Director of Public Prosecutions (WA) v Pindan [No 4] - [2015] WASC 124

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- PINDAN [No 4] [2015] WASC 124

CORAM: McKECHNIE J

HEARD: 7 APRIL 2015

DELIVERED : 14 APRIL 2015

FILE NO/S: MCS 55 of 2010

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

Catchwords:

Dangerous sexual offender - Review - Whether undue delay by authorities - Respondent having cognitive deficits - Slow progress - Whether remains a continuing danger

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Expressly decline to rescind the detention order

Category: B

Representation:

Counsel:

Applicant: Mr S O'Sullivan
Respondent: Ms M R Barone

Solicitors:

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

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

DPP v Pindan [No 2] [2012] WASC 234
DPP v Pindan [No 3] [2014] WASC 95

McKECHNIE J: This is the third annual review of a detention order made by Jenkins J on 28 June 2012: DPP v Pindan [No 2] [2012] WASC 234.
In DPP v Pindan [No 3] [2014] WASC 95 Corboy J expressly declined to rescind the detention order. Important issues as to the obligations of the State towards the respondent were raised and determined in this judgment. Those judgments set out the background and the reasons for the orders then made. At this hearing Ms Barone represented the Public Advocate on behalf of the respondent to make submissions in his best interest which was to press for the least restrictive option. She capably fulfilled this role in circumstances where the respondent has at best limited ability to understand the proceedings. She is therefore unable to make concessions.

