Director of Public Prosecutions (WA) v Pindan [No 5] - [2016] WASC 144

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- PINDAN [No 5] [2016] WASC 144

CORAM: FIANNACA J

HEARD: 18 APRIL 2016

DELIVERED : 18 APRIL 2016

PUBLISHED : 10 MAY 2016

FILE NO/S: MCS 55 of 2010

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

Catchwords:

Dangerous sexual offender - Annual review - Treatment and management progress - Adequate accommodation - Obligations under the Dangerous Sexual Offenders Act 2006 (WA)

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Decline to rescind the detention order

Category: B

Representation:

Counsel:

Applicant: Ms K Robinson
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):

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 Pindan [No 3] [2014] WASC 95
Director of Public Prosecutions (WA) v Pindan [No 4] [2015] WASC 124
FIANNACA J:

Summary

This is the third annual review of a continuing detention order made by Jenkins J on 28 June 2012 under the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act): Director of Public Prosecutions (WA) v Pindan [No 2] [2012] WASC 234. The application that resulted in that order, pursuant to s 17 of the DSO Act, had been the subject of a stay application which was refused by her Honour: Director of Public Prosecutions (WA) v Pindan [2012] WASC 13 (Pindan [No 1]). The basis of the stay application was that the respondent suffers a significant cognitive impairment which prevents him from being able to understand the nature of the proceedings or to provide instructions. Although that did not justify a stay of the proceedings, it was, and continues to be, a relevant consideration in the assessment of the respondent's risk of committing a serious sexual offence if he is not detained.
The respondent has a long history of sexual offences commencing in 1989. The offending has been of a most serious kind and has, at times, involved violence. He has been sentenced to terms of imprisonment for such offending on five occasions.
Because of his cognitive deficits, there has been no progress in the respondent's rehabilitation that would mitigate his risk of reoffending without external constraints. The respondent does not have the capacity to address his offending behaviour or the factors that have led to it. It has been determined that the most effective form of intervention, to facilitate his eventual release on a supervision order, is to improve the respondent's skills in day‑to‑day functioning.
The psychiatric and other evidence in the substantive hearing before Jenkins J supported the conclusion that the respondent was a serious danger to the community and that the community could not be adequately protected if he were released on a supervision order. Consequently, her Honour made the continuing detention order. The continuing detention must be reviewed annually: s 29 DSO Act.
At annual reviews in 2014[1] and 2015, there was evidence that steps were being taken towards reintegration of the respondent in the community under a supervision order, but it remained the case that the adequate protection of the community could not be achieved under such an order at that time, because there were no suitable arrangements available in terms of accommodation and the level of supervision the respondent would require. Accordingly, Corboy J and McKechnie J, respectively, declined to rescind the continuing detention order: Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95; Director of Public Prosecutions (WA) v Pindan [No 4] [2015] WASC 124.
[1] The first annual review commenced on 1 July 2013 and concluded on 4 December 2013, the length of the proceedings being due, in part, to legal arguments made on behalf of the respondent in respect of the obligations of government agencies under the DSO Act, and the consequences of any non‑compliance with those obligations. The decision on that annual review was delivered on 24 March 2014.
I conducted the third annual review on 18 April 2016, pursuant to an application brought by the applicant on 9 November 2015. There is no doubt that the respondent remains a serious danger to the community. That is not likely to change. The question is whether there has been a change in his circumstances such that his risk could now be adequately managed under a supervision order.
On the evidence presented at the hearing of the application, I concluded that no appropriate supervision order could be made at this point in time, and that the adequate protection of the community requires that the respondent continue to be detained for control, care or treatment.
Accordingly, at the conclusion of the hearing I made orders declining to rescind the continuing detention order and setting the date for the next annual review. I provided brief reasons, with full reasons to follow. Having arrived at the decision that I would decline to rescind the continuing detention order, I considered it appropriate to make the orders immediately so as not to extend unnecessarily the period before the respondent's next annual review.
These are the reasons for my decision.

The review proceedings

As I noted above, the respondent is not able to understand the nature of the proceedings or to provide instructions, because of his cognitive impairment. Ms Barone appeared on behalf of the respondent on instructions from the Public Advocate, who has been appointed as limited guardian of the respondent. Her obligation is to make submissions in the respondent's best interests, which is to argue for the least restrictive outcome. Accordingly, she was not in a position to make concessions as to the findings I am required to make. However, on the available evidence, Ms Barone did not submit that the respondent is no longer a serious danger to the community, for the purposes of the DSO Act, nor that the adequate protection of the community could be achieved by a supervision order at this stage.
I received into evidence a book of materials (exhibit 1), which included: records of the Department of Corrective Services (DCS) for the last twelve months concerning the respondent; a Disability Services Commission (DSC) report of Ms Waite, dated 4 April 2016; a psychiatric report of Dr Wynn Owen, the court appointed psychiatrist, dated 11 April 2016; a treatment progress report by DCS senior psychologist, Dr Yewers, dated 29 March 2016; and a community supervision assessment report by Senior Community Corrections Officer, Ms Wasley, dated 11 April 2016. The DCS records included incident reports, a management plan, and a report concerning attendances on the respondent in respect of health issues.
Dr Wynn Owen and Ms Waite also gave evidence at the hearing.
With the agreement of both counsel, I have also adopted the factual findings made in each of the previous proceedings; no issue was taken with any of those findings. Therefore, the findings and observations made by Jenkins J in Pindan [No 1] and Pindan [No 2], by Corboy J in Pindan [No 3] and by McKechnie J in Pindan [No 4] provide context for the conduct of the review.

