (see s 3 of the DSO Act).
Section 7(2) of the DSO Act provides that the applicant has the onus of satisfying the court about the matters stated in s 7(1) and the court has to be satisfied by acceptable and cogent evidence and to a high degree of probability. The expression 'high degree of probability' is incapable of further definition. However, the expression 'import[s] more than a finding on the balance of probabilities but less than a finding of proof beyond reasonable doubt': GTR [28] (Steytler P & Buss JA); see also, TJD v The State of Western Australia [2014] WASCA 10 [53] (McLure P) and JSA v The State of Western Australia [2012] WASCA 25; (2012) 42 WAR 473 [56] ‑ [57] (Buss JA). Further, '[t]he court must … identify what it is (if anything) that constitutes the risk and makes the risk unacceptable, and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence': GTR [34].
The court must have regard to each of the matters specified in s 7(3) of the DSO Act in deciding whether a person is a serious danger to the community. It will 'necessarily and automatically' follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that the person would commit a serious sexual offence if a continuing detention order or a supervision order was not made: GTR [21] (Steytler P & Buss JA); [94] and [125] (Murray AJA).
The term 'unacceptable risk' is not defined in the DSO Act. Wheeler JA observed in Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 that
'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention [63].
Steytler P and Buss JA expressly agreed with that interpretation in GTR [26] and in Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217 [85]. Their Honours added in GTR that:
The word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard, amongst other things, for 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, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). As John Fogarty points out, albeit in a rather different context (Unacceptable risk - A return to basics (2006) 20 AJFL 249, 252), the advantage of the phrase 'unacceptable risk' is that 'it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case …' [27].
The respondent's submissions also referred to observations made by the Victorian Court of Appeal in Nigro about the concept of unacceptable risk. The Court of Appeal emphasised that 'the common law presumption in favour of the liberty of the subject underpins the nature of the predictive inquiry required' under the equivalent of s 7 of the DSO Act (s 9 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic)) [67]. Accordingly, 'the right to liberty and autonomy explains why the concept of "unacceptable risk" should be interpreted so as to limit the enjoyment of that right only to the extent that is reasonably necessary to give effect to its legislative purpose' [68] and the assessment of the risk of an offender committing a serious sexual offence is 'an evaluative task requiring an assessment of the degree of risk and the gravity of the harm that may eventuate and whether the imposition of restrictions upon the offender's freedom is necessary to advance the purpose of the Act' [75]. Further:
The threshold test in s 9(1) provides for the manner in which the court may strike a balance between protection of the community and the restriction of the offender's human rights. Although the impact on the offender of the making of an order is excluded from the test, the conceptual value of individual liberty and other human rights remain to be weighed in the balance. Though the test of unacceptable risk involves no prediction of the impact of an order on the particular individual, it necessarily involves consideration of the value which is placed on liberty and other human rights [103].
The Victorian Court of Appeal made those observations in the course of considering how s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) affected the interpretation of s 9 of the Serious Sex Offenders (Detention and Supervision) Act (the equivalent to s 7(1) of the DSO Act) and, in particular, the meaning to be given to the expression 'unacceptable risk'. The applicant noted the relevance of the Charter to the issues considered in Nigro. However, the Court of Appeal concluded that the meaning of the expression 'unacceptable risk' was to be ascertained according to the ordinary principles of statutory interpretation and, as has been noted, common law concepts [102] (and see at [85]).
In my view, the meaning attributed to the expression 'unacceptable risk' by Wheeler JA in Williams and by Steytler P and Buss JA in GTR is consistent with the interpretation adopted by the Victorian Court of Appeal in Nigro (and see Nigro [110] and at [165] where a reference was made to GTR [27]).

The role of psychiatric evidence

The Court of Appeal considered the role played by psychiatric evidence in assessing whether a person is a serious danger to the community in Woods. Steytler P and Buss JA held that it was apparent from the scheme of the DSO Act that Parliament had accepted that a psychiatrist possessed the necessary expertise to assess the risk of an offender committing a serious sexual offence if a continuing detention order or a supervision order was not made [38]. It was not necessary for the examining psychiatrist to possess particular expertise in predicting recidivism. However:
The court hearing an application under the Act is … entitled and obliged to consider the skill and experience of the particular psychiatrists (including in relation to predicting recidivism) who have examined the person in question and prepared reports under s 37(2) of the Act. By s 7(3)(a), the court must have regard to the reports in deciding whether to find that the person is a serious danger to the community, but the court's consideration of the skill and expertise of the particular psychiatrists, and the cogency and credibility of their reports and evidence, may affect the weight to be accorded to their views [39].
See also Murray AJA [226] - [228].

Section 17(1) and s 33(2) of the DSO Act - 'may'

The majority of the Court of Appeal held in Williams that the word 'may', when used in s 17(1) of the DSO Act, did not import a discretion; the court was bound to make a continuing detention order or a supervision order once it was found that an offender was a serious danger to the community. Wheeler JA (with whom Le Miere AJA agreed) held that this followed from the meaning and effect to be given to the expression 'unacceptable risk' [66] ‑ [68].
Her Honour's interpretation of that expression has already been noted. The effect of that interpretation was further explained by her Honour in Williams:
[O]n the view that I take of the considerations to which the court must have regard in determining whether to find that a person is a serious danger to the community, the court has already, in arriving at that view, balanced all relevant considerations including the potential consequence of such a finding for the offender. If that is the correct view of the way in which the court should approach the making of such a finding, then there will be no further relevant considerations which the court can have regard to in deciding whether to make, or decline to make, an order. Rather, the only question which would remain is that of what would be the appropriate form of order. In that case, as it appears to me that there would be nothing upon which a discretion could sensibly operate, it is my view that the legislature intended that 'may' was to be understood as 'must' [68].
The Court of Appeal returned to the meaning of 'may' when used in s 17(1) in GTR. Steytler P and Buss JA affirmed the interpretation adopted by the majority in Williams, observing that, 'there is nothing in the reasoning of the majority in Williams that should lead us to conclude that it was plainly wrong, or that it should, for some reason, not be followed' [49]. That, in itself, was sufficient to accept and apply the decision. However, significantly for this application, their Honours also considered that the interpretation of 'may' as meaning 'must' was supported by the provisions of s 33 of the DSO Act:
It appears to be plain enough, from s 33, that once a court finds that a person remains a serious danger to the community it must do one of the two things mentioned in s 33(2) and that the option of rescinding the [continuing detention] order and releasing the offender is only to be adopted if the court does not find that the person remains a serious danger to the community [51].
Steytler P and Buss JA confirmed in Woods the view that they had expressed in GTR [155]. Murray AJA also considered the question in Woods. After noting that there was no basis for departing from the decision in Williams, his Honour expressed a preference for the view that 'the use of the word "may" is apt to provide a power which must be exercised upon the establishment of the precondition for the exercise of that power' [204].
In TJD, McLure P (with whom Mazza JA agreed) observed that:
Having regard to the range of offences falling within the definition of 'serious sexual offence' (which has the meaning given to that term in s 106A of the Evidence Act 1906 (WA)) and the very great variations in the seriousness of the circumstances of sexual offending, there is much to be said for the contention that the word 'may' does not mean 'must' so that the court's satisfaction that there is an unacceptable risk does not mandate a finding that a person is a serious danger to the community. However, that contention is inconsistent with unchallenged authority of this court: Director of Public Prosecutions (WA) v Williams …; Director of Public Prosecutions (WA) v GTR ... [44].
Buss JA reiterated what had been said by the Court of Appeal in Williams, GTR and Woods in his reasons in TJD. It is plain, in my view, that I am bound by those decisions to construe the word 'may' when used in s 33(2) of the DSO Act to mean 'must'.
I note for completeness the reasons of Chesterman JA on this issue in Attorney-General (Qld) v Lawrence [2009] QCA 136; [2010] 1 Qd R 505. His Honour referred to the judgments of Gleeson CJ and McHugh J in Fardon and observed that:
The trial judge thought that it was 'an open question whether the s13(5) discretion extends to making no order'. The opinions just quoted reinforce my own, formed from the terms of s 13(5), that the Court may make no order despite being satisfied that the prisoner in question poses a serious danger to the community; though it is to be expected that it will be rare indeed for a court to make no order whether the finding is made. The point does not arise in the present appeal and need not be considered further [29].
Muir JA and Margaret Wilson J expressed their agreement with the reasons given by Chesterman JA without discussing the interpretation of s 13(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) (the Queensland Act).
The interpretation of s 13(5) favoured by Chesterman JA accorded with the views expressed by Martin CJ in Williams about the proper construction of s 17(1) of the DSO Act. However, it is relevant to note that Williams, GTR and Woods were apparently not cited to the court in Lawrence [2009] and that in Williams, Martin CJ and Wheeler JA concluded that Fardon did not determine the question of whether the word 'may' conferred a discretion on the court to not make an order under s 17(1) [30] ‑ [33] (Martin CJ) and [65] (Wheeler JA).

