Director of Public Prosecutions (WA) v Sloane
[2015] WASC 381
•9 OCTOBER 2015
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- SLOANE [2015] WASC 381
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 381 | |
| Case No: | DSO:4/2015 | 14 & 15 SEPTEMBER 2015 | |
| Coram: | SIMMONDS J | 9/10/15 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Detention order made | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) ROBERT JOHN SLOANE |
Catchwords: | Criminal law Dangerous Sexual Offenders Act 2006 (WA) Application for div 2 continuing detention order Whether unacceptable risk of committing further serious sexual offences Whether serious danger to the community Whether detention order or supervision order appropriate |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 8, s 3, s 7, s 14, s 17, s 29, s 30, s 37, s 42 Evidence Act 1906 (WA), s 106A |
Case References: | Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 Director of Public Prosecutions (WA) v Misko [2012] WASC 259 Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 Director of Public Prosecutions (WA) v Yates [2014] WASC 136 Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 Italiano v The State of Western Australia [2009] WASCA 116 The State of Western Australia v Latimer [2006] WASC 235 The State of Western Australia v West [2013] WASC 14 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
ROBERT JOHN SLOANE
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for div 2 continuing detention order - Whether unacceptable risk of committing further serious sexual offences - Whether serious danger to the community - Whether detention order or supervision order appropriate
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 8, s 3, s 7, s 14, s 17, s 29, s 30, s 37, s 42
Evidence Act 1906 (WA), s 106A
Result:
Detention order made
Category: B
Representation:
Counsel:
Applicant : Ms K Robinson
Respondent : Mr D J McKenzie
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : David McKenzie Legal Pty Ltd
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Misko [2012] WASC 259
Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions (WA) v Yates [2014] WASC 136
Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v West [2013] WASC 14
- SIMMONDS J:
Introduction
1 The Director of Public Prosecutions (WA) (DPP) has applied for orders, under s 8 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), being orders under s 14 and s 17, in relation to Mr Sloane (the present application). The latter provision is for the choice of order which the Court is required to make if it finds the person in question to be a serious danger to the community within the meaning of s 7.
2 Following the preliminary hearing provided for by DSO Act s 14, Jenkins J delivered an extemporaneous judgment stating that she was satisfied there were reasonable grounds for believing the court might, under s 7(1), find Mr Sloane was a serious danger to the community. Consequent on that finding, Jenkins J made orders for the present hearing, including that Mr Sloane undergo examination by two psychiatrists named by the court for the purposes of preparing reports as required by s 37, to be used at that hearing. Jenkins J also ordered, among other things, that Mr Sloane be remanded in custody until the conclusion of the present hearing and judgment on the application or order under s 17 (the interim detention order).
3 If the court makes a finding that the person in question is, within DSO Act s 7, a serious danger to the community, the choice of order under s 17 is between two. One order is for the detention in custody of the person for an indefinite period for control, care or treatment. This is called a Division 2 continuing detention order (s 3(1); s 17(1)(a)) (detention order). The other order is that, at all times during the period stated in the order when the person is not in custody, that person be subject to conditions the court considers appropriate and states in the order. This is called a supervision order (s 3(1)). It is provided for in s 17(1)(b) (supervision order).
4 If a detention order is the order chosen, the DPP must apply annually for review of the person in question's detention: DSO Act s 29. There is also provision for the person to apply for leave for that person's detention to be reviewed: s 30.
5 By the present application the DPP asks the court to find Mr Sloane a serious danger to the community and to make a detention order in respect of him.
6 In these reasons I first elaborate on the legislative framework for the present hearing, including the law applicable to that framework.
7 Then I describe the evidence before me and the hearings before me, before describing Mr Sloane's background, including his history of offending, focusing on his serious sexual offending within the meaning of the DSO Act, and dealing also with the programmes he has undergone for his sexual offending.
8 Next, I will review the evidence of the two psychiatrists as to Mr Sloane's risk of reoffending, particularly serious sexual offending, and as to his management and treatment needs and how these might be addressed.
9 I will then describe how I have had regard to all of the specific factors to which the DSO Act s 7 requires me to have regard in making my determination as to whether or not Mr Sloane is a serious danger to the community.
10 As I have concluded that Mr Sloane is a serious danger to the community, I will then address the choice I must make between the options in DSO Act s 17(1)(a) and s 17(1)(b) and indicate the choice I would make. The final section of these reasons is a summary of my conclusions and the orders I would make.
11 In view of the length of these reasons, I should indicate now that my conclusion is that I should make a continuing detention order for Mr Sloane.
The legislative framework and the applicable law
12 As I have indicated, the framework has two components. One relates to the making of a finding that an offender is a serious danger to the community, in DSO Act s 7. The other relates to the choice of order the court must make if it so finds, in s 17.
13 DSO Act s 7 is as follows:
7. Serious danger to the community
(1) Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
(2) The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied -
(a) by acceptable and cogent evidence; and
(b) to a high degree of probability.
(3) In deciding whether to find that a person is a serious danger to the community, the court must have regard to -
(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;
(b) any other medical, psychiatric, psychological, or other assessment relating to the person;
(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future;
(d) whether or not there is any pattern of offending behaviour on the part of the person;
(e) any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;
(f) whether or not the person's participation in any rehabilitation program has had a positive effect on the person;
(g) the person's antecedents and criminal record;
(h) the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;
(i) the need to protect members of the community from that risk; and
(j) any other relevant matter.
15 DSO Act s 17 is as follows:
17. Division 2 orders
(1) If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may -
(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.
(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
16 The relevant principles relating to the proper construction and effect of the DSO Act s 7 and s 17 were not in dispute before me. As noted in Director of Public Prosecutions (WA) v Yates [2014] WASC 136 [5] (Martin CJ) they are conveniently set out by Corboy J in The State of Western Australia v West [2013] WASC 14 [52]. There Corboy J refers to a number of authorities, including Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307; Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297; Italiano v The State of Western Australia [2009] WASCA 116; Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312; and The State of Western Australia v Latimer [2006] WASC 235, as follows:
(a) Section 7(1) of the DSO Act provides that before the court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The expression 'serious sexual offence' has the meaning given to that term in s 106A of the Evidence Act 1906 (WA) (s 3 of the DSO Act).