The respondent's background and history of offending

The respondent's background and his history of sexual offending were outlined by Jenkins J in Pindan [No 1] [29] ‑ [49]. It is not necessary for me to repeat those facts. It is sufficient to note that the respondent is a 48 year old Aboriginal man who was born and raised in and about Fitzroy Crossing, and that his sexual offending has occurred in Fitzroy Crossing, Broome and Derby. He has been convicted of sexual offences on five occasions, the first being in April 1989 and the last being in May 2007. The offending was summarised by Jenkins J as follows in Pindan [No 2]:
Mr Pindan's previous sexual offending has been relatively indiscriminate. That is, his victims have ranged from a young girl to an elderly woman. He has broken into a house to commit an offence and he has taken other victims off the street. Mr Pindan is a relatively large man and at his age it is likely that he would be considerably stronger than any of his potential victims. His offending against the young victim resulted in serious physical injuries to her [43].
The young girl referred to was 5 years old, and her injuries amounted to grievous bodily harm. For that offending, the respondent was sentenced to 10 years' imprisonment in 1997. He committed his last sexual offence after he was released from that sentence. In May 2007, he was sentenced to 4 years' imprisonment for that offence. The original application under the DSO Act was made before he completed that sentence.
In Pindan [No 2], Jenkins J summed up the respondent's pattern of offending, which informed the risk he posed to the community, as follows:
Mr Pindan's pattern of offending is that he becomes intoxicated and seeks a vulnerable female victim (of any age) whom he will attempt to coerce into sexual intercourse. This is likely to involve significant physical force in order to effect his aim of completing sexual intercourse. If the victim is vulnerable, as in the case of a young child, Mr Pindan's offending may result in significant physical as well as psychological harm [30].

The previous annual reviews

The findings made by Corboy J in 2014 in respect of the respondent's risk of serious sexual offending are set out in Pindan [No 3] [194] ‑ [196].
Significantly, his Honour found, on the basis of the psychiatric and psychological evidence, that 'the respondent is unable to participate in any rehabilitation program or to take any step to address the causes of his offending … due to the level of his functioning' [195](b). The respondent had previously been considered to be an unsuitable candidate for psychological intervention, after a review of neuropsychological and psychiatric assessments. Dr Yewers, of the DCS Forensic Psychological Service (FPS), had concluded after interviewing the respondent in May 2013 that his presentation remained consistent with what had previously been reported, and that:
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 [174].
Corboy J went on to express the following conclusions:
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 [198] ‑ [199].
Part of the re‑integration plan was to move the respondent to the West Kimberley Regional Prison (WKRP). That occurred in January 2014.
Subsequently, in Pindan [No 4], McKechnie J noted (reflecting the position at 7 April 2015):
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 [3].
That remains the case.
As in the present review, Dr Wynn Owen was the court appointed psychiatrist for the 2015 review. He was of the opinion that the respondent would have to function in the shared house facilities of the main prison before he could be considered suitable for supervision. That was also the view of the Assistant Commissioner, Adult Justice Services, Ms Kalders (Pindan [No 4] [12]).
A management plan had been implemented (referred to as the 'WKRP management plan'). Dr Wynn Owen considered the plan to be generic, rather than one tailored for the respondent (Pindan [No 4] [16]). However, a joint project had been devised between DCS and the DSC involving a team of five social trainers who, with WKRP, were to undertake assessment of the respondent and implement appropriate intervention (Pindan [No 4] [20]). The plan was for social trainers to deliver general training to WKRP staff and then to observe the respondent and make subsequent visits, suggesting strategies and modes of approach (Pindan [No 4] [22]).
McKechnie J said, of the steps that had been taken:
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' [37].
Concluding that there was no realistic possibility that the community would be adequately protected if the respondent was subject to a supervision order, his Honour commented that the efforts that had been made by the government to manage the respondent must be maintained [41].