Continuing detention and supervision orders

The paramount consideration in deciding between a continuing detention order and a supervision order is the protection of the community. That does not mean that there is a pre-disposition towards making a continuing detention order. As Hall J observed in Director of Public Prosecutions (WA) v Decke [2009] WASC 312, '[i]t cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order' [14]. The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 and Decke. That approach is consistent with the observations made by the Victorian Court of Appeal in Nigro.
Murray AJA noted in GTR that the powers conferred by the DSO Act were not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced [97].

The principles relevant to an annual review

The respondent's submissions referred to the judgment of Blaxell J in Director of Public Prosecutions (WA) v Comeagain [No 2] [2011] WASC 16 for the legal principles to be applied in conducting an annual review of a continuing detention order (and see Director of Public Prosecutions (WA) v Lyddieth [No 2] [2013] WASC 344 [20] ‑ [22] (EM Heenan J)). The principles identified by Blaxell J were substantially derived from the provisions of s 33 of the DSO Act, although his Honour also referred to two other matters: first, that the court should adopt the least restrictive alternative compatible with the protection of the community when making an order under s 33(2) and second, that the court should assume that resources will be made available to provide adequate supervision if a supervision order is made. The first of those matters was not controversial. However, as has already been noted, the second matter was in issue in this application.
Simmonds J observed in Director of Public Prosecutions (WA) v Misko [No 2] [2013] WASC 300 that:
I should note that I consider my task under DSO Act, s 33, is to determine the matters referred to in that section, by reference principally to the evidence of material facts or circumstances, if any, arising since the making of the continuing detention order, that is, while the relevant offender was on detention under the order. I also believe that I should pay particular attention to any matter that, while not so arising, has become known since then [12].
Broadly, that approach is supported by the wording of the section: 'if [the court] does not find that the person … remains a serious danger to the community' (s 33(1)) and 'if [the court] finds that the person … remains a serious danger to the community' (s 33(2)). Accordingly, the point of departure for a review is a previous finding that a person was a serious danger to the community. That is reflected in the observations made by Hall J in Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 about the object of the requirement for an annual review:
The clear intention of the annual review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community then the continuing need for detention must be considered.
It is a significant thing to deprive a person of their liberty, not for something they have done but for something they might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability: s 7(2) DSO Act. Such a finding requires satisfaction that there is an unacceptable risk that the person would commit a serious sexual offence if not placed under a supervision order or detained.
The risk of reoffending may change over time. It may be affected by age, health and the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust [14] ‑ [18].

There may, however, be an issue about whether the effect of s 33 of the DSO Act is that the court reviewing a continuing detention order is bound by the findings of the court that first determined that the offender was a serious danger to the community or of a court conducting an earlier review. Is the review court required to undertake its own, independent assessment of the risk of serious sexual offending and the unacceptability of that risk according to the matters specified in s 7(3) of the DSO Act by reference to all of the available evidence, including the material that was considered by the court that made the continuing detention order? That approach would leave open the possibility that the review court could reach a different conclusion to a court that had previously made a continuing detention order about matters such as the risk of re‑offending, the unacceptability of that risk or the protection likely to be afforded to the community by a supervision order even though there had been no material change in the matters specified in s 7(3).
Alternatively, is the task of the review court more confined; does it merely look to see if there has been a change in the factors identified by the court that found that the offender was a serious danger to the community (and note in this context the observations of Steytler P and Buss JA in GTR at [21] to which reference was earlier made) and evaluate the impact of any change on the risk of re‑offending and the acceptability of that risk? That approach would be consistent with the observations of Simmonds J in Misko and Hall J in Unwin [No 3].
The parties did not expressly address that question in their submissions. However, the applicant analysed the factors specified in s 7(3) of the DSO Act by a combination of the evidence that had been adduced in the DSO Application, the findings that had been made by Jenkins J (but with the added submission that her Honour's reasons and findings remained 'appropriate') and the evidence received in this application.
The respondent did not object to that approach. His submissions focussed on events that had occurred (or, perhaps more accurately, steps that had not been taken) since the DSO Application. However, he submitted that the risk of re‑offending was acceptable by reference, among other things, to circumstances that had substantially existed at the time of the DSO Application. Accordingly, he invited the court to reassess the acceptability of the risk of re‑offending independently of the findings made by Jenkins J and to do so by considering a combination of circumstances that had prevailed at the time of the DSO Application or which reflected an alleged failure by the executive subsequently to discharge obligations that were said to be owed to the respondent. The applicant did not object to that approach.
I do not consider that it is necessary to resolve this question to determine the Review Application. It is possible to make findings according to the approach adopted by each party. That is, in my view, the preferable course in the absence of submissions on the point.

Does the executive owe a positive obligation to 'implement the preventative objects' of DSO Act?

The issue

The question of whether the DSO Act imposes a positive obligation on the executive in relation to the management and treatment of offenders detained under the Act was said to be relevant to three propositions advanced on behalf of the respondent. Those propositions were that:
(a)the risk of the respondent committing a serious sexual offence was acceptable if an order under s 33(2) of the DSO Act was not made;
(b)the respondent's continuing detention was punitive;
(c)the court should assume that the executive will provide whatever resources are necessary to ensure that the community is adequately protected if a supervision order was made under s 33(2).
The first proposition rested on submissions that the executive had 'abandoned' obligations that it owed to the respondent; that the executive had shown a complete disregard for its obligations to him and that the executive had 'failed by every measure of even coming close to taking the "reasonable steps" envisaged by Jenkins J when making the continuing detention order' (respondent's closing submissions, par 27(f)). The second proposition rested on those submissions and a further submission that the government had 'a positive obligation to implement the preventative objects of the Act' (par 28). The third proposition rested on the submission that 'the court should assume that if [a supervision] order is made the executive will perform its function of protecting the community by provision of the appropriate assessment and resources' (par 32).
I have concluded that it is not necessary to finally determine whether the DSO Act imposes a positive obligation on the executive, owed to individual offenders, to 'implement the preventive objects of the Act'. That is because I have found that the executive had not 'abandoned' or 'repudiated' any obligation that it might owe to the respondent so that his continuing detention is protective (or preventative) rather than punitive. It is, however, necessary to say something further about the respondent's submission to fully explain the reasons why have I have found that his continuing detention is not contrary to the DSO Act.

The objects of the DSO Act and the powers expressly conferred on the court

Section 4 of the DSO Act provides that the objects of the Act are:
(a)to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community; and
(b)to provide for continuing control, care, or treatment, of persons of a particular class.
Section 18(1) of the DSO Act specifies conditions that must be included in a supervision order. Those conditions concern the supervision and control of an offender and are implemented through community corrections officers. There are other provisions in the Act that confer powers on community corrections officers for the purpose of supervising and controlling offenders: s 19A (electronic monitoring); s 19B (curfews) and s 19C (enforcement of electronic monitoring and curfew requirements).
Section 18(2) of the DSO Act provides that a supervision order may contain any other terms that the court considers appropriate to ensure that the community is adequately protected or for the rehabilitation, care or treatment of the person subject to the order. The Act makes no express provision for the means by which orders for the rehabilitation, care or treatment of an offender might be implemented.
The DSO Act does not expressly confer power on the court to make orders or give directions that are ancillary to an order authorising the continuing detention of an offender - for example, orders or directions providing for the rehabilitation of an offender by treatment while he or she is in custody.

The possible source of an obligation to act

The respondent's submission that the executive had a 'positive obligation to implement the preventative objects' of the DSO Act rested on comments made by the Queensland Court of Appeal in Francis and the subsequent decision of Fryberg J in Lawrence [2008]. The Queensland Court of Appeal observed in Francis that:
It is possible, too, that the view taken by Gummow J in Fardon v Attorney-General for Queensland supports an argument that executive government repudiation of the preventive objects of the Act in a particular case (as, for example, by the refusal of any treatment to a prisoner clearly capable of, and amenable to, rehabilitation) could lead the court to refuse to make any order at all. If it were to appear to the court that any further detention would be truly punitive in character and, thus, contrary to the intention of the legislation, there would be no basis for the court to make an order of any kind under the Act. The conditions of further restraint upon the detainee's liberty would be out of character with the intention of the legislature: that such restraint is preventive. The character of the detention authorised by the Act is, as was explained in the reasons of the High Court in Fardon v Attorney-General for Queensland, not punitive but preventive [31]. (emphasis added)
The passage in the reasons of Gummow J in Fardon to which the Queensland Court of Appeal referred in Francis concerned the effect of s 30(2) of the Queensland Act. That section provides that the court can only affirm a previous decision to make a continuing detention order if it is satisfied by acceptable, cogent evidence and to a high degree of probability that the evidence was of sufficient weight to affirm the decision. Gummow J observed that the section
may permit refusal by the court of an order for further detention, by reason of failure by the appropriate authorities to implement the earlier order. An example would be an order for treatment of the prisoner to facilitate rehabilitation, an objective of the Act (s 3(b)). It is unnecessary to decide that question here. … [113].
In Lawrence [2008], Fryberg J cited the comments of the Queensland Court of Appeal in Francis as authority for the proposition for which the respondent contended in this application: that the government had a 'positive obligation' to 'implement the preventative objects' of the Queensland Act [71]. His Honour added that an 'unreasonable' failure by the government to provide suitable facilities to enable an offender to be released on a supervision order might provide 'another example' of the circumstances in which a court could refuse to make an order under the equivalent of s 17 of the DSO Act (s 13(5) of the Queensland Act).