(b) The DPP carries the onus of satisfying the court about that matter and the court must be satisfied by acceptable and cogent evidence and to a high degree of probability. The expression 'high degree of probability' is incapable of further definition. Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof: [DPP v GTR] [28] (Steytler P and Buss JA; and see at [34] for a further elaboration on what the expression means in its application).
(c) In deciding whether to find a person is a serious danger to the community the court must have regard to each of the matters specified in s 7(3) of the DSO Act.
(d) It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence: DPP v GTR [21].
(e) The term 'unacceptable risk' is not defined in the DSO Act. However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made: [Italiano v WA] [4] [Pullin JA] and [46] (Buss JA).
(f) In a passage that was expressly approved in DPP v GTR, Wheeler JA stated in [DPP v Williams] [63]:
'In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.'
(g) The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced: DPP v GTR [97] (Murray AJA).
(h) The court must identify what, if anything, constitutes the risk and factor or factors makes that risk unacceptable and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence: DPP v GTR [34].
(i) The court must make a continuing detention order or a supervision order once it is found that the respondent is a serious danger to the community: Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; 38 WAR 217. The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a pre-disposition to making a continuing detention order. As Hall J observed in [DPP v Decke], '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order' [14].
(j) The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: [WA v Latimer] and Decke [52].
17 There are two further matters of the principles relating to the proper construction and effect of DSO Act s 17 described in DPP v Yates as follows:
Having regard to established principles of statutory construction, there are two anomalies evident in these principles. First, two different expressions in the Act ('an unacceptable risk that … the person would commit a serious sexual offence' and 'serious danger to the community') have been given precisely the same meaning. Second, in s 17 the word 'may' has been construed as 'must', and consequently as conveying a duty to make an order, rather than a discretion. However, those aspects of the construction of the Act have been endorsed by decisions of the Court of Appeal of this State ([DPP v Williams]; [DPP v GTR]), and must be taken to represent the current state of the law. In any event, for the reasons which follow, the differing nuances of meaning which might be given to the relevant provisions of the Act would have no bearing upon the outcome of these proceedings.
In some previous cases, questions have arisen as to whether the Act imposes an obligation upon executive government with respect to the provision of resources relating to the management and treatment of offenders falling within the purview of the Act, and as to the extent to which the court should proceed on the basis of an assumption that those resources will be provided (see for example, Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95; Attorney-General (Qld) v Francis [2006] QCA 324; [2007] 1 Qd R 396; Attorney-General (Qld) v Lawrence [2008] QSC 230; Winters v Attorney-General (NSW) [2008] NSWCA 33; Director of Public Prosecutions (WA) v Pindan [No 2] [2012] WASC 234; Director of Public Prosecutions (WA) v Alvisse [No 6] [2013] WASC 154; Attorney-General (Qld) v Sybenga [2009] QCA 382). There may come a point in time at which the resolution of those issues may be relevant to Mr Yates. However, for the reasons which follow, that point has not yet been reached [6] - [7].
18 I should note that I have arrived at the conclusion I do not have to resolve those issues in relation to the present application. However, I will have some more to say about the second, resources, issue at the end of these reasons.
19 I also note the following matter of principle, from DPP v Williams (Wheeler JA, Le Miere AJA agreeing):
Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2), it would have been necessary for him to have made a continuing detention order [86].
20 It will become apparent from the reasons below that I am not left in doubt as to whether or not a continuing supervision order would adequately protect the community.
Evidence and the hearings before me
21 DSO Act s 42(2) - (4) provides for evidence in an application of the present kind. Those subsections do so as follows:
(2) Before the court makes a decision or order on the hearing of an application it must, if the evidence is admissible -
(a) hear evidence called by the DPP; and
(b) hear evidence given or called by the offender or person subject to the order, if that person elects to give or call evidence.
(3) Except as modified by subsection (4), ordinary rules of evidence apply to evidence given or called under subsection (2).
(4) In making its decision, the court may receive in evidence -
(a) any document relevant to a person's antecedents or criminal record;
(b) anything relevant contained in the official transcript of any proceeding against a person for a serious sexual offence, or contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind.
23 One form was a two volume book of materials for the hearing, tendered into evidence by the DPP by consent as exhibit 1. There was no objection to any of its contents.
24 In addition, the two psychiatrists named in Jenkins J's orders testified, and there was a report from each in exhibit 1.
25 One psychiatrist was Dr Mark Hall. His report was dated 30 August 2015 (exhibit 1.39).
26 The other psychiatrist was Dr Adam Brett. His report was dated 31 August 2015 (exhibit 1.38).
27 Both psychiatrists were consultant psychiatrists with training and experience in forensic psychiatry and had previously provided reports to the courts including this court. No objection to their qualifications or issue with the bases for their opinions was taken at the present hearing.
28 Evidence was also given in the form of testimony and a report by a forensic psychologist, Dr Angela Cooney, who was employed by the Department of Corrective Services (the Department) as a Senior Forensic Psychologist with the Specialist Psychology Service. Her report, entitled 'Proposed Dangerous Sex Offender Management Plan', was dated 24 August 2015 (exhibit 1.40).
29 There was evidence from Dr Cooney of particular relevance to me concerning Mr Sloane's outstanding treatment needs, and how these might be met under a continuing detention order or under a continuing supervision order, as well as certain reservations she expressed in those respects.
30 No objection to Dr Cooney's qualifications or issue with the bases for her opinions was taken at the present hearing.
31 Further, evidence was also given in the form of testimony and a report by Ms Jane Henshall, a Senior Community Corrections Officer employed by the Department. Her report, entitled 'Community Supervision Assessment', was dated 31 August 2015 (exhibit 1.41) and included a set of Proposed Supervision Order Conditions.
32 There was evidence from Ms Henshall of particular relevance to me concerning conditions for a community supervision order that might be made for Mr Sloane.
33 No other witnesses than the four named were called by the DPP. No witnesses were called for Mr Sloane, who did not himself give evidence.
34 In addition to the evidence I have referred to, there was tendered into evidence by consent a record of a police interview with Mr Sloane in 2004 in relation to the investigation of a certain offending (exhibit 2), for me to assess his attitudes at least at that time. However, I understood that in the event no emphasis was placed on the record before me and I have not taken account of it.
