Director of Public Prosecutions (WA) v Pindan [No 6]

[2018] WASC 20

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- PINDAN [No 6] [2018] WASC 20

CORAM:   CORBOY J

HEARD:   18 APRIL 2017

DELIVERED          :   18 APRIL 2017

PUBLISHED           :  24 JANUARY 2018

FILE NO/S:   MCS 55 of 2010

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

ADRIAN PINDAN
Respondent

Catchwords:

Dangerous sexual offender - Fifth review of continuing detention order - Whether respondent a serious danger to the community - Whether continuing detention order should be affirmed

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 33

Result:

Continuing detention order affirmed

Category:    B

Representation:

Counsel:

Applicant:     Mr M T Trowell QC

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

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

CORBOY J: 

Summary

1. The respondent has a history of sexual offending. In June 2012 he was found by Jenkins J to be a serious danger to the community pursuant to s 7 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). Her Honour made a continuing detention order under s 17(1) (the CDO): Director of Public Prosecutions (WA) v Pindan [No 2] [2012] WASC 234.

2. I conducted the fifth review of the CDO.  I declined to rescind the CDO at the completion of the review.

3. Some issues were raised during the review concerning the respondent's management in custody.  I indicated to the parties that further submissions on those issues could be filed notwithstanding that I had determined the CDO should not be rescinded.  However, the parties did not file any further submissions and accordingly, I now provide my reasons for the order that was made at the annual review.

4. The respondent suffers from a significant cognitive impairment.  As a result, he was unable to provide instructions to his counsel, Ms Barone.  Accordingly, Ms Barone appeared on instructions from the Public Advocate (as she has done in previous reviews) and conducted his case on the basis that his best interests were served by pursuing whatever statutory options were available for securing or facilitating his release to the community.

The respondent's background

1. The respondent's history of offending and related matters were summarised by Jenkins J in Director of Public Prosecutions (WA) v Pindan [2012] WASC 13 (Pindan [No 1]) at [29] and following. Her Honour's findings have not been challenged in subsequent reviews of the CDO and were adopted by me in conducting the second review (Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95) (Pindan [No 3]); McKechnie J for the purpose of the third review (Director of Public Prosecutions (WA) v Pindan [No 4] [2015] WASC 124) (Pindan [No 4]); and Fiannaca J for the fourth review (Director of Public Prosecutions (WA) v Pindan [No 5] [2016] WASC 144) (Pindan [No 5]).  I also adopted her Honour's findings for the purpose of this review.

2. I noted in conducting the second review of the CDO that Jenkins J had ordered an assessment of the respondent's cognitive impairment, his understanding of proceedings under the DSO Act and his ability to give instructions for the purpose of any application made by the Director of Public Prosecutions in 2010.  The results of that assessment were summarised in Pindan [No 1] [50] and following.

3. I also noted that the respondent was subsequently assessed in 2011 by a consultant psychiatrist, Dr Davidson.  She concluded the respondent suffered from cognitive impairment to a significant degree, most likely due to irreversible brain dysfunction.  She considered that the respondent might occasionally experience psychotic symptoms when under stress or using or withdrawing from the use of alcohol or other substances, and that his cognitive impairment was unlikely to abate as it was a chronic problem:  Pindan [No 3] [133]. It is apparent from the subsequent reviews of the CDO and the evidence presented in the fifth review that the respondent's impairment is both profound and entrenched.

4. Dr Wynn Owen has assessed the respondent for each review of the CDO since 2012.  In his report for the fifth review, he adopted the observations and opinions he had expressed in his earlier reports. 

5. Justice McKechnie reproduced in Pindan [No 4] much of Dr Wynn Owen's report prepared in 2015 for the third review of the CDO (the 2015 Report).  Dr Wynn Owen noted in that report that the respondent had been assessed as having a global cognitive deficit, particularly in relation to executive functioning, learning and impulse control.  He presented a high risk of sexual reoffending and his level of intellectual functioning was such that he was unlikely to benefit from psychological interventions, learn from programmes intended to reduce his risk of sexual offending or address his alcohol or other drug use.

6. The use of alcohol was a significant factor in the respondent's history of sexual offending.  The respondent advised Dr Wynn Owen in an interview conducted for the purpose of preparing the 2015 Report that he would consume alcohol regularly if he was released to the community.

7. Dr Wynn Owen reaffirmed the views expressed in the 2015 Report in a report prepared for the fourth review of the CDO.  He considered that the respondent's psychiatric diagnosis, mental state and risk of sexual reoffending were unchanged:  see Pindan [No 5] [35] ‑ [41].