Two preliminary points about the comments in Francis

Two points should be immediately noted about the comments made by the Queensland Court of Appeal in Francis at [31].
First, the suggestion that there may be circumstances in which a court could refuse to make an order under s 13(5) of the Queensland Act as a result of 'executive government repudiation of the preventative objects of the Act' was only foreshadowed as a possible argument. The Court of Appeal did not further explore that possibility. The context in which the court raised the argument as a possibility was, in my view, significant.
Second, the comments necessarily contemplated that the court retained a discretion over whether to make any order on finding that an offender was a serious danger to the community. That assumption, implicitly made in Francis, is contrary to the construction of s 17 and s 33 of the DSO Act adopted by the Court of Appeal in Williams and affirmed in GTR and Woods.

Fardon

The issue in Fardon was whether the Queensland Act was valid. It was contended that the Act was invalid for reasons similar to those that had led the High Court to hold in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 that the Community Protection Act 1994 (NSW) was invalid. The Queensland Act was said to be an attempt by the Queensland Parliament to confer on the Supreme Court of Queensland a function that was incompatible with court's position under the Constitution as a potential repository of federal jurisdiction, the function being repugnant to the court's institutional integrity [1] (Gleeson CJ). That submission was determined substantially on an analysis of the provisions of the legislation, the primary conclusion being that the Act did not confer on the Supreme Court functions that were incompatible with the proper discharge of judicial responsibilities or with the exercise of judicial power [19] (Gleeson CJ).
A passage from the reasons of Gummow J in Fardon at [113] has already been cited. It is helpful to reproduce more fully what was said by his Honour:
The purpose of Pt 3 [that part of the Queensland Act that provides for an annual review of a continuing detention order] 'is to ensure that a prisoner's continued detention under a continuing detention order is subject to regular review' (s 26). The statement of purpose guides the construction of the balance of Pt 3. That which is affirmed under s 30 is the primary decision 'that the prisoner is a serious danger to the community in the absence of a division 3 order (emphasis added) (s 30(1)). The phrase 'is a serious danger' involves the use of a continuous present to require a decision that, by reason of the attainment of satisfaction by the means and to the degree specified in s 30(3), the prisoner presently is a serious danger to the community in the absence of a Div 3 order. Upon the reaching of that decision, the court may order further subjection to a continuing detention order or release subject to a supervision order …
Section 30(2) may permit refusal by the court of an order for further detention, by reason of failure by the appropriate authorities to implement the earlier order. An example would be an order for treatment of the prisoner to facilitate rehabilitation, an objective of the Act (s 3(b)). It is unnecessary to decide that question here. However, what is vital for Pt 3, and thus to the validity of the Act, is the requirement that the regular 'review' does not, with the passage of time, become no more than a periodic formality; if the exercise in which the court was involved had been permitted by the legislation to lose its requirement for deeply serious consideration upon specified criteria and to a high degree of satisfaction, then invalidity of such legislation may well result [112] ‑ [113].
Two points were made in those comments, apart from the possibility that a court might refuse to make a continuing detention order by reason of the failure of the executive to implement a previous order. First, the question to be determined on a review of a detention order was whether a person was, at the time of the review, a serious danger to the community. Second, the validity of the Act depended, at least in part, on those provisions of the Act that ensured that the court performed its functions 'independently of any instruction, advice or wish of the legislative or executive branches of government' and exercised its powers by reference to grounds that were confined to those prescribed by law and which required a 'deeply serious consideration' of specified criteria: [113] and [116]. That is, the functions conferred on the court were not an integral part of, or closely connected with, the functions of the legislative or executive [107].
Those points are, of course, entirely compatible in the application of DSO Act: the court is required to consider whether the offender remains a serious danger to the community on a considered review conducted according to ordinary judicial procedures and processes and by reference to prescribed criteria. However, the possibility that the court might refuse to make a continuing detention order (or might revoke a previous order) due to executive recalcitrance or inactivity raises a possible conflict in the application of the DSO Act. What is the court to do if the (or an) explanation for why an offender remained a serious danger to the community was the executive government's failure to provide rehabilitative treatment while the offender had been detained under the Act? That question was central to the respondent's submission in this review.
The respondent also raised related questions in a different context. What is the court to do if the risk of an offender committing a serious sexual offence was acceptable provided that certain facilities were made available as part of a supervision order but the executive had failed or refused to provide those facilities? Further, does the answer to that question depend on the reason why the facilities had not been provided? Fryberg J suggested in Lawrence [2008] that those questions were answered by recognising that the executive owed a positive obligation to 'implement the preventative objects' of the Queensland Act and that an 'unreasonable' failure to provide suitable facilities to enable an offender to be released on a supervision order might entitle the court to refuse to make any order under the Act.

The context for the comments in Francis

In Francis, a continuing detention order had been made in respect of the appellant in 2004. The appellant had accepted that the order was justified so that he could participate in a custodial program devised by three psychiatrists for the purpose of facilitating his rehabilitation. The program required the appointment of a coordinator within the Department of Corrective Services with authority to implement the program. However, a coordinator was not appointed after the continuing detention order was made.
An annual review of the detention order was conducted. The judge conducting the review expressed concern about the failure of the Department of Corrective Services to have appointed a coordinator and to have implemented the program. However, it was held that the appellant remained a serious danger to the community and the continuing detention order was affirmed.
The appellant contended on appeal that the primary judge had erred in affirming the continuing detention order 'so as to leave him worse off than he was under the [detention order] because there was no treatment plan now in place or in prospect' [20]. He emphasised the failure of the Department of Corrective Services to have implemented the program that had been devised for him. However, the Court of Appeal noted that, 'the task posed by the Act for his Honour's determination is not one which can be resolved in the appellant's favour simply by pointing to departmental ineptitude' [23]. The court continued:
There may be cases in which departmental recalcitrance, in relation to the rehabilitative treatment of a prisoner in continuing detention, will give rise to a question on subsequent review by the court as to whether the continued detention of the appellant is justified under the Act. It must always be borne in mind, in this regard, that one of the purposes of the regime of post‑sentence detention established by the Act is treatment of the prisoner [24].
The Court of Appeal referred to the Queensland Act equivalent of s 17(1)(a) of the DSO Act (s 13(5)(a)) and concluded that the phrase 'control, care or treatment' was to be read disjunctively so that a continuing detention order could be made for any one or more of three reasons (and see Lawrence [2009]). The court then observed that:
It may be, however, that, in some instances, a dangerous prisoner has such clear and pressing prospects of rehabilitation that the court's choice of an order under s 13(5)(a) [a continuing detention order], rather than under s 13(5)(b) [a supervision order] will turn on the answer to the factual question whether further treatment, necessary to ensure adequate protection to the community, is likely to be available or effective only while the prisoner remains in detention. If the court were to be satisfied in a particular case that further treatment of a prisoner was necessary, and likely, to reduce the risk of reoffending to acceptable levels, but that such treatment would not be made available to the prisoner in detention, then that would be a good reason to make an order under s 13(5)(b). The choice between an order under s 13(5)(a) or (b) must, of course, be controlled in the end by s 13(6) of the Act [which is in identical terms to s 17(2) of the DSO Act]; but, in such a case, it might make little sense to make a continuing detention order for the purpose of 'control, care or treatment' of the prisoner [30].
That passage was followed by the observations at [31] that have been reproduced above and which referred to the comments made by Gummow J in Fardon.
The arguments foreshadowed by the Queensland Court of Appeal in the passage cited above from Francis (the passage appearing at [31] of the Court of Appeal's reasons) were to the effect that the court was empowered to make detention orders under the Queensland Act for particular purposes - the control and/or care and/or treatment of an offender. Arguably, there would be no basis for continuing a detention order if the purpose for which the order had been made could not be fulfilled - the power to make the order was conditioned by the purpose for which the order could be, or had been, made. The effect of an order made in those circumstances might be to impermissibly punish the offender as no statutory purpose would be served by the offender continuing to be detained in custody.