35 Further, there was tendered into evidence by consent a schedule for 2016 of the Intensive Violent Offender Treatment Program showing spaces available as at 11 September 2015. As will be seen the utility of Mr Sloane participating in such a programme assumed significance in the evidence before me. I consider that, notwithstanding the some of the submissions put to me for Mr Sloane, exhibit 3 shows that his participation in the programme might be a realistic possibility in the first or second quarter of 2016.
36 Finally, there was tendered into evidence by consent a chain of e-mails concerning the possibility of his accommodation in the community under a community supervision order for Mr Sloane (exhibit 4). As will be seen, the importance of Mr Sloane having such accommodation assumed significance in the evidence before me. I will return to analyse exhibit 4 at the end of these reasons.
Background, including offending behaviour other than serious sexual offending
37 This background as well as the material in the next two sections of these reasons are drawn from exhibit 1 and are not in contest.
38 Mr Sloane was born on the 26 June 1970 in New South Wales. His mother died when he was 4. Thereafter he had intermittent contact with his father. He lived with his grandparents. His grandmother is still alive. He has described her fondly. His father appears still to be alive. However, Mr Sloane appears to have at most only continuing intermittent contact with him.
39 Mr Sloane was made a ward of the state at a young age. He went to a number of boys' homes and foster homes. He reported physical, sexual and emotional abuse in those settings but did not want to talk about those experiences.
40 His schooling ended not long into year 7 after being expelled for violent conduct.
41 Mr Sloane began the use of substances at a young age. He also started to get into trouble with authorities from a young age.
42 Mr Sloane reported that he lived on the streets and was cared for by prostitutes.
43 Mr Sloane's only significant employment appears to have been work in a motor trimming business at the age of 14, which he said he left after being assaulted by his employer and retaliating by using violence. It appears he has survived primarily on the proceeds of crime.
44 Mr Sloane had one relationship of two to three years duration, in his early 20s. A son resulted from the relationship who was placed in the care of Mr Sloane's partner's parents at birth. He has not had any contact with the son since 1998. Mr Sloane reported a large number of other, short-term, relationships characterised by mutual drug use and with a predominantly sexual focus. He admitted to perpetrating domestic violence upon his partners, especially if he believed they were being unfaithful to him.
45 Mr Sloane reported living on the streets of Kings Cross from his early adolescent years. He said that prostitutes would give him money. He may have had a son by a prostitute. There is no indication of any continuing contact he has with that son.
46 Mr Sloane also said that at the age of 14 he was involved in making two pornographic films which he did not perceive at the time as abuse.
47 He said he was introduced to organised crime figures and became a juvenile drug runner. Apparently at some stage he had a daughter, who he reports is currently aged 18 or thereabouts, with whom he talks on the phone occasionally, although other evidence I have indicates he receives updates about the daughter only through speaking to his grandmother.
48 It further appears that his grandmother is the most significant person in his life, notwithstanding that she lives in New South Wales. He has acknowledged having no pro-social connections in the community in this state.
49 There appear to be no relatives Mr Sloane has in the State other than distant cousins whom he has never met. Mr Sloane's grandmother has confirmed she and Mr Sloane's father are both pensioners and would not be able to assist in funding any private accommodation in this state for Mr Sloane.
50 Mr Sloane has reported he had always had a very high sex drive, involving an indiscriminate and impersonal approach to sex, although his libido had reduced significantly in recent years.
51 Mr Sloane has an extensive and significant history of substance abuse. He has used marijuana, alcohol, amphetamines, acid and heroin. He has acknowledged he was more easily provoked when intoxicated, and a number of violent offences he had committed related to his substance use. He has also acknowledged that alcohol and drugs has in general caused him significant problems over the years.
52 However, Mr Sloane considered he had matured during imprisonment and had no wish to use once he was released.
53 There are, however, matters of concern in relation to the risk of his substance use continuing into the present, which I will return to.
54 Mr Sloane has an extensive criminal history. He has stated he has spent 17 years of his life in prison. However, he has had only a limited history of serious sexual offending. I will deal here with his other criminal history.
55 It seems Mr Sloane first appeared before the courts in New South Wales, as a 13-year-old. The criminal record from that State (exhibit 1.2) includes offences of stealing, malicious injury, break, enter and steal, assault, malicious wounding, assault and rob, and firearms offences. He received a number of sentences of imprisonment for a number of these offences.
56 Mr Sloane's first conviction in this state was in December 2001. His convictions in this state include for offences of assault occasioning bodily harm, deprivation of liberty, threats to kill, stealing, breach of bail, resist arrest, possess weapon, threatening words or behaviour, and possess prohibited drug.
57 He has received sentences of immediate imprisonment, of up to 3 years duration, for offences of the first four kinds.
Serious sexual offending
58 Mr Sloane's serious sexual offending is confined to five offences, all committed on or about 25 March 2003 at Perth, on Ms CDP.
59 The offences were all ones of sexual penetration without consent, by engaging in fellatio, cunnilingus or vaginal penetration with his penis, as the case may be. This offending was associated with offences of unlawful detention, unlawful assault and threats to unlawfully kill, committed at the same time and place and on the same person.
60 The body of offending concerned, including the non-sexual offences, was committed while Mr Sloane was on bail for other offences.
61 Ms CDP was a young woman who had been receiving treatment for her drug problem at premises where she met Mr Sloane and from which she went with him into the city. He lured her into a building where she was subjected over an 18 hour period to sexual and physical abuse. The abuse included a threat to kill her, assaulting her by putting his hands around her throat and choking her and punching her to the body.
62 The sentencing judge appears to have accepted her evidence that she had thought he was initially friendly and when she refused his request for sex he turned angry and violent and all the offending occurred.
63 In October 2004, for the entirety of this body of offending, Mr Sloane received a total effective sentence of imprisonment of 10 years' immediate imprisonment. He received a further term of imprisonment in November 2004, made cumulative on this term, for offences committed earlier, between 9 December 2002 and 11 December 2002. None of those offences, comprising assault occasioning bodily harm, deprivation of liberty, threats to kill and indecent assault, was a serious sexual offence. However, I note the following from the sentencing remarks of the sentencing judge in exhibit 1.18.