The current review

The respondent remains a serious danger to the community

The issues relevant to determining the respondent's risk of serious sexual offending include: his understanding of his previous offending and risk factors; his capacity to plan and take measures to avoid risk scenarios; the presence of libido and a sexual interest in women; and his attitude to alcohol.
Dr Wynn Owen interviewed the respondent at WKRP on 11 March 2016. He also had discussions with WKRP staff, Dr Yewers and Ms Wasley, and reviewed DCS records in respect of the respondent, including the Individual Management Plan, notes made by WKRP staff concerning the respondent's activities and behaviour from 7 April 2015 to 16 February 2016 and minutes of interagency meetings concerning management of the respondent.
During his interview with Dr Wynn Owen, the respondent had no understanding of why he was detained under the DSO Act. This is consistent with previous assessments. Dr Wynn Owen said the respondent gave no response when asked directly about risk of reoffending, risk situations and plans to mitigate risk.
In terms of his sexual thinking and behaviour, the respondent acknowledged to Dr Wynn Owen that he enjoyed seeing women in prison and admitted (albeit in answer to 'very closed questions') that he wanted to have sexual relations with women (exhibit 1.10, page 6; ts 664). He also acknowledged engaging in regular masturbation.
In her community supervision assessment report, Ms Wasley noted that, since the last annual review, the respondent has demonstrated behaviour which is of concern, including 'sexualised behaviour, masturbation in front of others, fixation with females and predatory behaviour towards female staff' (exhibit 1.12, page 2). Dr Wynn Owen noted, from discussions with WKRP staff:
Mr Pindan's previously reported behaviour when females were near has continued consistently over the last 12 months, he watches women closely, follows them if he can (exhibit 1.10, page 5).
The DCS records include a report concerning an incident on 17 April 2015, when the respondent was observed to reach out 'as if to grab' a female officer, although he only made contact with her bag. When questioned about the incident, the respondent initially denied it, but eventually acknowledged he had reached out to the officer. He gave no explanation for doing so. In light of his continuing sexual interest in women, both as admitted by him and observed by others, the compelling inference is that the incident with the officer was an instance of the respondent acting out impulsively on that sexual interest.
Of course, that incident and other sexualised and predatory behaviour described by prison staff, have occurred in the restricted and highly regulated environs of a prison. There is a natural expectation, it seems to me, that the risk of the respondent acting impulsively to satisfy his sexual drive, without regard for norms or the rights of others, would be greater in the absence of such restrictions and regulation in the community.
Intoxication with alcohol has previously been identified as a significant risk factor for the respondent. When asked by Dr Wynn Owen about use of alcohol if released, the respondent 'smiled broadly and indicated that he would like to have a beer' (exhibit 1.10, page 6). When Ms Wasley visited WKRP and interviewed the respondent on 5 November 2015, she became aware he had recently pinned up pictures of alcohol on his cell wall. When she asked him about them, he smiled and said he had obtained them from a magazine. I am satisfied, on the basis of his admissions and behaviour, that the respondent intends to return to drinking alcohol if released.
Dr Wynn Owen's psychiatric diagnosis of the respondent (based on the Diagnostic and Statistical Manual of Mental Disorders, 5th edition, DSM‑V) remains the same as in previous years. The clinical disorders are: alcohol dependence syndrome (in remission); cannabis abuse; and possible organic psychosis, in remission. He has also diagnosed a personality disorder, namely Global Cognitive Impairment (Borderline Intellectual Functioning), possibly of organic origin.
Dr Wynn Owen's reference to a 'possible organic psychosis, in remission' is a differential diagnosis (ts 665). Although the respondent was put on antipsychotic medication when he was in the Frankland Centre at Graylands Hospital in 2011, Dr Wynn Owen thinks this was because he was exhibiting what was thought at that time to be psychotic behaviour, which appears to have been associated with the respondent's communication style (which was monosyllabic and often just grunting) and some inappropriate smiling. There appears to have been no delusional or hallucinatory content, and Dr Wynn Owen has not seen any symptoms of psychosis during his interviews with the respondent over the last few years (ts 665). In his opinion, the respondent does not have a mental illness.
In summary, Dr Wynn Owen is of the view that here has been no change in the respondent's mental state. However, he noted that the respondent appears to demonstrate involuntary chewing and facial movements suggestive of movement disorder secondary to antipsychotic medication use (tardive dyskinesia), which he considers requires ongoing assessment and monitoring including a review of his current medication. I will return to that matter later.
Utilising the Static‑99 assessment instrument, which assesses risk on the basis of historical factors, the respondent presents a high risk of sexual reoffending, which is likely to be increased in the presence of intoxication (alcohol or cannabis).
On the basis of the evidence at the time of the review, Dr Wynn Owen's opinion on the issue of risk may be summarised as follows. The respondent continues to present a high risk of serious sexual offending, if released. The risk is related to the presence of gross cognitive deficits with associated impulsivity, limited planning skills, poor learning capacity and limited understanding of the effect of his actions on others. He has demonstrated behaviour over the last 12 months that indicates an ongoing libido and sexual interest in women. This is confirmed by his admissions to Dr Wynn Owen. The respondent's risk of offending will be increased if he is intoxicated, as this will increase impulsivity and further limit already minimal capacity to manage basic drives such as the sexual drive. He has a history of alcohol abuse and dependence and cannabis abuse. He has shown a continuing desire to drink alcohol. There is a real risk that he will return to drinking and become intoxicated if released. This is particularly so because of the respondent's impulsivity, which causes him to act on the 'the primacy of his drives', which would include the desire to drink alcohol (ts 671).