That possibility reflected the particular circumstances in Francis. It appears that the Court of Appeal had in mind circumstances in which a continuing detention order had been made solely for the treatment of an offender and not because the offender also required a degree of control that could only be provided by further detention. The detention order might then be rescinded on review if the contemplated treatment was not, or could not, be provided as the basis for the order that had been made would no longer exist (in circumstances where a supervision order would otherwise provide the control and/or care of the offender that had been thought necessary to ensure that the community was adequately protected). Accordingly, the Court of Appeal concluded that:
In the present case, the learned primary judge did not find, and, indeed, was not asked to find, that the sole or dominant reason for continued detention or supervision was the provision of treatment to the appellant rather than the ongoing control of the appellant. Nor was it suggested that any necessary treatment could, and would, only be made available outside detention. For these reasons, we would reject the appellant's … contention [32].

Further observations about the comments in Francis

It follows that, in my view, the Court of Appeal's comments in Francis were primarily directed to the power of the Supreme Court to make detention orders under the Queensland Act rather than to the formulation of any duty that might be owed by the executive to each offender who is detained under the Act. The powers conferred on the court were for the purpose of protecting the community; they were not conferred for the purpose of further punishing an offender who had already been punished for committing an offence. Consequently, it was beyond the court's power to make a detention order if the effect of the order was to punish the offender rather than to protect the community. A detention order might have that effect through executive action or inaction. That is because it is a matter for the executive to determine the conditions on which a person is detained in custody.
Accordingly, in my view the point of the comments made by the Court of Appeal in Francis was not to suggest that, on its proper construction, the Queensland Act imposed an obligation on the executive to implement the preventative objects of the Act. Rather, the Court of Appeal was concerned with the limits on the powers conferred on the Supreme Court by the Act. In that context, the reference to 'executive government repudiation of the preventative objects of the Act' was intended to identify one circumstance in which the executive action could, in a particular case, effect the power of the court to order the continuing detention of an offender. Similarly, the reference to the court refusing to make any order under the Act was to be understood as a reference to the way in which executive action could erode the court's power to validly make orders under and for the purpose of the Act. It was not a reference to the court, in effect, seeking to enforce a positive obligation imposed on the executive. That was the point made by the Court of Appeal at [24] of its reasons, reproduced above.
There are several further matters that should be briefly noted about the Court of Appeal's comments in Francis.
First, Gummow J did not identify in Fardon the source of the power of the Supreme Court to make an order for the rehabilitation of an offender that was ancillary to an order for the offender's continuing detention. As has been noted, the DSO Act does not expressly confer such a power. At most, a court can identify in broad terms the purpose for making a detention order - control and/or care and/or treatment.
Second, Gummow J expressly left open in Fardon the question that he had posed at [113]. With respect, the Court of Appeal in Francis may have overstated the effect of his Honour's comments - it may be that his Honour only intended to raise a question that was deliberately left unanswered rather than to have expressed a 'view' that he had 'taken'.
Third, there are obvious difficulties in construing the Queensland Act and the DSO Act as imposing a positive obligation on the executive in the absence of express provisions to that effect. An obligation might be imposed by a court order but that would beg the question already noted - whether the court had power to make such an order. Plainly, a court can impose conditions as part of a supervision order that will require action by government agencies and officers; however, as has been emphasised, the court has no express power to do so under the DSO Act when it orders that an offender is to be detained in custody.
Fourth, it is again necessary to emphasise the particular context in which the Court of Appeal made its comments - a hypothetical situation in which an offender had been detained under the Queensland Act solely for the purpose of receiving rehabilitative treatment. Questions of statutory power might arise where the executive subsequently failed to provide the anticipated treatment. However, the appellant in Francis had not been detained solely for the purpose of treatment and accordingly, the task posed for the judge undertaking the annual review was not resolved simply by the appellant pointing to 'departmental ineptitude' [23]. That was because the ultimate question remained whether the appellant was a serious danger to the community if a detention or supervision order was not made.

The comments in Lawrence [2008]

As has been noted, the suggestion in Lawrence [2008] was that an 'unreasonable' failure by the executive to provide the infrastructure that would enable an offender to be released on a supervision order might justify a decision to not make any order under the equivalent of s 17 of the DSO Act. It must be acknowledged that his Honour's suggestion was only made in passing. However, there are difficulties with the suggestion.
First, it relies on construing the Queensland Act as conferring a residual discretion to not make a detention or supervision order, notwithstanding a finding that an offender is, or remains, a serious danger to the community. The Court of Appeal has rejected that construction of the DSO Act.
Second, and in any event, the basis on which the court could refuse to make any order for the detention or supervision of an offender, in the face of a finding that the offender was a serious danger to the community if an order was not made, would need to be clearly established.
Third, as has been emphasised, the DSO Act (and the Queensland Act) does not empower the court to impose conditions on the detention of an offender. Accordingly, the Act contains no criteria by which the reasonableness or otherwise of executive action or inaction could be assessed.
Those concerns raise two further related issues. The first issue concerns the point at which in the review process the court could consider, if at all, the question of whether the executive had discharged any obligation that it might owe under the DSO Act. The second issue concerns the extent to which, if at all, the court can consider the executive's capacity to resource the detention, supervision, care and treatment of offenders who are subject to the Act. As has been noted, the respondent also raised this issue as a matter that was relevant to the question of whether a supervision order should be made if it was found that he remained a serious danger to the community.

The reasoning of Wheeler JA in Williams

It is necessary to recall the reasoning of Wheeler JA in Williams on why the court is compelled to make an order under s 17 or s 33 once it has been found that a person is, or remains, a serious danger to the community: the court will have already balanced all relevant considerations in finding that there was an unacceptable risk of the person committing a serious sexual offence if a detention or supervision order was not made. The reference to 'balancing considerations' was to her Honour's comments earlier in Williams regarding the meaning to be attributed to the expression 'unacceptable risk'. Consequently, the concept of 'unacceptable' risk requires the court to balance various factors, including the effect of making a detention or supervision order on a person who has completed a custodial sentence that had been imposed as punishment for past offending.
The court does not retain a discretion over whether to make an order once it is found, on the balancing exercise required by s 7(1) of the DSO Act, that the person is, or remains, a serious danger to the community. At that point, the reason why the risk that the offender might commit a serious sexual offence is unacceptable is irrelevant.
Accordingly, the proposition that the executive owes offenders who are detained under the DSO Act an obligation to implement the preventative objects of the Act by, for example, providing treatment for their rehabilitation, could only operate, if at all, as a factor relevant to determining whether the risk of future sexual offending was unacceptable. The power to make an order under either s 17 or s 33 is conditioned on, and must be exercised following, a finding that the offender is, or remains, a serious danger to the community.

Executive decisions on resourcing

As has been noted, a difficulty with the suggestion that the court could refuse to make a detention or supervision order where the executive had unreasonably failed to provide supervision or support facilities for an offender is that the Act does not provide any criteria by the which the court can assess the reasonableness or otherwise of the executive's decisions and actions. There are, in my view, further difficulties with the suggestion that can best be explained by reference to the respondent's submission that the court should assume that the executive will perform its function of protecting the community by providing appropriate assets and resources to fund the conditions imposed by a supervision order.
That submission was made independently of the submission that the DSO Act imposed a positive obligation on the executive to implement the preventative objects of the Act; it was not necessary for the second submission to be adopted for the first submission to be accepted. Accordingly, it is proposed to deal with the first submission as a separate topic. It is proposed to then return to the submission that the Act imposes a positive obligation on the executive, but only to briefly summarise the conclusions that have been reached so far as they are relevant to the determination of this application.

Is the court constrained in making a supervision order by what is reasonable and practicable?

The observations of Wheeler JA in Williams

The respondent's submission regarding the provision of whatever resources might be required to fulfil the conditions imposed by a supervision order was based on the observations made by Wheeler JA in Williams.
Her Honour noted that, at first instance, there had been evidence that a supervision order might have been adequate to ensure the protection of the community but no work had been done to assess the offender's suitability for any particular program or to formulate any specific conditions that might have been appropriate. Her Honour continued:
[B]efore McKechnie J, there was simply a range of possibilities raised with an indication that there were funding difficulties of some kind, and no indication of how appropriate programmes might be made available to, and what conditions should be imposed upon, the respondent.
There are a number of issues raised by the situation in which his Honour found himself. One, which was touched upon during the course of argument before us, was the question of funding difficulties. In my view, they were not matters with which his Honour had to be concerned. The Act provides in s 4 that its objects are, inter alia, to provide for continuing 'control, care, or treatment' of persons of a particular class. If those persons require control, care or treatment in order to protect that community, the court can assume that, if an order is made, the executive will perform its function of protecting the community by the provision of appropriate assessment and resources. There is an analogy with the making of orders such as intensive supervision orders to which offenders may be sentenced. Those orders may require offenders to undergo certain forms of assessment or programmes. Since Parliament has made provision for them, the court must assume they will be available [80] ‑ [81]. (emphasis added)
Two related points should be noted about those observations. First, her Honour was referring to the provision of resources to enable conditions imposed by a supervision order to be fulfilled. Second, as has been emphasised, the DSO Act expressly provides that a supervision order must incorporate certain conditions and that the court may impose such other conditions as it regards as being appropriate. The objects and terms of the DSO Act then define the scope of the discretionary power to impose appropriate conditions.