64 The victim of the offending was a 23-year-old female whom Mr Sloane had met three days previously. The indecent assault was committed by touching the female on the breasts. The offending was precipitated by his rage that she had attempted to leave him. What followed was an act of sexual intercourse which according to the complainant occurred without consent but which the jury by its verdict found to have occurred consensually.
Rehabilitation programmes
65 While he was in custody for the body of offending described in the previous section of these reasons Mr Sloane initially declined to participate in treatment programmes. However, his position changed in 2008. He was assessed as requiring the Cognitive Skills Program, the Intensive Violent Offender Treatment Program, the Intensive Substance Use Program and an intensive Sexual Offender Program. This was later altered to a Sex Offending Deniers Program, in view of his categorical denial of sexual offending.
66 Mr Sloane ultimately completed the Pathways Program (in 2012), the Think First Program (in 2013) and the Sex Offending Deniers Program (also in 2013).
67 The Pathways Program was a structured programme providing treatment for individuals who had a history of offending behaviour and substance abuse problems. Mr Sloane's engagement in the programme was described positively with a number of treatment gains identified. In particular, he was reported by the facilitators of the programme to have displayed a 'considerable shift in his ability to problem solve, set targets for his future, maintain his calm and question his thinking style' (exhibit 1.40 [17]).
68 The Think First Program was aimed at helping individuals acquire, develop and apply a series of problem solving and associated skills that would enable them to manage difficulties in their lives and avoid future reoffending. While his engagement with the programme was initially identified as problematic, overall his engagement was described positively, and it was indicated he had made treatment gains. In particular, he was seen to have made gains in his ability to recognise that problems existed and in self-management, in his ability to identify alternative ways to manage a problem, in his awareness of consequences, in his social perspective - taking and in relation to his impulsivity (exhibit 1.40 [16]).
69 The Sex Offending Deniers Program targeted individuals who had categorically denied committing sexual offences and addressed the evidence-based criminogenic needs of such offenders. The facilitators of the programme reported that Mr Sloane 'met few program objectives, made minimal treatment gains, was observed to gain limited understanding of the factors underlying his offending; did not demonstrate greater acceptance of responsibility for his behaviour'. It was also noted that his risk management strategies appeared to be superficial and it was concluded that he 'presents with continued significant risk factors for both sexual and more general offending'. It was recommended that future intervention address Mr Sloane's anti-social attitudes, his tendency to gravitate towards anti-social peers, his criminal lifestyle and personality factors (exhibit 1.40 [18]).
70 I have no evidence of any other rehabilitation programmes undertaken by Mr Sloane.
The evidence of the two psychiatrists
71 It was not in contest that both Dr Hall and Dr Brett had the qualifications and experience to offer the opinions they did, and those opinions' bases were not challenged.
72 It will be seen that there are no significant differences of opinion between the two psychiatrists.
73 I deal with the evidence of each psychiatrist in relation to the specific matters I identify of particular relevance to Mr Sloane's risk of sexual reoffending, after describing their overall assessments of that risk. I also describe the assessment of each psychiatrist of the possibilities for management of that risk.
74 The sources of information about Mr Sloane on which the two psychiatrists based their respective reports were in each case principally an interview with Mr Sloane; material provided by the Department of Corrective Services comprising the bulk of what became exhibit 1; a meeting attended by the other psychiatrist, by Dr Cooney and by Ms Henshall; medical reports on Mr Sloane; and what became exhibit 1.40.
75 Dr Hall's overall assessment of the risk of Mr Sloane reoffending sexually was that that risk was high without intervention in the form of a continuing detention order or a supervision order (exhibit 1.39 [71]).
76 I consider that Dr Brett's opinion, that Mr Sloane would be a serious danger to the community of committing a serious sexual offence if he were not subject to such an order (exhibit 1.38, Opinion and Recommendations, 1), is to the same effect.
77 Dr Hall was of the opinion that, were Mr Sloane to reoffend sexually, the reoffending scenario would be of the following kind (exhibit 1.39 [63]):
[T]he kind of sexual violence he would be most likely to commit would be that of attempted or actual penetration of an adult female in the context of a relationship however brief. Anger, negative attitudes towards women and a sense of sexual entitlement would be the motivating factors. His victims would be most likely highly traumatised and suffer from anxiety, depression, and problems with trust and intimacy. Historically, Mr Sloane has used more violence than is necessary to facilitate non-consensual sexual act and has also employed threats of further violence. As such, there is a chance that any sexual violence in the future could escalate to serious a life threatening violence. How soon Mr Sloane might engage in sexual violence may depend on whether he relapses to substance use. If he does relapse to substance use, it would most likely be within 12 months of his release. If Mr Sloane is able to abstain from the use of substances for longer than 12 months, and in that time has engaged in substance abuse counselling and has begun to construct a prosocial lifestyle with routine and purpose, then there would be a higher likelihood that he could succeed in the long term and that any future relapses may be brief. The warning signs that might indicate that Mr Sloane's risk is increasing would be those of substance use, a return to an unstable lifestyle, idleness, and association with anti-social peers.
78 In his testimony, Dr Hall said that there was a 'high risk' of relapse in alcohol use (14 September 2015, examination-in-chief, ts 22).
79 For his part, Dr Brett was of the opinion that the 'most likely risk scenario' would be as follows (exhibit 1.38 [176] - [178]):
[A] repeat of previous offending. That is, he would form a casual relationship with a woman, which he would expect to become sexual. The likely victim would be a young woman whom he met casually. Alcohol and drugs are likely to be involved. He would be expecting to have sexual intercourse and he would not expect a refusal. It is likely there would be associated physical violence.
It is likely that the victim would have psychological and physical harm. There is a chance that sexual violence may escalate to serious life-threatening violence. The imminence is difficult to predict and would most likely relate to opportunity. The key warning signs would be intoxication.
His risk appears to be chronic. He has significant risk factors for violent offending and sexual violence could be part of this.
80 The bases for the opinions of the two psychiatrists were in each case principally the use of both actuarial instruments and structured clinical guides. Actuarial instruments are ones using mainly static (historical) risk factors. Structured clinical guides, by contrast with actuarial instruments, use both static and dynamic factors. Both psychiatrists used the same or very similar instruments of both kinds.