Because of his cognitive deficits, the respondent has no realistic plans for release, and demonstrates no understanding of risk scenarios or risk avoidance. Dr Wynn Owen noted that the respondent's cognitive functioning may even be deteriorating, 'such that the primacy of the drives and the impulsivity … potentially will override an ability not to undertake an offending act' (ts 671).
Dr Wynn Owen is of the view that 'things are unlikely to change in the short‑term' unless there is a significant physiological or cognitive deterioration in the respondent, 'such that he wasn't able to physically undertake an offensive act or didn't have any of the drives or motivations required' (ts 671).

Treatment and management since the last annual review

As was explained in previous decisions, the respondent is not amenable to psychological treatment to address his risk of reoffending. The position was explained by Dr Yewers in her report for the present review as follows (exhibit 1.11):
Due to Mr Pindan's cognitive impairment, he does not have capacity to address his offending behaviour or related criminogenic factors. This position is not new and he has been repeatedly assessed by FPS (formerly DSO Psychology Team) as being unsuitable for psychological intervention.
It remains my opinion that Mr Pindan's adaptive functioning should be the target of continued intervention. This allows Mr Pindan's ability (and motivation) to learn new behaviours and comply with prison standards to be tested and possibly enhanced. Importantly, improvements in his daily living skills may also lead to greater independence and exposure to other opportunities within the WKRP system. DSC Direct Care Workers have the requisite expertise and experience to undertake such assessment and intervention with Mr Pindan [19] ‑ [20].
That had been the focus before the last annual review.
The management plan implemented jointly between the DCS and DSC since then is described in detail in Ms Waite's report (exhibit 1.9). A copy of the plan and notes made by WKRP staff relevant to its implementation are contained in exhibit 1. The documents reveal a thoughtful, empirically based programme to address the respondent's specific behavioural issues and functional needs. Significantly, the plan provides for observations to be recorded in a systematic way that enables better monitoring of the efficacy of measures that have been taken, reflected in any changes in the respondent's behaviour and functioning. Unfortunately, there has not been any discernible change.
It is sufficient for present purposes to adopt the very helpful summary of the programme and the observations that have been made, contained in Dr Wynn Owen's report (exhibit 1.10):
With assistance from Disability Services Commission staff who visited the West Kimberley Regional Prison a behavioural program has been developed for Mr Pindan which provides a daily guide to Prison Officers in relation to Mr Pindan's Monday to Friday prison routine, with a 'daily comments checklist' to enable consistent observations on behaviour which … enable comparison and can be used to evaluate progress. The Plan includes a list of behaviours to be encouraged, consistent use of positive reinforcement of desired behaviours and a 'Behaviour Management' approach to enable a consistent response to non-compliance with routine and or inappropriate behaviour.
The behavioural program has been in place since April 2015.
Review of Mr Pindan's 'Offender Notes' from 21 April 2015 to 14 Feb 2016 demonstrate improved recording of Mr Pindan's daily behaviours and interactions and consistent application of the management plan by Prison Officers. There is no discernible difference in Mr Pindan's compliance with prison routine or his attention to cell, unit or personal hygiene over this time when compared to the reports reviewed at WKRP in 2015. Mr Pindan demonstrates that he is able to adhere to prison requirements however his adherence is highly inconsistent.
Mr Pindan remains in the orientation area of WKRP with no current prospect of moving to mainstream.
Dr Wynn Owen explained in evidence that the reference to inconsistency in the respondent's adherence to prison requirements was based on his review of the report he had received about the programme, the notes made by prison staff and interviews with prison staff (ts 661). He said that while it is difficult to know the reason for the inconsistency, there would be a number of factors at play, including the respondent's problem with global cognition, difficulty with learning, difficulty with planning, lack of understanding of consequences and acting on impulse (ts 661 ‑ 662). He may have a general awareness of what is required of him, for instance in respect of his hygiene, but that general awareness will be overtaken by some impulse to do something else, and he will want to satisfy that impulse immediately (ts 662). Dr Wynn Owen is of the view that this aspect of the respondent's behaviour may be improved by a strategy that has already been implemented, namely a much more consistent response of prison staff, which is timely and appropriate. It is an approach whereby negative behaviours are responded to immediately, in a consistent and proportionate way, and positive behaviours are reinforced (ts 662). However, as I noted earlier, there is the prospect that if the respondent's cognitive functioning deteriorates, his propensity to act on impulse may increase.
While Dr Wynn Owen's analysis might suggest that the respondent's failure to comply with instructions may not be wilful, and that he may not appreciate he is doing the wrong thing, I note that when Ms Wasley interviewed the respondent at WKRP on 19 August 2015, she asked him if he follows the rules and instructions from prison officers, he shook his head and giggled (exhibit 1.12, page 4). Of course, even if that response suggests a degree of wilfulness and appreciation that he is doing the wrong thing (at least sometimes), it does not necessarily detract from Dr Wynn Owen's proposition that the respondent acts on impulse or that he lacks a proper understanding of consequences. In any event, on the basis of both the empirical evidence and his response to Ms Wasley, one could have no confidence that the respondent would comply with lawful instructions if he was under a supervision order.