8. The respondent was transferred to the West Kimberly Regional Prison (WKRP) in January 2014 following the second review of the CDO.  Dr Wynn Owen noted in the 2015 Report that the move to WKRP had produced some beneficial effects:  Pindan [No 4] [9]. However, Fiannaca J noted in Pindan [No 5] that there was evidence in the fourth review that the respondent had engaged in sexualised behaviour, including a fixation with females and predatory behaviour towards female staff while in custody at WKRP.  His Honour also identified three matters concerning the future management of the respondent that he anticipated would be addressed between the fourth and fifth reviews based on a management plan developed for the respondent and the evidence presented in the fourth review:

   (a)the provision of a social trainer to deliver an intensive programme of assistance to the respondent;

   (b)accommodation options in the community were to be further explored; and

   (c)arrangements were to be made for the respondent to be reviewed by a movement disorder specialist to determine whether his current anti‑psychotic medication was causing him to experience involuntary facial movements, and if so, whether his medication should be altered.

Psychiatric assessment

1. As previously mentioned, Dr Wynn Owen incorporated the opinions he had expressed in earlier reports in his report for the fifth review.  He noted that the respondent had been reviewed by a psychiatrist on three occasions since the fourth review.  That resulted in a change in the respondent's anti‑psychotic medication - the dosage was reduced with a view to ceasing medication entirely if no psychotic symptoms emerged.  The change in medication was based on the opinion of a psychiatrist, Dr Smith.  He considered that the respondent might not suffer from a chronic psychotic mental illness.

2. Dr Wynn Owen further noted that the respondent did not report any symptoms or exhibit signs of depression, anxiety or psychosis.  The respondent stated that he was 'okay, I'm happy' when asked about his mood.

3. The respondent acknowledged, as he had in the past, that he enjoyed seeing women in the prison.  He also acknowledged that he regularly masturbated.  He shook his head when asked whether he thought there was a link between drinking alcohol and his risk of sexual offending.  He did not respond to questions regarding his risk of reoffending, risk situations and plans to mitigate any risk of sexual reoffending.  The respondent again stated he would drink if released to the community.

4. Dr Wynn Owen considered that the respondent continued to present a high risk of serious sexual offending.  The risk related to the presence of gross cognitive deficits and a lack of self‑awareness with associated impulsivity, minimal planning skills, poor learning capacity and limited understanding of the effect of his actions on others.  Alcohol use remained a significant risk factor.

5. Dr Wynn Owen noted the respondent's communication had improved and his mood was good.  The respondent exhibited fewer facial grimaces and did not chew his clothing during the interview.  Dr Wynn Owen thought the improvements in affect, and the reduction in facial movements, might be explained by the change in the respondent's anti‑psychotic medication.

6. Dr Wynn Owen stated in evidence that he was aware that Dr Fitzclarence, a doctor employed by the Department of Corrective Services, considered that the respondent's facial kinesis was a symptom of anxiety.  However, he disagreed with that view and considered that the observed reduction in the respondent's facial kinesis confirmed his opinion (ts 743 ‑ 744).  He agreed that he had raised a possible link between the respondent's facial movements and his anti‑psychotic medication prior to his review in 2016. 

7. Dr Wynn Owen considered the respondent was more likely to respond to positive reinforcement in his daily management than punitive measures to control his behaviour, such as lock‑downs or restrictions on his movements within the prison.  He also noted the respondent enjoyed listening to music and painting but there were some limitations on his participation in those activities due to the low level of gratuities he received.

8. Dr Wynn Owen agreed that his recommendations in relation to the respondent's accommodation requirements in the community had not changed since his first report in 2011 - that is, the respondent required culturally appropriate accommodation that provided a structured environment and full‑time care and supervision (ts 755 ‑ 756).

Psychological report

1. Dr Yewers provided a psychological report for the purpose of the fifth review.  She had previously provided reports for the second to fourth reviews of the CDO.

2. Dr Yewers merely noted for the purpose of the fifth review that the respondent was repeatedly assessed by the forensic psychological service as being unsuitable for psychological intervention due to his cognitive impairment.  That view was endorsed by Dr Wynn Owen.

3. Accordingly, the role of the forensic psychological service was consultative.  For example, representatives of the service attended at inter‑agency meetings held since the fourth review for the purpose of discussing and reviewing the respondent's management plan.

The community supervision assessment report

1. A community supervision assessment report was provided by officers of the Department of Corrective Services.  The report dealt with the respondent's management in custody at WKRP.

2. The respondent is housed in a single cell at WKRP as he does not meet the criteria for a self‑care custodial environment.  He is subject to a management plan due to his cognitive impairment and lack of daily functioning skills.  The purpose of the plan is to establish a structured and consistent daily routine for the respondent with a view to forming part of any future reintegration plan.  It was apparent from the supervision assessment report that the plan covers all aspects of the respondent's custody at WKRP.