81 On the actuarial instrument, the STATIC-99-R, both psychiatrists scored Mr Sloane in the high risk category. Both psychiatrists appeared to allow for the age of Mr Sloane, age being a 'protective' factor as explained by Dr Brett in his testimony (14 September 2015, examination-in-chief, ts 36).
82 On the actuarial instrument of the PCL-R, (PCL - SV, in the case of Dr Brett) Mr Sloane scored highly, indicating he possessed many of the features of psychopathy. This included what Dr Hall referred to as a high score on the anti-social behaviour facet, with people in that range having a varied and persistent anti-social lifestyle with frequent and serious violations of social and legal expectations and standards from an early age (exhibit 1.39 [53]).
83 Dr Brett, for his part indicated that Mr Sloane fulfilled the criteria for 'dissocial personality disorder', which on his testimony (14 September 2015, examination-in-chief, ts 39) is a 'slightly different' disorder from an anti-social disorder.
84 I should particularly note at this point that Dr Hall indicated in his testimony (14 September 2015, examination-in-chief, ts 12) that of the bases for his overall assessment of risk of committing a serious sexual offence the most relevant factor was that Mr Sloane possessed '[a] anti-social personality disorder, impulsivity and a propensity for violence'. I will have occasion to return to the matter of that propensity.
85 Both psychiatrists used the same structured clinical guide, the Risk for Sexual Violence Protocol (RSVP). They reported their conclusions by reference to the heads or domains from the RSVP, focussing on the factors of significance to Mr Sloane within each. Those conclusions were substantially the same in each case.
86 In the domain of sexual violence history, both psychiatrists identified the factor of physical coercion in sexual violence as being significant or of most significance in this domain. This was referred to by Dr Hall in terms that Mr Sloane has made 'threats to kill or harm his victims and has subdued them with physical violence in order to further the commission of the sexual act' (exhibit 1.38 [56]). Dr Brett noted as to Mr Sloane's criminal history that, while he did not have a history of chronic sexual offending, he had a history of chronic violence offences (exhibit 1.38 [94]).
87 In the domain of psychological adjustment, both psychiatrists referred to the significant factors for Mr Sloane as his extreme minimisation or denial of sexual violence, attitudes that supported or condoned sexual violence, problems with self-awareness, problems with stress or coping, and problems resulting from child abuse.
88 As to the factor of extreme minimisation or denial of sexual violence, both psychiatrists, although in their evidence they appeared to use different language, indicated to me that this factor needed to be considered together with the factor of attitudes that supported or condoned sexual violence (exhibit 1.39 [57]; compare 14 September 2015, examination-in-chief of Dr Brett, ts 39). Those attitudes were described by Dr Hall, in similar terms to those used by Dr Brett, as Mr Sloane's perception of women 'as deceitful, manipulative, and exploitative', with him having 'an entrenched notion of inequality between the sexes and a tendency to sexually objectify women' (exhibit 1.39 [57]; compare exhibit 1.38 [111] - [112]).
89 As to the factor of problems with self-awareness, for both psychiatrists this went to Mr Sloane's superficial or poor understanding of the factors contributing to his offending.
90 As to the factor of problems with stress or coping for both psychiatrists this went to Mr Sloane reacting to negative feelings or conflict with violence or substance abuse or both.
91 As to problems resulting from child abuse, both psychiatrists appeared to refer to this in terms of problems in psychosocial adjustment (see in particular exhibit 1.39 [122]; compare exhibit 1.39 [57]).
92 In the domain of mental disorder, both psychiatrists referred to the significant factors for Mr Sloane as psychopathic personality disorder; problems with substance abuse; and violent ideation.
93 I have previously referred to the matters of psychopathic personality disorder and substance abuse for Mr Sloane.
94 As to the matter of violent ideation this was referred to by Dr Hall (in exhibit 1.39 [58]), in terms very similar to those used by Dr Brett (in exhibit 1.39 [137]), as to Mr Sloane achieving 'empowerment and a sense of control through violent ideation, which is also consistent with his historical method of coping and behaving in relationships'.
95 In the domain of social adjustment, both psychiatrists referred to the significant factors for Mr Sloane as problems with intimate relationships; problems with non-intimate relationship, problems with employment, and his history of non-sexual criminality.
96 As to the factor of problems with intimate relationships, both psychiatrists referred to his relationships as having been characterised by 'sexual objectification and mistreatment of his partners', in the terms used by Dr Hall (exhibit 1.39 [59]). I consider Dr Brett, in exhibit 1.38 [142] - [143], to be to a similar effect.
97 As to the factor of problems with non-intimate relationships both psychiatrists appear to have focussed upon his shortage of family supports and his anti-social associations.
98 As to the factor of problems with employment, both psychiatrists referred to his lack of a significant history of employment. Dr Brett, however, particularly referred to Mr Sloane having been assessed recently in a 'Individual Management Plan' as an 'excellent worker with a healthy work ethic' (exhibit 1.38 [149]).
99 As to the factor of non-sexual criminality, both psychiatrists referred to that history as 'extensive' (exhibit 1.39 [59]; exhibit 1.38 [151]), Dr Hall adding that it 'essentially comprises his profession and the basis of his identity' (exhibit 1.39 [59]).
100 In the domain of manageability, both psychiatrists referred to the significant factors for Mr Sloane as problems with planning, problems with treatment, and problems with supervision.
101 As to the factor of problems with planning, both psychiatrists referred to his lack of clear pro-social life plans.
102 As to the factor of problems with treatment, both psychiatrists referred to the weak gains Mr Sloane made from treatment and his generally poor insight into the extent of his needs.
103 Dr Hall's report also refers to his lacking empathy, having no coping skills beyond substance abuse and violence and having not to date undertaken a Violent Offender Treatment Program (exhibit 1.39 [60]). Although there is no similar language in Dr Brett's report, I consider Dr Hall's views to be consistent with those expressed by Dr Brett (see in particular exhibit 1.38 [161]).
104 As to the factor of problems with supervision, both psychiatrists referred to a history of institutional rule violations, which appears to be a reference to a number of charges he has faced while in prison, some 28, between 1 January 2003 and 27 May 2015 (exhibit 1.4).