Dr Wynn Owen's recommendations for continuing risk management

In his report, Dr Wynn Owen recommended two things for risk management. The first was a continuation of the behavioural management plan that had been implemented between DCS and DSC. The second was 'further consideration of provision of additional dedicated support/resources at WKRP to work with Mr Pindan to achieve transition from orientation maxi to the main prison'. In evidence, Dr Wynn Owen explained:
[W]hilst there has been some good documentation and a certain standardisation which is excellent, from reviewing the reports over this year versus the previous year, there seems to be little change in the pattern of compliance and non-compliance with the various expectations of the prison. So I think the interactions have improved dramatically, the recording is better, but the actual pattern has not changed. The question has to be asked, will that pattern actually change, or is, in fact, Mr Pindan at the best that he will be, in terms of his ability to self-care. And should one consider that this is the end point and, in fact, that any support for him should be structured around this level of behaviour. Or, if there is a genuine interest in him potentially moving into a self-care environment, then, because I don't believe the prison officers have had quite enough time - they have been managing their other prisoners as well, so they have been given some degree of exposure and training. They have been involved in the development of the disability services plan, but there's no additional resource at the moment at the West Kimberley Regional Prison. But if that plan were to be really tried, somebody with additional time, at least in a weekday, somebody like a social trainer, which is a Disability Services employee who works directly with individuals with disabilities to assist them in a range of areas which include interpersonal interaction, pro‑social behaviours, self-care, self-management. If somebody could actually spend that time with him, there may be an opportunity to test whether he can improve. Now, the question whether he can improve to meet those requirements is not one I can answer, and looking at what he has been able to learn or not and how he has changed over the previous two and half to three years, it's a very limited opportunity. But if this were to be tested to the full, that's what I would recommend (ts 667).
It can be seen immediately that the recommendation to provide the 'dedicated support/resource' of a social trainer was somewhat qualified. It was dependent on a judgment having to be made whether the 'very limited opportunity' that the respondent has to progress to self-care should be 'tested to the full'. This was explained by Dr Wynn Owen subsequently as follows:
[I]n part I put that suggestion because of the current trajectory which was try and move from where he is into self-care. So if we want him to achieve self-care, then my thinking was, well, let's give him that opportunity, the best opportunity he can, to demonstrate that he can or can't do it. But if you don't want him to move to self-care, that's a whole different ballgame and it would be about … what are his accommodation requirements today (ts 684).
On that understanding, Dr Wynn Owen said that he had in mind a social trainer who would work at least office hours, five days a week over a period of 12 months, although he would be guided by experts from DSC on the best use of time and the duration of such a strategy. Apart from the expertise that a social trainer would bring to the management of the respondent, Dr Wynn Owen considered that the continuity that would be provided by a dedicated social trainer would be beneficial to the respondent. Further, he considered that the prison officers who have been dealing with the respondent still represent what is essentially a punitive system, whereas the mindset of somebody coming from outside would be more therapeutic.
Dr Wynn Owen cautioned that careful consideration would need to be given to the timeframe and the outcome:
So, as I mentioned, this may be as good as Mr Pindan gets, in terms of what he can and can't manage. We may have to just acknowledge that. And so this would be time-limited, the outcome being either there is improvement or there isn't. But if there isn't, it wouldn't be then [sic] put more resources into it (ts 668).
The purpose of the strategy would be to ascertain whether the respondent is able to move from his current prison environment into the mainstream prison, and the outcome would be relevant to determining what sort of accommodation would be required for the respondent if he were to be released into the community in the longer term. As Dr Wynn Owen put it:
I wouldn't want to completely close off the opportunity to improve outside of what we might expect, but I believe this is more about establishing just what level of care might be required. But some level of supervised care, I believe, will always be required (ts 669).
The qualification Dr Wynn Owen placed on his recommendation was emphasised in further evidence as follows:
I think it's something that needs to be under strong consideration, but I would prefer it was done by a panel of expertise [sic], rather than one psychiatrist sat in the court saying this has got to happen.
…
But looking at his ability to learn over time, the change in the patterns of his behaviour from the metropolitan mainstream prisons through to what has happened at the West Kimberley, where I think he has the best opportunity to demonstrate an ability to comply with that relatively straightforward regime in the prison, but has shown that he is not able to change, I think that a decision needs to be made as to whether one would invest in the social trainer model. But it would be purely around the level of accommodation provided (ts 670).
In cross‑examination, while maintaining there may be some benefit in the proposed strategy, Dr Wynn Owen accepted that it may not be necessary for the respondent to move to self‑care before steps are taken towards planning for suitable accommodation in the community. He said:
I mean I mentioned, when asked about the social training, that could be a one-year intervention that may lead somewhere in terms of an improvement in his capability to look after himself. And I think there are potentially some benefits there, whatever the accommodation endpoint is, because improvements in personal hygiene and so on will just put him at less risk. But a case could be made that we have reached that point and that accommodation needs should be based on his current function and behaviour, which would suggest that that accommodation, in the longer term, is probably 24/7 supervised accommodation, wherever it is (ts 683).
The question of whether progression to self‑care is necessary will depend on what can be provided by way of alternative accommodation (ts 684), although Dr Wynn Owen accepted that what might be expected of the respondent in the way of self‑care in prison may be different from what would be expected in accommodation under supervision in the community (ts 685).
Ultimately, while DCS and DSC will need to consider Dr Wynn Owen's recommendation (and Ms Waite indicated it would be considered) , it is far from clear from his evidence that the investment of resources in providing a social trainer for the intensive training and management he had in mind would be prudent. As Dr Wynn Owen said, it is a judgment that will need to be made by a panel of experts in disability services.