A change in the applicant's circumstances

The respondent was transferred to the West Kimberley Regional Prison (WKRP) in January 2014 and placed in the orientation facility. A prisoner normally remains in orientation for two weeks. The respondent has remained in orientation because he cannot be relied on to perform personal tasks and house duties that would be required of him without prompting in a shared facility.
Dr Wynn Owen, the court appointed psychiatrist, interviewed the respondent on 11 March 2015 at WKRP and also had extensive discussions with the staff. He reported (exhibit 35):
Mr Pindan's day is currently very structured. He is woken in the morning and required to clean his cell and to shower. I am informed by Officers that unless prompted Mr Pindan does not comply with this or many other requirements. A review of daily prisoner activity reports over a 12 month period confirms this.
Mr Pindan has isolated himself from other inmates, only interacting when he wants cigarettes. These interactions have led to a number of inmates indicating to officers that this makes them uncomfortable; there is also the suggestion that Mr Pindan has been threatening towards younger inmates when seeking cigarettes.
I note that Officers report an incident with a young disabled prisoner whom Mr Pindan approached for cigarettes and allegedly threatened that he would rape him unless he was given cigarettes; the prisoner apparently climbed a fence to get away from Mr Pindan resulting in disciplinary action and transfer out of WKRP.
Mr Pindan has demonstrated difficulty managing his monies for telephone and cigarettes. To assist with making his cigarettes last longer (he has funds for one packet a week) he is given a number of cigarettes on a daily basis; these are usually smoked by midday, after this Mr Pindan seeks cigarettes from other inmates and scours the grounds and bins for stubs.
Mr Pindan's prison job is to walk to the kitchen prior to lunch time and collect the food trolley for his house then return with the trolley, he does this while escorted by a prison officer. (I note that in orientation inmates are not required to cook for themselves, this is, however, a requirement in the main prison). Mr Pindan has been compliant with this role although he often strays from the direct route back to orientation as he is seeking cigarettes. Mr Pindan's 'job' in the prison is at the simplest/most basic level, he has not yet demonstrated an ability to take on more complex task.
It has been noted that when near a female staff or visitors Mr Pindan becomes 'fixated' on the individual, staring and trying to move closer. When this is addressed by Officers Mr Pindan does return to task. In addition it has been noted by a female officer that on a number of occasions Mr Pindan has come unnecessarily close to her, including making physical contact and has also made sexually suggestive statements and gestures.
One officer at WKRP reported that Mr Pindan will often have pictures of alcohol on his cell wall as well as at times pictures of women.
During the interview:
Attitudes towards offending
Asked about past sexual offences Mr Pindan stated 'I don't know' in answer to all questions. When asked to say why he was in prison Mr Pindan's only answer was 'I was knocked back in 2011'. He did not acknowledge past sexual offences and when reminded of and questioned about specific past offences he smiled and but did not respond verbally.
Preparedness for Release and Future Plans
Mr Pindan stated at interview that he would like to go to Broome when he leaves. He reported that he did not want to go to Looma but did not explain this.
He stated that he could work but could/did not indicate what sort of work.
Asked about alcohol consumption in the future Mr Pindan indicated that he would like to have a drink, in fact stating 'I have one beer, maybe two … three, four' while grinning. He returned to this on at least 3 occasions, quite out of context, during the interview.
When asked directly Mr Pindan indicated that he did not link drinking alcohol with future risk of offending.
Dr Wynn Owen's psychiatric diagnosis is:
PSYCHIATRIC DIAGNOSIS (Diagnostic and Statistical Manual of Mental Disorders, 4th edition, Test revision, DSM-IV-TR)
Axis I       Clinical Disorders
               Alcohol dependence syndrome (in remission)
               Cannaabis Abuse
Possible organic psychosis, in remission.
Axis II      Personality Disorders
Global Cognitive Impairment (Borderline Intellectual Functioning); possibly of organic origin
Axis IIIGeneral Medical Conditions
Nil
Axis IVPsychosocial and Environmental Problems
Social isolation
Unemployment
Alcohol and drug use
Imprisonment
AXIS VGlobal Assessment of Functioning (past 6 months)
50 Moderate to severe impairment in functioning.
In summary:
Mr Pindan is a 47 year old Aboriginal man who has been assessed as having global cognitive deficit, in particular in relation to executive function, learning and impulse control. He has a history of alcohol abuse and dependence and cannabis abuse. On the basis of an assessment of historical factors (Static‑99) he presents a high risk of sexual reoffending (a 4 in 10 likelihood of reoffending within the 5 years of release); this risk is likely to be increased in the presence of intoxication (alcohol or cannabis).
Mr Pindan's level of intellectual functioning is such that he is unlikely to benefit from psychological interventions or to learn from programs intended to reduce his risk of sexual offending or to address his alcohol or other drug use. I note that Mr Pindan's communication was very slightly improved since he was interviewed in 2013, when he was almost exclusively monosyllabic.
Mr Pindan has now resided at WKRP for 14 months. During this time he has required regular and ongoing prompting in relation to routines such as to cell cleanliness and personal hygiene; he has remained quite isolated from fellow prisoners unless seeking tobacco/cigarettes and has demonstrated distraction when in the presence of females such that he appears at times to be 'fixated' and ceases the task at (eg transferring the food trolley) then requiring notable effort from officers to bring him back to task. Mr Pindan has made very slow progress towards self-care since arriving at WKRP however there are indications that a transition may be possible at some time in the future, it is likely that this will not only be a long process but will require supports over and above those currently available at WKRP. His perceived risk to females and possible younger males as well as the cleanliness and hygiene issues noted above are all factors to be taken into consideration with respect to his progress to self‑care in the main prison.