105 Both psychiatrists also referred to problems of escaping legal custody and breaching legal orders including referring to breaches of or offending while under bail (exhibit 1.39 [60]; exhibit 1.38 [164] - [165]).
106 Both psychiatrists also referred to a number of other considerations. Dr Hall referred to the reliability of the assessment of Mr Sloane as 'degraded by the extent to which [he] engages an impression management'. Both Dr Hall and Dr Brett referred to the 'unclear' effects of the impact of coronary heart disease from which he was suffering (exhibit 1.39 [61]; exhibit 1.38 [168]).
107 Both psychiatrists also gave evidence as to the treatment and manageability in other respects of Mr Sloane's risk of sexual reoffending. Both appeared to give evidence to the same or a very similar effect as to the required treatments and management strategies in other respects for him. There was some difference however, as to their evidence as to the effectiveness of such treatment and management in other respects in a community setting, that is, under a community supervision order. However, I consider the difference is not significant for my purposes.
108 Both psychiatrists were of the opinion that the required treatments and management strategies in other respects comprised principally regular supervision, particularly in relation to substance use; counselling to address Mr Sloane's attitudes and adjustment to living in the open community in a prosocial manner; counselling or a structured programme (which I took as a reference to a programme such as the Violent Offender Treatment Program I have previously referred to) to address his violent offender treatment needs; and 'stable accommodation' and some form of work or productive activity to structure his day (exhibit 1.39 [67] - [68]; exhibit 1.38, Opinion and Recommendations 4, 5 and 7).
109 As to the effectiveness of such required treatments and management strategies in other respects in a community setting, Dr Hall in his testimony appeared to say that a regime to assist Mr Sloane to structure his day so as to properly address boredom, stress and influence from negative peers would be difficult to provide for in a community supervision order, but not impossible (14 September 2015, cross-examination, ts 32).
110 Further, Dr Hall indicated in his testimony that it was of significance that Mr Sloane's propensity for violent offending had not yet been explicitly addressed in any programme Mr Sloane had undergone. In Dr Hall's opinion this significance lay in Mr Sloane's sexual offending having to be viewed in the context of his violent offending (14 September 2015, examination-in-chief, ts 12). Dr Hall further testified that he was unsure how Mr Sloane would respond to a programme explicitly addressing his propensity for violent offending (ts 13).
111 For his part, Dr Brett testified that Mr Sloane's sexual offending was facilitated by his violent offending (14 September 2015, cross-examination, ts 39).
112 Dr Brett's testimony was also that, while Mr Sloane could be managed in the community in theory, in practice it would not be possible at least unless stable accommodation for him was found (14 September 2015, examination-in chief, ts 35).
113 I turn now to the first of the two components of the DSO Act I identified earlier.
Whether or not I find Mr Sloane to be a 'serious danger to the community'
Introduction
114 I address this question in the detail below. It was not pressed strongly for Mr Sloane that I should arrive at a negative answer. However, there was no concession that he was not a 'serious danger to the community'; and my particular attention was drawn to the matters below of whether or not Mr Sloane had a propensity to commit serious sexual offences and whether or not he had a pattern of committing such offences. In any event, I must make that determination having regard to the matters listed in DSO Act s 7(3).
115 It will also become apparent that a number of matters to which I must have regard also go, in my view, to the other component under the DSO Act that I identified, that of the choice between the options in DSO Act s 17(1)(a) and (b).
116 For the purposes of the present question, I adopt the structure used by McKechnie J in Director of Public Prosecutions (WA) v Misko [2012] WASC 259. That structure follows DSO Act s 7(3).
(a) the psychiatric reports, including cooperation in the examinations
117 I have previously reviewed the evidence of the two psychiatrists, Dr Hall and Dr Brett and in so doing considered both their reports and their testimony.
118 I note there was no indication in either the reports or their testimony that Mr Sloane failed to cooperate sufficiently with them in the examination of him.
(b) any other medical, psychiatric, psychological or other assessments
119 There was only one such assessment addressed in any detail in evidence and submission before me. It was that of the psychologist, Dr Cooney.
120 The principal sources of information on which Dr Cooney based her report (exhibit 1.40) were of the same sorts as those for the reports of the two psychiatrists.
121 No objection to Dr Cooney's qualifications or issue with the bases for her opinions was taken at the present hearing.
122 Dr Cooney's opinions as to Mr Sloane's treatment needs were in terms of his lack of skills to develop and maintain healthy intimate relationships; his hostility to women; his lack of ways to develop relationships with positive social supports; the possibilities of him engaging in impulsive or violent action; and his lack of concern or regard for the rights of others (exhibit 1.40 [26] - [37]).
123 Dr Cooney's opinion was that, if Mr Sloane were released under a community supervision order, there should be the following matters focused on: stable accommodation with practical assistance in developing his capacity for practical living and ensuring his health issues were monitored and treated; substance abuse counselling; encouragement to engage in, and other assistance in exploring, ways to develop a prosocial support network; and psychological counselling to address his unmet treatment needs, with particular mention made, given the lack of group programmes targeting violent behaviour in the community, of having his sexual and violent offence treatment needs addressed by individual counselling (exhibit 1.40 [40]).
124 I consider these opinions to be wholly consistent with the opinions of the two psychiatrists, one of whom (Dr Brett) records his agreement with Dr Cooney's report as to its description of Mr Sloane's psychological treatment needs (exhibit 1.38, Opinion and Recommendations 7).
125 I consider the following passages from Dr Cooney's report of particular relevance to me, one concerning what is referred to as his negative emotionality, and the other concerning interventions aimed specifically at his sexual offending.
126 As to Mr Sloane's negative emotionality, Dr Cooney referred to, among other things, the following (exhibit 1.40 [33]):
[H]is hostile presentation toward those completing his assessments for Court and him declining any intervention initially. While this overt hostility appears to have dissipated over time, Mr Sloane continues to express some level of negative emotionality associated with his conviction and sentence. This hostility may escalate should he be made subject to a Continuing Supervision Order, which may impact on his behaviour (such as his compliance with supervision requirements or conditions, and willingness to work constructively with the professionals involved in his case).
