Director of Public Prosecutions (WA) v Unwin - [2011] WASC 11

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- UNWIN [2011] WASC 11

CORAM: BLAXELL J

HEARD: 29 NOVEMBER 2010

DELIVERED : 13 JANUARY 2011

FILE NO/S: MCS 48 of 2010

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
MARK ROBERT UNWIN
Respondent

Catchwords:

Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for a continuing detention order or supervision order - Whether the respondent is a serious danger to the community - The appropriate order - Turns on own facts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Finding that the respondent is a serious danger to the community
Order that respondent be detained in custody for an indefinite term for control, care and treatment

Category: B

Representation:

Counsel:

Applicant: Mr P D Yovich
Respondent: Mr M R Hall

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Hall & Hall Lawyers

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

Director of Public Prosecutions v GTR [2008] WASCA 197
Director of Public Prosecutions v Williams [2007] WASCA 206
TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109

BLAXELL J: This is an application by the Director of Public Prosecutions (WA) (the DPP) under s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) for a continuing detention order or supervision order in respect of the respondent (Mr Unwin).
Mr Unwin has a significant record of serious sexual offending, and up until 21 October 2010 he was serving a sentence of 28 months' imprisonment for an offence of aggravated indecent assault. Prior to the expiration of that sentence McKechnie J made an order under s 14(2)(b) of the Act that Mr Unwin remain in custody pending the determination of the present application.
McKechnie J also ordered that Mr Unwin undergo examinations by Dr Bryan Tanney and Dr Sam Febbo, and the reports of those psychiatrists were tendered at the final hearing of the application. Also tendered were three volumes of materials detailing Mr Unwin's background, history of offending, psychological assessments, and treatment within the prison system. (The numbered references in the following reasons for decision relate to pages in these materials). I have also heard oral evidence from the two psychiatrists, from the psychologist Sarah Ballantyne, and from a senior community corrections officer, Ms Jennifer Benpasciuto.
There are no substantial issues as to the primary facts, and the essential question is whether the evidence establishes that Mr Unwin is a 'serious danger to the community' within the meaning of s 7 of the Act. If so, I must determine which of a continuing detention order or a supervision order should be made.

Mr Unwin's background circumstances

Mr Unwin was born on 24 June 1979 to parents who separated at about the time of his birth. His father then went to live in Queensland and Mr Unwin remained with his mother who remarried when he was one year old.
Mr Unwin was slow in achieving his developmental milestones and an assessment in 1981 (when he was 32 months of age) showed him to be functioning at 23.4 months which was considered a borderline level of intellect. Consequently he became eligible for assistance from the Disability Services Commission from the age of three.
At 3 years of age Mr Unwin also became a ward of the State for a period of 18 months as a result of physical abuse by his mother and step‑father. He was temporarily removed from the family home and placed in the care of his maternal grandmother for a few months. He then returned home to his mother and step‑father where he remained until the age of nine.
It is clear that during those early years Mr Unwin was an unhappy and neglected child living in an unstable home environment. He also experienced further physical abuse from time to time up until 1987 when his mother separated from his step‑father. During 1988 and 1989 there were periods when he was in foster care, and up until the age of 12 he sometimes lived with his father in Queensland (as a result of a custody order by the Family Court).
Because of these unhappy circumstances, and from the age of eight, Mr Unwin tended to spend as much time as possible away from home. Increasingly, he lived on the streets and ceased attending school. By the age of 12 he was sniffing glue and toluene, regularly spending nights in Northbridge, and also engaging in age inappropriate sexual behaviour.
As a result of these behavioural problems Mr Unwin was declared an uncontrolled child and made a ward of the State in May 1992. He was given temporary placements in hostels or with foster parents, but all attempts to make him change his ways were unsuccessful. In this regard, Mr Unwin regularly absconded from his foster placements, and often was not seen again for days. He continued to inhale solvents, and in December 1992 (when he was aged 13) he was the victim of unlawful and indecent dealings by an adult.
During the first half of 1994 (when Mr Unwin was 14 ‑ 15 years of age) he was in a sexual relationship with and living with a 23‑year‑old male in a flat at Mosman Park. That other male was subsequently convicted of a number offences of sexually penetrating and indecently dealing with Mr Unwin, and was sentenced to substantial terms of imprisonment. The offender was sentenced on the basis that at all material times he had known Mr Unwin to be 'slightly mentally impaired'.
Mr Unwin's status as a ward of the State ceased in 1995 when he became 16 years of age. From that time on (when not subject to detention or imprisonment) he sometimes stayed with his mother or at hostels, but more often lived on the streets. Although he did not have any substantial or alcohol or drug habits other than his habitual inhalation of solvents, this latter problem was aggravated by the fact that his mother supplied him with glue every fortnight (in the misguided belief that this improved his behaviour and kept him 'under control' (246)). While living on the streets Mr Unwin was regularly prostituting himself with adult males in return for money or cigarettes.
In 1996, when Mr Unwin was 17 years of age, he was briefly admitted to Heathcote Hospital after an attempted suicide. While 'high on glue' he had held a knife to his own throat during an argument with his mother's partner. He was then taken to a general practitioner, but later ran in front of a car in an attempt to kill himself.
As a result of all of his difficulties Mr Unwin has not received a proper education. After only one day at high school he ran away and never returned. Furthermore, he has had no employment experience outside the prison system.