Winters v The Attorney General of New South Wales

Those points were reflected in the various judgments delivered by the New South Wales Court of Appeal in Winters v Attorney General (NSW) [2008] NSWCA 33. In that case, the primary judge had found that the offender could have been adequately supervised in the community on an extended supervision order if he was provided with intensive one‑on‑one counselling by a particular psychologist. The psychologist concerned was willing to provide counselling and was confident that it would be effective. However, the government had not provided funds for the counselling and the offender was unable to pay from his resources. The primary judge had concluded that it was necessary in those circumstances to make a continuing detention order [144] ‑ [148].
Mason P observed that there had been no evidence on whether there was an existing appropriation within the current budget to fund the provision of counselling services to the offender. His Honour further noted that this was not surprising as it was not the concern of courts to address questions of appropriation:
If a court has jurisdiction to declare and enforce a liability that has fiscal consequences for the State then the court should attend to its business and make whatever order is called for, leaving the appropriation of necessary funds up to Parliament (see New South Wales v Commonwealth (No 1) (1932) 46 CLR 155, 177; New South Wales v Bardolph (1933) 52 CLR 455, 506 - 507). In the unlikely event that the necessary appropriation has not already occurred, then it is a matter for the Parliament to attend to it later. A court should not hold its hand on this account.
These high constitutional principles apply where a court is imposing a direct obligation upon the Executive, as with entering judgment against the State in tort or contract. They also apply when a court is directing or authorising conduct that will involve expenditure in the ordinary course, as with the issuance of a warrant, an order committing to gaol or an order revoking bail. Many statutes empower courts to make orders that have fiscal impacts upon the State or Commonwealth that are simply taken for granted …
But there are obvious limits. A court could not impose an obligation upon the State (or anyone else) unless there was both jurisdiction and power to do so. The question of power turns upon the application of an established cause of action or statutory authority [13] ‑ [15].
His Honour also noted that, in upholding that constitutional validity of the Queensland Act in Fardon, the High Court had emphasised that the Supreme Court exercised the discretions conferred by the Act independently of the legislature or the executive. Accordingly:
It is therefore significant that s 11 of the [New South Wales] Act speaks of the conditions of the supervision order being 'such conditions as the Supreme Court considers appropriate'. But the Court's power to impose particular conditions depends in turn upon the scope of the Act, s 11 in particular [19]. (original emphasis)
It followed that the question to be determined was whether the court, in considering whether it was appropriate to require an offender to participate in a particular treatment or a rehabilitation program, could assume that the cost of providing that program would be met by the State in accordance with the constitutional principles that applied. The answer to that question was ultimately to be determined by reference to the powers conferred on the court to impose various conditions as part of a supervision order. On its proper construction, the New South Wales Act did not empower the court to make a direction about participation in a particular treatment or rehabilitation programme, unless it was one that was available to the offender. Accordingly, there was no power conferred on the court by the Act to direct the State to pay for the provision of counselling by the nominated psychologist.
Giles JA noted that a supervision order was addressed to the offender, directing him or her to comply with the conditions stated in the order. The order was not addressed to third parties. His Honour continued:
The adequacy of supervision is not determined in a vacuum. There is no order to begin with. There must be postulated conditions of an extended supervision order, or a range of conditions of an extended supervision order, with assessment of the adequacy of the supervision according to the appropriate standard for adequacy. Any postulated extended supervision order is devised in the light of matters such as medical knowledge concerning anti‑libidinal treatment, psychological knowledge concerning effective counselling, and the availability of physical supervision whether by Government-provided officers or by family of the offender. An extended supervision order is above all a practical tool with a view to reduction of the likelihood of re‑offending [58].
His Honour emphasised that the adequacy of any supervision order was to be determined by reference to all of the circumstances relevant to the particular offender, including the extent to which the government was willing to provide assistance such as the provision of anti‑libidinal medication at a price the offender could afford or psychological counselling without cost or at a cost that was within the means of the offender. Consequently, the question was whether an extended supervision order containing certain conditions would provide adequate supervision in practice, rather than on the theoretical assumption that the government would provide the means by which any condition imposed by the court could be fulfilled.
Finally, it should be noted that Giles JA expressed reservations about the comments of Wheeler JA in Williams [81]. His Honour observed:
I respectfully question why the possibility of an order that an offender undertake a programme means that the court must assume that it will be available … In any event, it is not clear that the assumption will stand in the face of evidence to the contrary: earlier in the passage set out above Her Honour said that the court 'can assume', which leaves open that it will not. Her Honour said that funding difficulty was not a matter with which the judge had to be concerned. But I do not think that negates concern with evidence that the program will not be available, where the unavailability is due to lack of funding just as much as where it is for some other reason [81].

Other authorities

The submission made on behalf of the respondent in this application was also put in Pindan [No 2].Jenkins J observed in relation to the submission that:
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 [85].

Jenkins J concluded in Pindan [No 1] that the respondent's cognitive impairment meant that it was 'practically impossible for him to personally participate in any meaningful way in a defence of the DPP's application or to provide instructions to counsel in respect of the DPP's application' [131]. Her Honour found that, 'the expert evidence [was] overwhelmingly to the effect that [the respondent was] not mentally fit to stand trial on any serious criminal offence because he has a permanent cognitive impairment and that that situation [was] highly unlikely to change' [8].
The opinions expressed by Dr Febbo and Dr Wynn Owen on the risk of the respondent sexually re‑offending were further reviewed by Jenkins J in Pindan [No 2]. The effect of Dr Febbo's evidence was said to be that (at [22]):
(a)there was a high risk of the respondent committing a further serious sexual offence if he was not subject to a detention or supervision order;
(b)it was extremely unlikely that the continued detention of the respondent would further reduce the risk of him re‑offending on release to the community as he was unable to participate in counselling programmes;
(c)the risk of the respondent re‑offending would be determined by his placement and level of monitoring and supervision.
As has been noted, Dr Wynn Owen also considered that there was a high risk of the respondent re‑offending without supervision and that his capacity to engage in any rehabilitation program was severely compromised by his cognitive impairment.
Jenkins J also received evidence from a psychologist, Ms Ballantyne. She had prepared a report on the respondent's sex offender treatment options (exhibit 1, item 96). She concluded that the respondent would never be included in the programs typically available for high risk sexual offenders. He was also unlikely to receive direct psychological services from the dangerous sexual offender psychological team, either in prison or in the community, because of his mental impairment.