Mr Pindan's interest in women and his observed sexual behaviour such as masturbation are indicators of an ongoing libido.
It is clear that while Mr Pindan has no realistic plan for release he intends, on release, to drink alcohol and to drink regularly. Mr Pindan's interjection's about having a beer during interview and his liking of pictures of alcohol/alcohol containers on his cell wall indicated an ongoing interest of some salience.
I am of the opinion that Mr Pindan currently presents a high risk of serious sexual offending if released. If intoxicated Mr Pindan's risk of serious sexual offending is likely to be higher than that indicated by the Static-99, his reoffending risk is also increased by the presence of cognitive deficits including in relation to planning and impulse control
Dr Wynn Owen's report as to the respondent's behaviour is based on the incident reports and Offender Notes (exhibits 2 ‑ 25). I accept those as evidence of the respondent's behaviours.
In his evidence Dr Wynn Owen noted that the move to WKRP seemed to have some positives. There is a difference in the respondent's communication which was previously mono‑syllabic. He now interacted with longer sentences. He has been observed making calls to relatives and a prison officer has recounted that he has quite reasonable conversations. The respondent may be relaxing more and it may also be the approach of the prison officers.
Despite the positive indication, Dr Wynn Owen believes that the respondent would require 24/7 support in specific tailored accommodation.
He noted in respect of personal hygiene that on some occasions the respondent is quite able to demonstrate the appropriate standards and other times does not. Dr Wynn Owen is unable to speculate as to why.
He noted that the respondent is nicotine addicted and has poor impulse control and management but is able to manage his money for his phone to some degree. Dr Wynn Owen was of the view, which is also the view of Ms Kalders, the Assistant Commissioner, Adult Justice Services, that the respondent would have to function in the shared house facilities of the main prison before he could be considered suitable for supervision.
Although the improved communication and the more relaxed demeanour does not significantly reduce risks, they are positive.
In cross‑examination Dr Wynn Owen said that it was not clear if the respondent knows why he is in custody other than he got 'knocked back'. Dr Wynn Owen was not sure whether the respondent remembered him. He did not find the respondent had a strong link between his imprisonment and his sexual offending.
Although to an extent one can see a pattern of learned behaviour, day by day there is no pattern, however there is no structured observation base line. Although the Franklin Centre observations are a good start, a base line is necessary to measure improvement. This is extremely difficult to do in a prison setting but would be very valuable.
Dr Wynn Owen thought that the WKRP management plan (exhibit 34) was a generic plan rather than a tailored plan although aspects show that it is tailored to some extent. In Dr Wynn Owen's view a plan needs to have goals and timeframes, areas of responsibility, outcomes and consequences. The management plan fails to identify timeframes.
Dr Wynn Owen repeated his view that a mentor would be very useful.
Dr Wynn Owen's observations are confirmed in a psychological report by Dr Bannister (exhibit 36):
8.One of the most salient issues noted by Dr Yewers when she attended WKRP, was that staff there expressed concern about Mr Pindan's ability to integrate into mainstream housing given his limited functioning, poor hygiene, propensity to hoard food and the limited likelihood that he would complete his share of the work in the unit in which he resided. Dr Yewers subsequently relayed to WKRP staff that they were not required to move Mr Pindan to mainstream housing either imminently or prematurely. However, she emphasised that it was 'important to work toward specific goals and outcomes that might enhance the probability of moving him to mainstream and/or actively assessing his capacity to eventually transition to more independent living'.
9.In commenting on Mr Pindan's daily functioning, Dr Yewers observed that while it was evident that his overall functioning was low, his capacity for change and learning new behaviours was not immediately clear. She opined that Mr Pindan was not likely to ever be intrinsically motivated to adhere to expected hygiene and cleanliness standards and therefore any behavioural change would require extrinsic motivators and setting of external contingencies. Dr Yewers acknowledged in her report and directly to WKRP staff, that the nature of a prison environment (including limited resources and busy and changing staff) made it difficult to enact a behavioural change plan for Mr Pindan. Nevertheless it was important to test Mr Pindan's capacity to learn basic hygiene behaviours because this appeared to be a key obstacle in him transitioning to mainstream housing.
…
11.Overall, Dr Yewers recommended that because Mr Pindan's capacity to learn basic hygiene behaviours was a significant obstacle in him transitioning to mainstream housing, this should be assessed using a multidisciplinary team that included herself, WKRP staff, and someone with expertise in disabilities. The Derby based Local Area Co-ordinator from DSC, Ms Maggie McGuinness, reported to Dr Yewers that she had initiated processes that might facilitate in situ support from DSC. A subsequent follow up with Ms Jody Waite, Justice Co-ordinator DSC revealed that Ms Waite had circulated an internal expression of interest for a social trainer to work in consultation with Dr Yewers and a DSC psychologist. It was intended that this DSC support could assist to develop and implement a behaviour change plan and also to broadly educate staff who have regular contact with Mr Pindan in the area of general management of cognitive impairment, as well as its resultant impact on behaviour and learning.