What kind of accommodation is required for adequate protection of the community?

What is clear from Dr Wynn Owen's evidence is that the type of accommodation that would be necessary to provide adequate protection of the community will require supervision of the respondent for 24 hours each day on a long term basis. In context, this means confinement within the accommodation and being escorted on any excursions for which he may be given permission. The risk would be too high if the respondent were given independence in the community. Dr Wynn Owen referred to the fact that, even within WKRP, when the respondent 'has gone into mainstream' he sometimes has eluded prison officers when given latitude to complete work tasks without supervision. For instance he has gone to the fence of the women's area, acting on impulse.
Dr Wynn Owen considered that the respondent's current circumstances illuminate what would be required of accommodation for it to be suitable:
I think one could take the view that the accommodation that he is currently in gives us a set of needs and requirements and behavioural management sort of issues, that one could say this is what would require to be dealt with in the accommodation today (ts 684).
He identified the Bennett Brook Disability Justice Centre in Lockridge as being an appropriate model:
That sort of model for people of Mr Pindan's type, I think would probably be the ideal, shared accommodation but with separate rooms, with the ability to develop skills, but also acknowledging perhaps that some people will be staying there in the longer term, but with the staff onsite at all times and a degree of containment.
I don't just mean a house with a garden. I actually think it probably needs to be fenced and … managed in that way. So I think … it's taking that observation area of the West Kimberley Prison, making it smaller … [w]hich is very similar to my understanding of the Lockridge disability facility (ts 686 ‑ 687). (emphasis added)
He subsequently clarified the need for containment further:
So I believe that there would need to be an accessible outdoor area, but that Mr Pindan wouldn't be able to, of his own accord, leave that outdoor area. Which I think means that it would need some form of fencing. My understanding is that the Lockridge facility is fenced and gated … so it would be very similar to the area he is in, the West Kimberley Regional Prison. So it wouldn't be just a domestic house or hostel (ts 689). (emphasis added)
The Bennett Brook Disability Justice Centre (the DJC) is a DSC declared place under the Declared Places (Mentally Impaired Accused) Act 2015 (WA). It is a place where persons who have been found to be mentally impaired accused under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (MIA Act), and in respect of whom a custody order has been made, may be detained pursuant to s 24 of the MIA Act. Such a person can be detained at the Centre only if they have a disability as defined in s 3 of the Disability Services Act 1993 (WA) that is not predominantly due to mental illness. Such a disability would include the cognitive deficits suffered by the respondent. The Mentally Impaired Accused Review Board determines (subject to the consent of the responsible Minister) whether a person is to be detained at a declared place. It must have regard to 'the degree of risk that the accused's detention in the declared place appears to present to the personal safety of people in the community or of any individual in the community' (s 24(5A) MIA Act).
I have outlined the legislative framework for the DJC because Dr Wynn Owen considered it a suitable model, so it is necessary to appreciate the criteria that must be satisfied for that model. However, the respondent does not qualify as he is not a mentally impaired accused in respect of whom a custody order has been made under the MIA Act. Dr Wynn Owen said in cross-examination that the respondent would likely meet the criteria for a mentally impaired accused if he had to be assessed in the context of fitness to plead or stand trial for a criminal charge, but no occasion arises for such an assessment.
Nevertheless, in order to better understand the way in which the DJC operates, I received evidence from Ms Waite about it. She said the DJC is a 10 bed facility staffed by Disability Justice Officers employed by the DSC. Although it is a place of custody, it is a rehabilitative, therapeutic model, and residents have access to behaviour support clinicians. Services are individualised for each resident to meet the needs of that person. A resident will be linked with service providers in the community and the Board may approve leave of absence for the resident to access the community with the support of DJC staff or from disability support organisations if the person has been allocated funding (ts 710). Ms Waite did not have information about the procedures that are in place to ensure residents do not leave, but she said the DSC operates within a 'positive behaviour framework' (ts 712).
It is not clear whether this would accord entirely with the model Dr Wynn Owen had in mind. Asked by me whether some form of coercion would be appropriate to ensure the respondent attended to essential tasks such as his own hygiene and keeping his room tidy, Dr Wynn Owen said:
I think there will be certain standards expected wherever he is, because the impact of - and this is how the prison officers have seen it in the West Kimberley, that he can, through his own lack of self-care, put others at risk … So there will be an absolute requirement to manage that, so there will have to be a set of, albeit structured, responses to negative behaviours which would be seen as coercive (ts 691).
In any event, it is obvious that in considering what would be suitable accommodation, if the respondent were to be released from prison, it is necessary to address not only the physical features of any proposed premises, but also what resources can be made available to ensure the respondent remains within the property and is subject to control when necessary. Dr Wynn Owen confirmed that the respondent would require carers to be available 24 hours a day, seven days a week. However, those carers would not provide the security required to confine the respondent within the accommodation or to control his behaviour, should that become necessary. That was confirmed by Ms Waite (from DSC), who emphasised that DSC provides services on a consent basis. If the respondent tried to leave or did not follow carers' instructions, there is nothing the carers would do to restrict him or make him comply (apart from trying to reinforce positive behaviour), although there might be a safety plan in place to protect others and perhaps to inform police if the respondent left the premises (ts 698, 706, 712). Security would need to be provided by DCS.