The community supervision assessment prepared for the DSO Application

A community supervision assessment was prepared by the Broome Community Corrections Centre for the purpose of the DSO Application (exhibit 1, item 95). Ms Parriman was responsible for preparing the assessment. The assessment advised that (exhibit 1, (353 ‑ 356)):
(a)Discussions had been held with the respondent about where he might live if he was released to the community. It was suggested that he might consider residing with his family in the Looma community. The respondent had reluctantly agreed to that plan.
(b)Contact had been made with the chairperson of the Looma community, Ms Benno Pindan. Ms Pindan had expressed some personal support for the respondent being relocated to the community but Ms Parriman had been unable to establish whether the community, as a whole, had been prepared to receive and accommodate the respondent.
(c)The respondent had not had any significant contact with his family for nearly 15 years. The assessment commented:
For that reason if released to reside at Looma community, Mr Pindan is facing living in a remote community with family and community members with whom he has yet to re‑establish trust and respect before he would actually feel comfortable living and remaining there. Given these concerns Mr Pindan's immediate release back to Looma community will be difficult for him, his family and the wider Looma community (exhibit 1 at (358)).
(d)However, the Department considered that the Looma community potentially remained the most suitable placement for the respondent on his eventual release from prison, subject to the willingness of the community to agree to the respondent residing in the community and 'their capacity to provide the extensive support and monitoring [the respondent] requires' (exhibit 1, (356)).
(e)A more graduated reintegration process could be facilitated by the Department if a continuing detention order was made. Those plans could incorporate the respondent being transferred to WKRP once the facility became operational.
An addendum to the community supervision assessment was provided by Ms Parriman and others on 13 September 2011 (exhibit 2, item 112). The addendum indicated that there had been further discussions with the Looma community about accommodating the respondent. Concerns had been expressed in those discussions about the ability of the respondent's family to manage the respondent, particularly given the lengthy period during which there had been no contact between the respondent and his family. It was suggested that the respondent would need to re‑establish family relationships prior to being released back to the Looma community.
The report concluded that the management and supervision of the respondent would present a significant challenge to the Looma community and his family. The community did not possess the infrastructure to assist the respondent's family or caregivers with implementing and maintaining strategies to help manage the respondent's behaviours or with the provision of respite for carers and family members (exhibit 2, item 112 at (422)). Ms Parriman explained in her evidence in the Review Application that the Looma community was located approximately 210 km from Broome. It comprised about 150 people, including many children. There was a multifunctional police centre accommodating two police officers. There was a health clinic but it was not permanently serviced by a registered nurse or a doctor (ts 456).
A further community supervision assessment was prepared in April 2012 (exhibit 3, item 116). The assessment report summarised the results of further enquiries that had been about suitable accommodation for the respondent should he be released to the community. The alternatives considered were the Looma community and family communities in Fitzroy Crossing and Broome. However, the respondent's family in each of those communities remained hesitant about receiving him as they had no understanding of his health problems and how to support him given those problems. There was also no agreement among his family as to who should be responsible for his primary care and there were limits on the resources that were available for that purpose.
The authors of the report stated that they had been unable to provide the court with a plan containing adequate strategies to address, manage and reduce the respondent's risk of re‑offending if he was to be released pursuant to a supervision order. It was noted that Dr Febbo had stated in his report of 9 February 2011 that the respondent required a level of intensive supervision that might not be available other than in a specialised unit. It was not possible to provide such a level of intensive supervision in Broome and/or the West Kimberley. It was also noted that there would be difficulties in implementing a supervision order having regard to the likely inability of the respondent to understand and comply with the requirements of such an order.

Events since the DSO Application

The DSO case conference

A DSO case conference was held within the Department shortly after Jenkins J published her reasons in Pindan [No 2] (exhibit 12, item 5). Adult Community Corrections was tasked with exploring 'what support are able to be put in place in order to develop a reintegration plan for Mr Pindan' [21].

Deputy Commissioner's letter - 14 January 2013

[Suppressed] wrote to the Deputy Commissioner for Community and Youth Justice on 10 December 2012 referring to the possibility that the respondent might be transferred to WKRP. [Suppressed] noted that this would have the advantage of returning the respondent to country. [Suppressed] also suggested that an inter‑agency meeting should be convened with representatives of the Department, the Disability Services Commission, the Mental Health Commission and representatives of the police.
The Deputy Commissioner replied to [Suppressed] by letter dated 14 January 2013 (exhibit 9, item 9). He advised that consideration would be given to whether it was appropriate for the respondent to be transferred to WKRP once 'the family confirm their willingness to allow him to return to Looma'. Similarly, inter‑agency discussions would be coordinated once the family's position had been confirmed.

Public Protection Review Committee meetings

The respondent's circumstances were discussed at meetings of the Public Protection Review Committee of the Department held on 15 January 2013, 2 April 2013 and 6 May 2013 (exhibit 12, item 6).
The meeting held on 15 January 2013 noted that Adult Community Corrections was awaiting a decision on whether the respondent's family was willing to accommodate him at Looma. Alternative accommodation options were to be explored with the Disability Services Commission and [Suppressed] if relocation of the respondent to Looma was not possible.
The minutes of the meeting held on 2 April 2013 noted that the Looma community had advised that they were not prepared to allow the respondent to reside at Looma. It was not recommended that the respondent be relocated to the Derby Prison as it was medium security prison, there were female prisoners held at the prison and the respondent's behaviour was unmanageable. It was proposed that the respondent's situation be discussed at the next meeting with the aim of making a recommendation to 'move forward'.
It was noted at the meeting held on 6 May 2013 that a transfer to Derby Prison had not been approved; that a video link was to be arranged for the respondent to speak with members of his family and 'internal management' of the respondent was to be 'put in place'.

Ms Kalders' evidence

Ms Kalders provided an overview of the steps that had been taken by the Department since the DSO Application in a letter addressed to the applicant and dated 25 September 2013 (exhibit 12, item 1; exhibit 9, item 14 is a similar letter dated 21 May 2013 from Ms Harker, Acting Commissioner of the Department). She advised that the focus of the Department since the hearing of the application had been on resolving the possibility of placing the respondent with his family at Looma and in setting up contact between the respondent and his family. In addition, work had been undertaken on a behaviour management plan and on the possibility of transferring the respondent to WKRP.
According to Ms Kalders, the 'core' of the behaviour management plan was directed to ensuring that the Department fully understood the respondent's behaviour functioning, capabilities and risk. It was proposed that the respondent would be temporarily relocated to WKRP once that understanding had been obtained. Ms Kalders stated that:
The plan is to ensure we have a clear baseline of his behaviour, abilities and capabilities. This will enable us to fully assess his reintegration needs, and risk and protective factors, as well as his ability to manage different settings, with a view to what his community needs actually are. This information is vital for us to plan any next steps towards reintegration into the community (exhibit 12, item 1 at page 3).
Ms Kalders identified two steps that had been taken for that purpose. A psychologist, Mr Keller, had reviewed the respondent's case and observed his behaviour in late June 2013. He had produced a report dated 12 July 2013 (exhibit 12, item 2).
Second, a psychologist with the Disability Services Commission, Ms Hammer, had commenced undertaking an adapted functioning assessment. That assessment had not been completed at the time that Ms Kalders wrote to the applicant and Ms Hammer did not give evidence in the Review Application.
Ms Kalders also referred in her letter to cross‑agency meetings that had been held to discuss the respondent on 13 June and 2 September 2013. Representatives from the Department, the Mental Health Commission, the Disability Services Commission, [Suppressed], Outcare and the police had attended those meetings.
Finally, Ms Kalders referred to discussions that had been conducted with Departmental staff regarding what might be entailed in relocating the respondent to WKRP. She provided a description of the prison and the philosophy that had underpinned its design and intended operation. Her letter to the applicant concluded:
[The respondent] is a person who has major challenges with self care, interaction with others, adaption to change and ability to self regulate his behaviour. Those are all aspects of behaviour that are necessary to live with others and will potentially limit [the respondent's] ability to cope on this site. Equally it will be a challenge to those other prisoners who have to live with him. …
We are very unsure how [the respondent] will cope with a transfer to WKRP and do not want to put him at risk to himself. We also want to monitor and assess his response to this new environment. He may settle, give he will back on country, he may adapt and become more interactive with others. Most of these are unlikely given what we know about his cognitive and adaptive functioning.
Ms Kalders stated in her evidence that the Department had focused on five 'key' areas in relation to the management of the respondent: exploring accommodation options; establishing a connection between the respondent and his family; developing a management/monitoring plan and in particular, assessing the respondent's adaptive behaviour; examining the possibility of transferring the respondent to WKRP and 'pulling together and reconvening' the cross-agency management meetings (ts 411). She explained that cross‑agency meetings had not been held between late 2011/early 2012 and June 2013 as the Department had been waiting on the outcome of the various approaches to the Looma community regarding the possible accommodation of the respondent with his family (ts 412). She also explained that the purpose of the behaviour management plan was to gain an understanding of the respondent's current level of functioning (ts 413). The Department intended to relocate the respondent to WKRP for a short period to ascertain whether he was able to cope with a change in his custodial accommodation and the different operating environment at the prison. Ms Kalders provided a further explanation in her evidence about the objectives of the WKRP and the way in which that had influenced its construction and operation.
Ms Kalders accepted in cross‑examination that it had been necessary to take steps in relation to the management of the respondent following the publication of the reasons of Jenkins J in Pindan [No 2]. However, she stressed that the management of the respondent presented complex issues (ts 421). She maintained that the Department had formulated a reintegration plan of the kind that had been envisaged by Jenkins J. The first step in the plan was an assessment of the respondent's level of functioning. There were a number of further steps that had to be completed before the respondent could be reintegrated into the community (ts 423 ‑ 424). Ms Kalders accepted that only the first part of the plan had been implemented (ts 424). In particular, she indicated that the review undertaken by Mr Keller was only the first step in the process of developing a management plan (ts 443) and accordingly, no behavioural management plan had been developed as of late September 2013 (ts 445).
Ms Kalders also confirmed that the Department had agreed to reconsider a transfer of the respondent to WKRP and that it was 'currently working towards a plan to facilitate this, as well as a management plan which determines reintegration activities for the next six to 12 months' (ts 429 and see exhibit 11). She indicated that the first steps of the reintegration plan were matters that would also be undertaken in that time frame (ts 431). She stated:
At the June point [the June 2013 inter-agency meeting], my sense is that we were aware that - of Jenkins J's previous criticism and we, as the Department, are often open to criticism. We were at that point in time attempting, you know - well, I think, that pulling together a number of strands, given that a number of options were now closed - indefinitely closed to us, because there was uncertainty about some of these pathways - the pathway that then we focused on was actually seeing what he would be like back in country (ts 431).
The reference in that passage to options being closed was to the possibility of the respondent being released back to the Looma community. The alternative pathway involved a possible relocation of the respondent to WKRP. Ms Kalders agreed that the Department had been unable to identify any appropriate accommodation for the respondent should he be released back to the community.