3. According to the report, the respondent requires prompting, guidance and supervision to complete tasks and comply with his daily prison routine.  There has been some improvement over time but he continues to require close supervision to ensure that he attended to his duties within the prison and to his personal hygiene.  A prison officer is allocated daily to instruct the respondent on his prison duties.

4. The respondent was involved in some minor incidents at WKRP.  His continued interest in alcohol and females was noted by prison officers.  For example, he had cut out pictures of females and advertisements for alcohol from magazines and posted the pictures on his cell wall.

5. The Disabilities Services Commission has a role in planning the respondent's management and the National Insurance Scheme was due to start in the Kimberley region in the latter part of 2017.  It was not known whether the respondent would qualify for funding and support through that scheme at the time of the review hearing.

6. Otherwise, the supervision assessment report indicated there were no services or facilities available in the West Kimberley area that could provide the respondent with 24 hour/7 days a week supervised and supported accommodation.  The evidence received in that and earlier reviews plainly establish that it would be necessary for the respondent to be accommodated in a facility that provides full‑time supervision and care if the community is to be adequately protected from the risk of him committing a serious sexual offence.  The evidence also indicated that the respondent's cognitive deficits are sufficiently profound such that he would require close supervision and care to manage daily living in the community.

7. One of the authors of the community supervision assessment report, Ms Darrel Klause, gave evidence concerning the report and the respondent's management in custody.  She is the Acting Team Leader for the Kununurra Community Corrections Centre.  However, Ms Klause only became responsible for the respondent's case shortly prior to the review hearing.  Accordingly, her knowledge of the management of the respondent in custody was limited to reviewing the documents held by the Adult Community Corrections.  She also spoke to Dr Wynn Owen and Dr Yewers.

8. Ms Klause stated that she had reviewed the prison management plan for the respondent but did not have the Department of Corrective Services' behavioural management plan for him.  She did not know if such a plan existed and was unable to advise whether there was any review of the plan in the previous 12 months.

9. Ms Klause stated that she had spoken to several members of the respondent's family.  They were not able to provide appropriate accommodation for the respondent.  Ms Klause was unable to say whether the Department of Corrective Services had any short or long‑term plan for providing accommodation to the respondent.

Conclusion

1. Section 33 of the DSO Act provides for the review of a continuing detention order. The court must rescind the order if it does not find that the person who is subject to the order remains a serious danger to the community. If the court finds that the person remains a serious danger to the community, it must affirm the continuing detention order or rescind the order and make a supervision order. The paramount consideration in determining whether to affirm the continuing detention order or make a supervision order is the need to ensure adequate protection of the community.

2. Section 7 of the DSO Act provides that before a court may find that a person is a serious danger to the community, the court must be satisfied there is an unacceptable risk that the person would commit a serious sexual offence if the person were not subject to a continuing detention order or a supervision order.

3. In refusing to rescind the CDO and affirming the order at the review hearing, I accepted the opinions expressed by Dr Wynn Owen in his report and, in turn, the opinions he expressed in his earlier reports that were incorporated into the report.  Having regard to Dr Wynn Owen's opinions and the other evidence presented in the review, I found that the respondent remained a serious danger to the community - that is, I was satisfied that there was an unacceptable risk that the respondent would commit a serious sexual offence if he was not subjected to a continuing detention order or supervision order.  I further found on all of the evidence presented in the review that the CDO should be affirmed having regard to the need to ensure adequate protection of the community.

4. As Ms Barone rightly observed in her closing submissions, the respondent's prospects of being released to the community are substantially dependent on suitable accommodation being provided for him.  I accepted Dr Wynn Owen's opinion that the community could only be adequately protected from the risk of the respondent committing a serious sexual offence if he was accommodated in a structured environment providing full‑time care and supervision.  Accommodation of that kind in the community is not presently available for the respondent.

5. In Pindan [No 3], I rejected a submission that the court should assume that the executive would provide whatever resources were necessary to ensure the community would be adequately protected if a person was released from custody pursuant to a supervision order.  Accordingly, I declined to make a supervision order at the second review of the CDO on the assumption the executive would provide the type of accommodation described by Dr Wynn Owen if the order was made.  However, I also observed that:

   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 [202].

6. That remained the position at the time of the review.  The respondent is one of a group of persons who are in custody under the DSO Act and whose mental and psychiatric conditions mean that their release to the community is substantially, if not entirely, dependent on the provision of appropriate accommodation - generally, accommodation that provides a highly structured environment with full‑time care and supervision.  Regrettably, accommodation of that kind remains scarce.  It is to be hoped that progress in addressing this resourcing need continues to be made - both for the respondent and for other persons who are in a similar position.