127 As to interventions aimed specifically at his sexual offending, Dr Cooney says this (exhibit 1.40 [39]):
[I]t is unclear the extent to which Mr Sloane would be open to receiving such intervention should he be required to remain in custody, given his stance of denial and previous reaction to receiving a custodial sentence based on this. In addition, his denial of his sexual offending may impact on his motivation to engage meaningfully in psychological counselling to address these issues, which may impact on his treatment outcomes in any intervention aimed specifically at his sexual offending.
128 Reading that last comment as a whole, I conclude that Dr Cooney is referring to such an intervention either in a custodial or in a community supervision setting.
129 I further note the testimony of Dr Cooney that for Mr Sloane the 'core problem' is violence, with his sexual offending being an extension of his violent behaviour; and that core problem was an issue to be addressed (14 September 2015, examination-in-chief, ts 55). In that regard, I note from Dr Cooney's report the recommendation that Mr Sloane be reassessed for his suitability for inclusion in a Violent Offender Treatment Program were he to be kept in custody (exhibit 1.40 [38]b). That programme is, as I understand it, only available in custody. I consider this evidence reinforces Dr Hall's evidence as to Mr Sloane's unmet treatment needs for Mr Sloane's propensity for violent offending and is consistent with the emphasis both psychiatrists placed on the matter of Mr Sloane's violent offending.
(c) propensity
130 I take the view that the legislature in the DSO Act has used the word 'propensity' in its ordinary meaning in the context of the criminal law, as described in DPP v GTR (Murray AJA), as follows:
In my view 'propensity' in this context means what it ordinarily means in the context of the criminal law. It means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder [178].
131 None of Dr Hall, Dr Brett or Dr Cooney identify Mr Sloane as having a propensity to commit serious sexual offences. Further, below I note my finding that there is no pattern for Mr Sloane of serious sexual offending. To those extents there is no support for his having a propensity for such offending.
132 However, as I have previously explained there is substantial evidence that Mr Sloane has a propensity to commit violent offences.
133 Further, there is the evidence of Dr Hall, Dr Brett and Dr Cooney to which I have referred to the effect that his sexual offending had connections with his violent offending.
134 It might then be said that the evidence as to his propensity for violent offending is information indicating Mr Sloane has a propensity to commit serious sexual offences in the future, in conditions like those described by the reoffending scenarios I have referred to.
135 At the same time, I am unable to conclude that I should find that Mr Sloane has a propensity to commit serious sexual offences.
136 However, on the information I have described, there does not seem to me to be a large significance to that conclusion for my purposes.
(d) pattern
137 It was not contended before me that there was a pattern of serious sexual offending behaviour. I would not find any such pattern.
138 However, I conclude there is a pattern of violent offending behaviour. Further, on the material referred to in the previous section of these reasons, this is of significant relevance to Mr Sloane's risk of serious sexual offending.
(e) & (f) efforts to address the cause or causes of behaviour including participation in any rehabilitation programme and its effect
139 On the evidence I have reviewed as to Mr Sloane's efforts to address the cause or causes of his behaviour, including his participation in the rehabilitation programmes I have described and their effect, including the evaluations of the two psychiatrists as to problems with his treatment, I conclude that at best the record here is weak.
140 I do note, however, that, while Mr Sloane had a number of incidents and charges covering his present period of imprisonment, a matter to which I have referred, it also appears, from Dr Cooney's report (exhibit 1.40 [21]), that
his involvement in incidents [has] gradually become more infrequent as his period of imprisonment has increased … [O]verall, it appears that Mr Sloane has become increasingly compliant through his custodial placement, demonstrating an ability to control his behaviour and maintain positive employment.
141 At the same time, however, I conclude from the evidence of the two psychiatrists as well is that of Dr Cooney that there is a significant distance still to go, most particularly in relation to the address of Mr Sloane's propensity for violent offending, a matter of significance to me by virtue of the connection of such a propensity with the risk of his committing serious sexual offences.
(g) antecedents and criminal record
142 I have previously described these.
(h) risk of a serious sexual offence
143 I consider that this 'risk', in DSO Act s 7(3)(h) refers to the likelihood of such an offence being committed, rather than the nature of the particular serious sexual offence of concern, let alone the unacceptability of the risk. I note the distinction between those aspects of 'risk' in Italiano v WA [4], [46] (Buss JA), referred to in WA v West [52](e) above. See also DPP v GTR [27] (Steytler P & Buss JA).
144 I consider that risk for Mr Sloane to be a significant one, on the evidence of the two psychiatrists as I have analysed that evidence above.
(i) need to protect the community from that risk
145 In my view, having regard to the level of risk I have identified, and the reoffending scenario I have described, there is a strong need to protect the community from that risk.
(j) any other relevant matter
146 I do not consider any other relevant matter to have been pressed upon me that I have not taken account of in relation to the previous items.
147 Nor does any other relevant matter present itself to me.
Conclusion: whether I find Mr Sloane is a serious danger to the community
148 In accordance with DPP v GTR [34] (Steytler P & Buss JA), I must identify what it is that constitutes the risk and makes the risk unacceptable, and I must consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence.
149 I have identified what constitutes the risk in this case, and I have noted, in respect of the need to protect the community against that risk, the matters of the level of the risk and the forms of serious sexual reoffending that risk involves.
150 In my view, that level and those forms are the factors which constitute the risk and make it unacceptable.
151 Further, I consider that those factors have been proved to a high degree of probability by acceptable and cogent evidence.
152 It follows I have concluded that Mr Sloane is a serious danger to the community in the terms of DSO Act s 7.
The choice of order to make: the applicable law
153 As I previously indicated as to what I drew from State v West, I should choose the order that is least invasive or destructive of Mr Sloane's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: WA v Latimer [49] (Murray J), where a continuing detention order was made.
154 I should add from WA v Latimer the following, which is accepted in DPP v Decke [15] (Hall J), where a supervision order was made:
The [DSO] Act prescribes no overall limit of time after which the prisoner must be released, and so it can be seen that a continuing detention order, when made, has the potential to last indefinitely, for a period well beyond the term of any sentence of imprisonment which might be imposed as punishment upon the commission of a serious sexual offence by the offender. It is having regard to that such matters that I express the opinion that the scheme of the Act requires the Court to do no more than is necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection for the community [24].