The psychological and psychiatric reports received for the Review Application

Dr Wynn Owen

Further psychiatric and psychological reports were received for the purpose of the Review Application. In particular, Dr Wynn Owen provided another psychiatric report in which he confirmed his earlier opinion that the respondent presented with global cognitive deficits and that there was a high risk of him sexually re‑offending (exhibit 9, item 16). The respondent's level of intellectual functioning was such that he was highly unlikely to benefit from psychological interventions or to learn from programmes intended to reduce his risk of sexual offending or to address his alcohol and other drug use.
However, Dr Wynn Owen noted from his discussions with Ms Lea McKay (Coordinator, Aboriginal Prison Services, Casuarina Prison) that the respondent's behaviour and functioning had improved since his stay in the Frankland Centre. He had been able to reside in the same unit and had been consistently performing food trolley runs for the unit. That demonstrated that the respondent could be motivated to complete tasks and abide by a routine. He had also voluntarily commenced attending an education session and was consistently more settled and cooperative over a sustained period. Those changes led Dr Wynn Owen to conclude that regular medication potentially moderated the respondent's impulsivity so that his interpersonal relationships improved and his anti-social behaviour diminished.
Dr Wynn Owen made separate recommendations according to whether the respondent remained in detention or was released to the community subject to a supervision order. He recommended that, if the respondent continued to be detained in custody:
(a)he should be transferred to WKRP if possible;
(b)his current antipsychotic medication regime should be continued;
(c)a structured activity program should be provided that was appropriate to the respondent's culture and level of cognitive functioning;
(d)behavioural observation and documentation should be undertaken to assist in the assessment of the respondent's mental state and treatment response;
(e)contact with relatives in the Kimberley should be encouraged and maintained;
(f)a mentor to facilitate the transition between Casuarina Prison and WKRP should be provided if a transfer was possible;
(g)a further comprehensive sexual re‑offending risk review should be undertaken prior to the respondent being release.
Dr Wynn Owen further recommended that the following conditions be imposed if the respondent was released under a supervision order:
(a)24‑hour residential supervision in culturally appropriate accommodation;
(b)continuation of the respondent's antipsychotic medication (with oversight by a comprehensive mental health team);
(c)no contact with children aged 16 years or under;
(d)abstinence from alcohol and illicit drugs;
(e)a highly structured seven‑day activity program;
(f)further comprehensive sexual re‑offending risk review in 12 months.
Dr Wynn Owen confirmed in his evidence that his assessment of the risk of the respondent sexually re‑offending remained unchanged from his earlier assessment. The risk was exacerbated by the respondent using alcohol (ts 422). However, Dr Wynn Owen also noted that the respondent had benefited from the period spent in the Frankland Centre as an antipsychotic medication regime had been established that had settled his behaviour (ts 427 - 430).

As he had done in the DSO Application, Dr Wynn Owen emphasised that the respondent would benefit from being placed in a non‑custodial environment because of his cognitive impairment. A prison environment was not therapeutic and caused the respondent frustration and anxiety as he did not fully comprehend the rules and regimes that applied.
Accordingly, Dr Wynn Owen supported a long term community reintegration plan for the respondent (ts 437). The respondent required, as part of that plan, a mentor and carers to assist in his daily living. However, further information was required to determine the respondent's needs (ts 440). Dr Wynn Owen had recommended in his report provided for the DSO Application that behavioural observation and documentation of the respondent's sleep patterns, eating, personal hygiene, mood and behaviours should be undertaken to assist in the development of a baseline from which to assess his mental state and treatment response. He considered that it was still necessary to undertake that assessment (ts 440).

Dr Patchett

The respondent has been periodically reviewed by a consultant forensic psychiatrist, Dr Patchett. He was initially under Dr Patchett's care on admission to the Frankland Centre on 30 March 2011. According to Dr Patchett, the prison mental health team had monitored the respondent on his return to Casuarina Prison. His behaviour was noted to have improved but he remained isolated, with poor hygiene. It was impossible to interview him in any depth because of his poor engagement and extremely limited speech. He was last seen by Dr Patchett on 26 June 2013. His presentation on that occasion was consistent with what had been noted by the prison mental health team (exhibit 10).

Dr Yewers

Dr Yewers, a psychologist employed by the Department of Corrective Services, provided a dangerous sex offender treatment progress report for the purpose of the Review Application (exhibit 9, item 15). She noted that a review had been undertaken of the neuropsychological and psychiatric assessments that have been utilised in determining the respondent's status as a dangerous sexual offender. The respondent had been subsequently considered to be an unsuitable candidate for psychological intervention.
Dr Yewers had conducted a further interview with the respondent Dr Yewers on 6 May 2013. The purpose of interview had been to establish whether earlier assessments of the respondent's functioning and unsuitability for psychological intervention remained valid.
Dr Yewers concluded that the respondent's presentation during the interview had been consistent with the various reports considered by Jenkins J in the DSO Application. His cognitive impairment was chronic and had not abated. He had significant global impairment in cognitive functioning and impoverished communication. He lacked the capacity to engage in psychological intervention and it was improbable that he would derive any benefit from intervention.
Dr Yewers noted that the respondent did not comprehend the connection between her interview and his annual review. He had reiterated throughout the interview that he 'want[ed] to be free' but had a very limited notion of what he would do if released on a supervision order, indicating only that he would work, live in Broome and hunt for food. He gave no indication of planning to abstain from either alcohol or cannabis - indeed, he had affirmed his 'love' of alcohol.

Mr Keller

Mr Keller stated in his report that the purpose of his assessment was to assist the Department and other government agencies to develop a reintegration plan for the respondent and in particular, to consider the possibility of him being transferred to WKRP (exhibit 12, item 2). A transfer to WKRP would facilitate contact between the respondent and his family.
Mr Keller's report was primarily directed to identifying problems that might be encountered in relocating the respondent to WKRP, including difficulties that might be experienced by him as a consequence of a change in his custodial environment. It is not necessary to further summarise those possible difficulties.
A report by another clinical psychologist, Ms Marley, dated 31 July 2013 also considered a plan for relocating the respondent to WKRP (exhibit 12, item 3).

The community supervision assessment

The community supervision assessment prepared for the purpose of the Review Application indicated that contact had been made with members of the respondent's family residing in Broome and Fitzroy Crossing to discuss the possibility of the respondent residing with them (exhibit 9, (17)). It was concluded that it would not be appropriate to release the respondent to reside with family members at either of those locations.
The report concluded that:
The lack of appropriately monitored and supported accommodation options, limited family support and restricted availability of resources in the community, along with Mr Pindan's risk and cognitive difficulties, continue to be significant barriers in providing a suitable release plan for Mr Pindan.
Mr Pindan's return to the Kimberley (and transfer to WKRP) to be closer to his family and 'back on country', which the Department is currently working towards, is one avenue to enable Mr Pindan and his family to reconnect and rebuild their relationships in a more culturally appropriate environment, before consideration is given to releasing him to a Supervision Order sometime in the future.
Ms Parriman explained in her evidence that she had been tasked with identifying possible accommodation for the respondent if he was released to the community. She had spoken to the respondent's family; she had made inquiries with the Department of Housing about the availability of accommodation in Broome, Derby and Fitzroy Crossing; she had approached a hostel in Derby and she had spoken to an outreach service located in Broome about the possibility of that service assisting with the reintegration of the respondent into the community (ts 464 - 466). However, Ms Parriman had been unable to locate any accommodation that would be appropriate for the respondent if he was released. Further, the outreach service had indicated that it did not have the funding to provide assistance of the kind required by the respondent.
The attitude of the Looma community had been recorded in a letter dated 12 April 2013 from the Looma Community Council to Adult Community Corrections at Broome. Ms Pindan, as chairperson of the council, had confirmed that the community had concerns about the release of the respondent and that the community and members of the respondent's family were unable to assume the responsibility of managing and looking after him. The letter indicated that there were differences within the respondent's family about their willingness to establish and maintain contact with the respondent, including while he remained in custody (exhibit 9, item 12).
Ms Parriman stated that, in her opinion, the Looma community had decided that it could not receive the respondent some time well before when the letter was written by Ms Pindan on behalf of the Community Council. Indeed, she considered that the decision had been made before the DSO Application was determined by Jenkins J - she thought that the decision had been made by about the end of 2011 (ts 475). Ms Parriman explained that it was difficult for family and community members to formally record their concerns about accommodating the respondent for cultural reasons. She did not consider that it had been likely that the community would change its position when she was asked to further explore the possibility of the respondent residing at Looma following the DSO Application.
Ms Parriman also indicated that she had recommended that a reintegration plan be developed for the respondent from some time prior to February 2011 (ts 467). She was not aware of what steps had been taken in relation to formulating a plan but she was told in March 2013 that the possibility of the respondent being relocated to WKRP was to be further considered.