12.In December 2014/January 2015, in part due to Dr Yewers' recommendation, a proposal was approved by the Assistant Commissioner Adult Community Corrections and Deputy Commissioner. This was aimed at approving DSC staff to travel to WKRP for the purposes of the assessment and initial implementation phase of WKRP staff training in intellectual disability issues, in order to ensure Mr Pindan received the optimal assistance in addressing his reintegration needs.
13.Also in December 2014, Dr Yewers contacted DSC and discussed the need for a 'champion' for Mr Pindan - ideally a WKRP staff member with seniority who was supportive and invested in the DSC intervention and who was willing to try alternative approved strategies and be given some latitude to do so. Two champions were suggested by the WKRP Superintendent.
14.Dr Yewers then met with DSC staff on 27/1/2015, impressing upon them the importance of confidentiality, in order to orient them to the issues relevant to Mr Pindan. This included providing an overview of the DSO Act (2006), specifics of Mr Pindan's case, details of WKRP, and the goals of the intervention. Attendees at this meeting were the DSC Emergency and Transitional Services Manager, Emergency and Transitional Service Local Area Coordinator, several Direct Care Workers, the DSC Justice Coordinator and DCS Coordinator Intellectual Disability Services.
15.Dr Yewers was subsequently informed by DSC staff that the planned date for their first attendance at WKRP was scheduled for mid-April.
The psychological report addressed future intervention issues (exhibit 36):
16.The treatment approach of individual psychological intervention remains contraindicated for Mr Pindan due to his organic brain disorder and significant cognitive deficits. As such, behavioural intervention/risk management is the most appropriate response to Mr Pindan and others like him.
17.As Dr Yewers noted in her DSO Update Report, it will be appropriate and necessary at some stage in the future to test Mr Pindan with less direct supervision within the prison environment. As she explained, limited supervision and self-management are characteristic of life in a mainstream environment, and therefore it will be practical to include observation of Mr Pindan's response and appropriateness of his behaviour under such circumstances. This should also form part of the decision making around progressing him to mainstream.
18.The key intervention for Mr Pindan will be delivered by DSC staff, in consultation with DCS staff, and consist of a dual approach. One component will be that DSC staff will provide general prison-wide training on people with intellectual disability and cognitive impairment. This training will coincide as closely as possible with the second proposed component, which is that DSC staff will conduct an assessment of Mr Pindan's needs and begin to engage in an appropriate intervention as necessary.
A Community Supervision Assessment was undertaken by Ms Alison Wesley (exhibit 37). It notes that on 23 March 2015 Dr Yewers advised that approval had been granted for a joint project with DSC and a team of five social trainers from DSC have been selected to undertake the assessment and intervention of the respondent with WKRP. Generic Disability Awareness training will be delivered to all staff and the following week Dr Yewers and two DSC social trainers will attend WKRP to observe and assess the respondent with the focus on his adaptive functioning/living skills.
Ms Wasley gave evidence by video link from Broome. She advised that the social trainers will be at the WKRP on 25 April 2015. Her evidence was complemented or enlarged by Ms Kalders.
The social trainers will first deliver general training to WKRP staff and then will observe the respondent and make subsequent visits, suggesting strategies and modes of approach.
The report details the progress of the respondent's interactions with others:
Since his transfer to WKRP, telephone records document Mr Pindan has kept in regular contact with his sister, aunts and uncles in Broome, Derby and the Looma Community. … attempts to make contact with his relatives on an almost daily basis, however at times his calls appear to be unanswered. … Mr Pindan has received four visits from family since his arrival, with the last visit occurring on 6 December 2014.
The Looma Community and the respondent's relatives have advised they do not want the responsibility of managing the respondent and their position remains unchanged from their letter written in April 2013.
Meetings were held with the respondent's relatives in Broome but they are unable to adequately accommodate the respondent and cope with his behaviours in the community.
Although Dr Wynn Owen recommended in 2013 that if the respondent was to be released he would be placed in a 24 hour residential supervision with various other conditions, there are no such services in the Kimberley region.
The report concludes (exhibit 37):
As per the previous CSA there are no services available to provide Mr Pindan 24/7 supported accommodation in the Kimberley region. The lack of community resources and family support, his insufficient improvement in self-management due to his organic brain disorder and significant cognitive deficits and his on-going risk to the community have continued to be significant barriers in providing a suitable release plan for Mr Pindan. Additional resources and support has been approved for DSC staff to provide the assessment and initial implementation phase of WKRP staff training in intellectual disability issues in April 2015, to assist Mr Pindan in addressing his reintegration needs. This Department continues to address Mr Pindan's needs in a co-ordinated interagency approach, and is working towards his transition to the main prison initially and in preparing him to reside in the community in the future. The Department will continue to make efforts to source appropriate accommodation for Mr Pindan and to encourage Mr Pindan's relatives to reconnect with him.