155 Of course, the paramount consideration is the need to ensure the protection of the community (DSO Act s 17(2)).
156 Thus, as I have previously indicated I drew from DPP v Williams [86] (Wheeler JA, Le Miere AJA agreeing), if I cannot be satisfied that the community is adequately protected by a supervision order then I must make a detention order. I note again, however, I consider I do not need to invoke this principle in this case.
Making the choice
157 In making the choice, I consider I should draw upon the evidence of the two psychiatrists as to the manageability of the risk I have identified while also considering the evidence of Dr Cooney and of Ms Henshall as to the possibilities for management of the risk in continuing detention and under a supervision order.
158 On the evidence of the two psychiatrists, I am of the view that a detention order would ensure adequate protection of the community during the term of the order.
159 As to whether a continuing supervision order would ensure adequate protection of the community, I note again what appears from the evidence of both psychiatrists and of the psychologist to be what I consider all three to have identified as the core or most relevant issue for Mr Sloane, his propensity to violence and the relationship of that propensity to his risk of serious sexual offending, which I have considered in the context of his substance use and the possibilities for relapse in relation to such use.
160 I note as well the difficulty for Mr Sloane of the matter of what is also stressed in the evidence of the two psychiatrists and the psychologist, of stable accommodation for him were he to be released under a continuing supervision order.
161 This appears to be on evidence before me to be the only practical matter of concern in relation to the treatment and management in other respects of the risk of serious sexual reoffending by Mr Sloane.
162 As to the practicalities generally of a continuing supervision order, I note the evidence of Ms Henshall. Her report (exhibit 1.41) includes Proposed Supervision Order Conditions which appear to me to address all of the treatment and other management needs I have identified from the evidence of the two psychiatrists and the psychologist.
163 The Proposed Supervision Order Conditions include reporting and monitoring conditions, including electronic monitoring and the possibility of visits for monitoring purposes to the residence where the offender would be that is prescribed in the order; compliance with directed psychological monitoring/management arrangements and with the requirements of programmes designed to address offending behaviour or risk of serious sexual offending as directed; exchange of information between persons or agencies involved in the implementation supervision of the order, including confidential information; restrictions on contact with victims; curfew arrangements; compliance with medication directions; and prevention of high risk situations, including not to possess, consume or use alcohol and subjection to urinalysis.
164 The Proposed Supervision Order Conditions include also provision for Mr Sloane to take up residence at a stipulated address and spend each night at that address or at a different address only if that different address is approved in advance by the community corrections officer assigned to Mr Sloane.
165 Ms Henshall's testimony was that her enquiries indicated Mr Sloane could not expect accommodation support from his relations and that Ms Henshall's other enquiries both in relation to accommodation sourced through the Department and from a number of other sources had indicated there was no accommodation available for Mr Sloane at least in the short term.
166 Such evidence is regrettably not uncommon in proceedings of the present kind. Counsel for the respondent in his closing submissions appeared to concede that there was indeed no evidence of any definite prospect of the availability of stable accommodation presently.
167 When the testimony of Ms Henshall had been given, inquiries were made which resulted in exhibit 4, to which I have previously referred.
168 Exhibit 4 includes a report by an officer of the Department indicating that what appears to be the only accommodation in prospect could not become available until at least six months pre-release had elapsed. That period was to permit the accommodation provider to develop a rapport with Mr Sloane on the basis of which to assess his support needs and to develop an individual re-integration and transition support plan for him.
169 It was not altogether apparent to me why no such engagement between the accommodation provider and Mr Sloane had taken place. It appeared from exhibit 4 that Mr Sloane had only engaged with the support provider on one occasion, which was described as not sufficient for the accommodation provider's purposes.
170 I consider it to be unfortunate that, for the purposes of a hearing of the present kind, there do not appear to be more possibilities than those I have just described. However, it is not clear to me that there is a resource shortfall problem established thereby. In that regard, I note that there appears to be a need for joint action by an offender and the provider referred to. I am not in a position to evaluate whether or not there are sufficient resources from the executive to facilitate such action.
171 On this basis I consider I do not have to address the two matters raised in Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95 [59] - [125] (Corboy J). I note, however, his Honour's conclusion, among other conclusions, as follows:
The court is required and empowered to impose conditions when making a supervision order. However, the court is constrained in formulating the conditions by the provisions of the DSO Act - the extent to which the Act empowers the court to impose conditions that have fiscal consequences for the executive. The court is required to consider what is reasonable and practicable in settling the terms of a supervision order, rather than assume that the executive will provide any and whatever resources may be required to fulfil the conditions imposed. That constraint would also be relevant to determining the content and performance of any duty that might be owed by the executive under the DSO Act[125](f).
172 In my view of all of the evidence to which I have referred in the present section of these reasons, considered with my findings in relation to Mr Sloane's treatment needs in relation to his propensity for violent offending when that is considered with the connection of that propensity to his risk of serious sexual offending, the adequate protection of the community may only be achieved by my choosing a continuing detention order.
173 I should add that it may be that further experience with Mr Sloane, particularly treatment for his propensity for violent reoffending and the development of a rapport with the accommodation provider of the kind I have referred to, might be such that a court could in the future make a different choice.
174 As I indicated at the outset of these reason there are provisions in the DSO Act not only with respect to required annual review of detention under a continuing detention order (see s 29) but also the possibility of application by Mr Sloane at any time for review. However, in the latter case the application may only be made with the leave of the court, before granting which the court must be satisfied that 'exceptional circumstances' exist (see s 30).
175 The accumulation and evaluation of the further experience I have referred to, and an assessment whether or not special exceptional circumstances exist, are, however, for another time.
Conclusion on choice and orders
176 I am satisfied that Mr Sloane is a serious danger to the community within the meaning of DSO Act s 7(1), having been so satisfied by the DPP by evidence to the standard as described in s 7(2).
177 I am also satisfied that meeting the need to ensure the adequate protection of the community would only be possible if a detention order were the choice of order made under DSO Act s 17(1).
178 Accordingly, I would make a detention order for Mr Sloane.
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