Findings

The response to the comments made in Pindan [No 2]

The effect of Ms Kalder's evidence was to (rightly, in my opinion) accept the comments that had been made by Jenkins J in Pindan [No 2] regarding the future management of the respondent. However, it was submitted on behalf of the respondent that the Department had subsequently failed to adequately address the issues identified by her Honour. It was suggested that, at best, the Department had formulated a plan to make a plan for the respondent's management and that, in substance, no progress had been made in identifying and implementing a programme that would actually progress the respondent towards his release to the community.
In my view, there was some force in the criticisms made on behalf of the respondent. It appears that the Department and other government agencies took no effective steps to devise and implement a reintegration plan for the respondent for some time following the DSO Application. That inactivity was apparently explained by a decision to await the outcome of further inquiries with members of the Looma community about whether they would accommodate the respondent. It is difficult to understand that approach.
First, Ms Parriman had concluded that the community was not prepared to receive the respondent by about the end of 2011. She was the departmental officer responsible for liaising with the community and she impressed in the hearing of the Review Application as being diligent and perceptive. It is not apparent why her opinion would not have been heeded.
Second, it must have been readily apparent that the Looma community lacked the resources necessary to manage the respondent having regard to the profound nature of his cognitive impairment. The respondent's care and treatment needs are, self‑evidently, complex.
Third, it must also have been apparent that it was most unlikely that the court would agree to immediately release the respondent to the Looma community having regard to matters such as the size and location of the community and its associated lack of infrastructure appropriate for the management and supervision the respondent; the respondent's offending history; the assessments that had been made of the risk of the respondent re‑offending and the complex issues involved in reintegrating the respondent into the community. Ms Parriman had identified the need for a reintegration plan in 2011. The need for a sophisticated and multifaceted plan was obvious from various reports that had been prepared for the DSO Application - in particular, the report of Dr Wynn Owen.
However, I do not consider that the executive, in particular the Department, can be said to have abandoned the management of the respondent or that it had repudiated any obligation that it might have owed him. The Department has formulated, at least, the initial steps in a reintegration plan for the respondent. The first step in that plan, as described by Ms Kalder, accorded with the first step identified by Dr Wynn Owen as being essential for a reintegration plan - behavioural observation and documentation to obtain a better understanding of the respondent's functioning. The second step in the plan involves temporarily relocating the respondent to WKRP. Again, that accorded with the opinions expressed by Dr Febbo and Dr Wynn Owen on the future management of the respondent.
I find that:
(a)The executive has not repudiated any obligation that it might have owed to the respondent in the sense contemplated by the Queensland Court of Appeal in Francis.
(b)Accordingly, the continued detention of the respondent would not be punitive. Rather, his continuing detention would be protective of the community and for the purposes of controlling the respondent and providing for his care and treatment.
The latter finding would stand if the question to be decided was expressed positively - that is, not whether the executive had repudiated its obligations but whether it had done whatever was reasonably necessary to perform those obligations since the DSO Application. It cannot be concluded that the continuing detention of the respondent would be punitive having regard to the plans that have been devised and the steps that have been taken following the application.

Does the respondent remain a serious danger to the community?

The respondent did not challenge the acceptability or cogency of the evidence presented in the Review Application by the applicant. I find that the evidence satisfied the standard prescribed by s 7(2)(a) of the DSO Act.
I further find that the psychiatric and psychological evidence presented in the application (s 7(3)(a), (b) and (c)) established that:
(a)The respondent suffers from cognitive impairment to a significant degree. The impairment is permanent and is associated with a possible head injury and alcohol and substance abuse. The respondent has antisocial personality traits and there is some evidence of a psychotic disorder or occasional psychotic symptoms.
(b)The respondent has poor impulse control and little, if any, insight into his offending. That is demonstrated not just by the reports and evidence of Dr Davidson, Dr Febbo and Dr Wynn Owen, but also by the respondent's indication that he would resume consuming alcohol if he was released back to the community unsupervised.
(c)There is a high risk of the respondent committing a serious sexual offence as a result of his cognitive impairment if he is not supervised. The nature and magnitude of the risk has not altered since the DSO Application. There is no counselling or similar program in which the respondent could participate that would ameliorate the risk and his cognitive impairment and other personality traits that pre-dispose him to sexual offending have not abated.
(d)Antipsychotic medication has assisted the respondent to become more settled, but there is no evidence that a medication regime, by itself, would significantly reduce the risk of the respondent committing a serious sexual offence in the future. The respondent's present level of functioning is such that he would require close supervision to ensure that he remained compliant with any medication regime.
As to the remainder of the factors specified in s 7(3) of the DSO Act:
(a)The pattern of the respondent's offending is as described in Pindan [No 2].
(b)The respondent is unable to participate in any rehabilitation program or to take any other step to address the causes of his offending. That, of course, is not through any choice exercised by the respondent, but due to the level of his functioning. I make that finding on the reports provided by Dr Febbo, Dr Wynn Owen, Dr Yewers and Mr Keller and the evidence of Dr Wynn Owen.
(c)The respondent's criminal record and antecedents are consistent with the assessments of risk undertaken by Dr Febbo and Dr Wynn Owen and their opinions about the source, nature and magnitude of the risk of the respondent committing a serious sexual offence. The overall effect of the material presented in the Review Application was to reinforce the assessments and opinions expressed by Dr Febbo and Dr Wynn Owen.
I further find that the risk of the respondent committing a serious sexual offence is unacceptable having regard to the findings made above and after taking into account the effect of a detention order on the respondent (the matters to which Steytler P and Buss JA referred in GTR and which were emphasised by the Victorian Court of Appeal in Nigro), including the respondent's personal circumstances, and the steps taken by the executive since the DSO Application was determined. I make that finding according to the standard required by s 7(2) of the DSO Act.

Should the detention order be revoked and a supervision order made?

I accept the opinion expressed by Dr Febbo in the DSO Application that the risk of the respondent committing a serious sexual offence was dependent on his placement and level of monitoring and supervision. I have also held that it is relevant to consider what is reasonable and practicable when deciding the conditions that might be imposed under a supervision order. It necessarily follows that matters concerning the availability of facilities and programmes and the reasonableness and practicality of supervision measures that might be implemented are relevant to the threshold question of whether a detention or supervision order should be made.
I have found, on the opinions expressed by Dr Febbo and Dr Wynn Owen, that the respondent would require continuous personal supervision and monitoring to ensure that he did not present an unacceptable risk of re‑offending sexually. Dr Febbo thought that consideration should be given to accommodating the respondent in a unit designed for individuals suffering from major psychiatric impairment. Dr Wynn Owen considered that the respondent would need to be continuously supervised in culturally appropriate accommodation. He also considered that it was necessary for a re-integration plan to be developed and implemented before the respondent could be released to the community - to ensure that the community was adequately protected and to maintain the psychological and emotional well‑being of the respondent.
The Department has formulated a re‑integration plan for the respondent. It is in the early stages of implementation. In my view, the plan needs to be further progressed before consideration can be given to releasing the respondent to the community.
Further, the Department has been unable to identify any site where the respondent could be accommodated and managed if he was released on a supervision order. The comments made by McKechnie J in Alvisse [No 6] regarding the need for a specialist facility to accommodate persons such as the respondent remain apposite.
The paramount consideration in determining whether to make a detention order or a supervision order is the need to ensure adequate protection of the community: s 17(2) DSO Act. In my view, at present, the community can only be adequately protected if the continuing detention order made by Jenkins J is not rescinded.

A final comment

At the heart of the submissions made on behalf of the respondent was a proposition that is irrefutable: that the respondent's cognitive impairment is such that he is entirely dependent on the executive to formulate and implement a plan that will enable him to be eventually returned to the community - albeit, almost certainly subject to close supervision. He is unable to initiate any change in his behaviour or participate in any sophisticated programme that would assist in achieving that result. His prospects of being returned to the community, without posing an unacceptable risk of re‑offending sexually, are entirely dependent on the Department and other government agencies. He is, accordingly, peculiarly vulnerable to the actions of the executive government. It might well be thought that the government has a particular responsibility for the respondent in those circumstances, regardless of whether the DSO Act imposes a positive obligation to facilitate his care and treatment.