Ms Waite said in evidence that DSC would be happy to meet with DCS to discuss how they could work in conjunction so that DSC provided care services and DCS provided the 'control' services (ts 706). Funding would need to be obtained for both, and DSC will take steps towards obtaining an allocation of funding for the respondent, although ordinarily funding would not be available unless it was clear the funds would be used; in other words, it would need to be apparent that the respondent would be released. Ms Waite appreciated, in cross‑examination, that this presents a conundrum, in that the respondent may never be released if funding is not available. She said DSC would meet with the respondent to start the application process. The timeframe for the process will depend on the respondent's level of engagement (whether personally or through his guardian, if the Public Advocate were to be given further powers).
Returning then to the kind of accommodation Dr Wynn Owen considered to be appropriate, if the respondent were to be released from prison, ideally it would be 'shared accommodation, but with separate rooms, with the ability to develop skills, but also acknowledging perhaps that some people will be staying there in the longer term, but with … staff onsite at all times and a degree of containment' (ts 686). The respondent should have the opportunity to do some form of work, as he does in WKRP.
The reason that shared accommodation would be the preferable was explained by Dr Wynn Owen as follows:
He doesn't necessarily interact that much with fellow prisoners, except when he wants cigarettes or when - it seems when new prisoners, particularly younger prisoners arrive, and he talks to them. But he does interact a lot with prison officers, and I believe that there is - there's a social side to him that suggests that being in accommodation on his own just with carers is not ideal.
It might actually benefit him and benefit his ability to improve in terms of his social interaction and pro-social behaviour, to be in shared accommodation, if that were possible.
I think culturally as well, it's probably better for him as a - sort of a man from a community, originally, with a lot of those built-in cultural values that there might be - it might be deemed punishment to be isolated (ts 687).
Finally, Dr Wynn Owen was of the view that, ideally, the accommodation should be in the Kimberley, because the respondent seems to prefer that area. Also, although the visits may be occasional, he is visited by relatives where he is at present (ts 687). While the respondent has expressed a desire to live in Broome, if he were released, he has told both Dr Wynn Owen and Ms Wasley that he wants to stay in Derby while he is in custody (ts 682; exhibit 1.12, pages 4 ‑ 5). Ms Wasley has also been told by a relative of the respondent that his family want him to remain in the Kimberley 'with family' (exhibit 1.12, page 6). However, Ms Wasley was told that the respondent's relatives are unable to accommodate him or cope with his complex behaviours in the community (exhibit 1.12, page 6).
There is no facility like the DJC in the Kimberley, and it must be acknowledged that the establishment of accommodation in that region with care and security arrangements of the kind suggested by Dr Wynn Owen would be a significant undertaking. Unless such a place also accommodated other residents requiring disability services, there would be a risk that a move by the respondent to such accommodation (which would be another form of custody) would be counterproductive if he came to regard the isolation as punishment.

A health issue to be considered in further management of the respondent

As the respondent's detention is to continue, there is a health issue that will need to be investigated over the next 12 months.
As I noted earlier, Dr Wynn Owen thinks that the antipsychotic medication, which the respondent still receives by intramuscular injection, may be causing the respondent's orofacial movements and other behaviour, such as biting his clothing, that have been observed over the last few years (ts 666). The respondent exhibited some of these movements during the hearing of the present review. Dr Wynn Owen is of the view that a specialist in movement disorders associated with antipsychotic medication should review the respondent, to determine whether he is suffering from such a disorder and whether his medication should be changed to prevent the orofacial movements becoming such a problem as to interfere with eating and other activities (ts 666). Dr Wynn Owen pointed out that involuntary facial movements can also be something that makes social interaction difficult, because people will think the respondent was a bit strange (ts 666).
Dr Wynn Owen had referred to this issue previously. It is to be expected that his concerns will be investigated as soon as possible. It may be that the respondent's facial movements are not related to the medication, but Dr Wynn Owen has provided a reasonable foundation for investigations to be conducted. The concerns should not be ignored.