Ms Kalders was called at the request of the respondent and cross‑examined extensively by Ms Barone over the delays in coordinating a proper management plan and training staff through use of DSC personnel.
I was impressed by the evidence of Ms Kalders. Her answers to a searching cross‑examination were sensible. She adequately explained why the matter has progressed at the pace it has.
The State undoubtedly owes a duty to the respondent as outlined by Corboy J.
It now appears to have acknowledge that duty and is undertaking significant efforts to assisting the respondent. The court will be vigilant to ensure those efforts are maintained but it must be recognised that the respondent's needs have to be taken into account along with the State's obligation to others in prison or detention.
Ms Kalders' view as to the future is summarised in her evidence:
There is no specific timeline. The timeline is going to be dependant on what behaviours we can see Mr Pindan exhibiting, and then what kind of supports. Currently, Mr Pindan's risk is too great to currently manage in the community. We need to actually ensure that he can, you know – he can even understand some of the conditions of his order and abide by the level of instruction that a community based supervision order would entail. All of that's going to bear his ability to be able to do things much more – in a way that’s much more self-regulatory, that he's able to demonstrate a greater level of self care, a greater level of being able to follow instruction without having to be instructed every single moment to be able to abide by, you know, safety requirements. A community supervision order is a complex order with multiple conditions that we would need him to be able to understand and be managed by (ts 631).
In response to criticism as to delay she noted that DCS are implementing an integration plan as we speak. The move to WKRP has returned the respondent to his country. The Department has tried to facilitate visits with his family. The respondent appears more settled but progress is going to be very slow.
At the hearing Ms Barone drew attention in cross‑examination and in final submissions to delays in implementing some of Dr Wynn Owen's recommendations and the matters raised by Corboy J. She described progress as 'glacial'.
In the circumstance I do not consider the delays are so gross as to revisit the question as to the State's duties, the answer to which was decided by Corboy J.
There is no evidence that the respondent can move out of the orientation area after 15 months even if there had been prompt intervention. It is unknown whether he will ever be able to move into the main prison. Until he is able to demonstrate an ability to self‑care within the main prison the prospects of his suitability as to supervision within the community is clouded.
On the whole of the evidence I consider that since the last review DCS has now made positive and continuing efforts to manage the respondent who is as Ms Kalders describes, 'a very complex case and he's also extremely risky to the community'.

Conclusion

Due to the respondent's cognitive deficit he remains a dangerous sexual offender as defined in the Dangerous Sexual Offenders Act 2006 (WA). Nor is that ever likely to change. Unless placed into a full time closed psychiatric hospital there are no other facilities which could provide adequate protection.
Moreover, there is presently no realistic possibility that the community would be adequately protected if the respondent was subject to a supervision order. This is so even if there was accommodation made available to him. There is no point in arranging accommodation until at the least, the respondent is capable of a degree of independent living as evidenced by successful integration into the main WKRP. The consumption of alcohol is a significant triggering factor in the likelihood of his committing a serious sexual offence and I find the respondent intends to keep drinking if released.
Corboy J pointed out in Pindan [No 3]:
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 [202].
I find that the government has made reasonable efforts to discharge its responsibility over the period since the last review. Of course these efforts must be maintained. But for the present I expressly decline to rescind the detention order.