Conclusion

The fact that the respondent is a dangerous sexual offender is not likely to change, as has been recognised at previous hearings. Confirming the views expressed by Dr Yewers in her report, Dr Wynn Owen said in the present review hearing:
I don't see that we can make any therapeutic intervention that is going to change his level of risk. I think that there has been a stability in his cognitive function that has demonstrated he is not able to learn easily. He isn't able to understand the concepts of risk or risk scenario … of risk avoidance, doesn't see himself as a risk, doesn't understand the links between risk and alcohol or risk and other behaviours … [I]t won't happen, so his risk will remain as a result of … his past behaviours (ts 670).
At the last two annual reviews, conducted by Corboy J and McKechnie J respectively, it was considered that before the respondent could be released from detention, with adequate protection of the community, it was necessary for the relevant government agencies to develop and implement an integration plan. Both Corboy J in 2014 and McKechnie J in 2015 considered that reasonable efforts had been made by those agencies to discharge that responsibility, but more was required. I am satisfied that the relevant agencies have continued to make reasonable efforts to discharge the responsibility, by the implementation of a coordinated plan.
At the last annual review, McKechnie J said:
It is unknown whether [the respondent] 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 [36].
His Honour further stated:
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 [39].
The evidence in the present review suggests that the respondent may have reached the limit of what he is going to achieve in that regard. Dr Wynn Owen has suggested a possible strategy, using a social trainer in what would be a very intensive programme of individual training and monitoring of the respondent for a period of 12 months, to determine whether any improvement is possible in his functioning. That would inform the level of care the respondent would require if released from prison, which would affect the kind of accommodation that would be appropriate. Dr Wynn Owen has acknowledged that consideration will need to be given to whether the social trainer model would be an appropriate investment, given the respondent's lack of development so far.
In any event, Dr Wynn Owen is of the view that further progress to self‑care may not be necessary, if accommodation is available that will provide the necessary level of constraints. In his opinion, the stage has probably been reached where steps should be taken to explore accommodation options outside the prison that will cater for his limited capacity for self care. I accept that to be the case. However, accommodation of the kind that Dr Wynn Owen would regard as suitable would need to provide a level of confinement and supervision that would be akin to the respondent being in custody, but without the regimentation of a prison. No suitable facility is currently available. Nor has any accommodation been identified in the community that would provide the necessary level of confinement and care required for the respondent. The prospect of such an option becoming available would appear to be small. This is particularly so, as both the respondent and his family have expressed a desire that he remain in the Kimberley.
The situation remains as expressed by Corboy J in Pindan [No 3]. Having accepted that the risk of the respondent committing a serious sexual offence was dependent on his placement and level of monitoring and supervision, his Honour said:
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 [197].
His Honour went on to make a final comment about the government's responsibility towards the respondent. He noted that, because of the respondent's cognitive impairment, his prospects of being returned to the community, without posing an unacceptable risk of reoffending sexually, are entirely dependent on DCS and other government agencies formulating and implementing a plan that will facilitate such a return [202]. His Honour concluded:
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].
In Pindan [No 4], McKechnie J reiterated that 'the State undoubtedly owes a duty to the respondent as outlined by Corboy J', and noted that the State appeared to have acknowledged that duty and was undertaking significant efforts to assist the respondent [30] ‑ [31]. However, his Honour recognised a qualification to that responsibility that flows from practical reality:
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 [31].
I respectfully agree.
Further, as was recognised by Corboy J in Pindan [No 3], the reasonableness and practicality of supervision measures that would need to be implemented to ensure the adequate protection of the community will be relevant considerations in determining the appropriateness of release on a supervision order.
Accordingly, while the court continues to expect that efforts will be maintained to assist the respondent to be returned to the community eventually, in circumstances in which the community can be adequately protected, it acknowledges the practical realities that may affect when and how that goal can be attained, including the government's responsibilities to others in prison or detention and the resourcing and geographical factors that I have referred to earlier. Nevertheless, on the basis of the evidence in the present review, it would be expected that between now and the next review:
1.Consideration will be given by DCS and DSC to the provision of a social trainer to deliver an intensive programme of assistance to the respondent while he remains in WKRP, as suggested by Dr Wynn Owen, and that those agencies will seek the advice of a panel of suitably qualified experts on the viability of such a programme, and the content and mode of delivery, if viable.
2.DCS, in conjunction with DSC, will explore options for the accommodation of the respondent in circumstances that would provide the necessary level of confinement and care, if the respondent were to be released on a supervision order, as described by Dr Wynn Owen.
3.Arrangements will be made for the respondent to be reviewed by a movement disorder specialist, as suggested by Dr Wynn Owen, to explore whether the respondent's current antipsychotic medication is causing him to have involuntary facial movements and, if so, whether his medication should be changed.
Of course, the paramount consideration remains the adequate protection of the community, and, at this stage, that requires that Mr Pindan continue to be detained for control, care and treatment.
Accordingly I decline to rescind the continuing detention order made by Jenkins J on 28 June 2012.