Mr Unwin's history of offending

Mr Unwin commenced offending at the age of 13 and was dealt with by the Children's Court for two burglaries. At the age of 14 he was dealt with again for three burglaries and for causing criminal damage by fire (all of which offences were committed by Mr Unwin while under the influence of 'glue').
Mr Unwin's first episode of sexual offending occurred at the age of 15 when he appeared in the Children's Court on two counts of indecently dealing with an 11‑year‑old boy. Mr Unwin and the younger boy had been residing in different rooms at the same hostel, and he had committed acts of genital fondling and simulated anal sex without consent.
When Mr Unwin was 16 years of age he committed four minor offences of a non‑sexual nature followed by a more serious offence of indecent assault. The victim was a woman unknown to him who was walking down a suburban street, and he assaulted her by grabbing her by the breasts. This was the first of a number of offences involving a similar modus operandi.
During July 1976 when Mr Unwin was 17 years of age he committed three indecent assaults over the space of two weeks on three separate female victims. Each offence was committed on a train on which Mr Unwin and the victim were both travelling at the time. The first and third offences each occurred in essentially the same way. While seated next to the victim and immediately before getting off the train Mr Unwin reached across and grabbed her hard on the breast. The offence against the second victim varied only to the extent that Mr Unwin also touched her on the arm and leg before grabbing her by the breast and then touching her again on the leg. As he ran out of the train he also stole the second victim's bag of groceries.
Less than four months later Mr Unwin committed more serious offences of indecent assault and deprivation of liberty against a 16‑year‑old girl who had been travelling on a train from Perth to Midland. At 3.47 pm on 2 November 1996 Mr Unwin got on the train and sat down in a vacant seat next to the victim. After attempting to start a conversation he touched her around her clothing and played with her necklace. The victim tried to ignore him but he followed her when she got off the train at Maylands. He then grabbed her by the wrist with his left hand, put his right hand under her shirt and grabbed her right breast. When she tried to get away there was a violent struggle and he restrained her around the waist. He also ripped her shirt but she was able to struggle free and run off.
Mr Unwin committed a further offence of indecent assault at about 8.30 pm that same day at Midland railway station after engaging a family group, including a 13‑year‑old girl, in conversation. While she was laying down on a bench seat he placed his hand under her jumper and rubbed her on the breast. Mr Unwin was seen to do this by the victim's brother and uncle who chased him off. He was then apprehended by railway security officers.
Mr Unwin was ultimately sentenced for these offences in the Children's Court on 3 June 1997. By that time he had also committed offences of attempted stealing, stealing, and stealing with violence. These further offences were committed while he was on bail on the previous matters. The stealing with violence was committed against a 19‑year‑old female victim on 17 April 1997. He approached her after she had parked her car in the Subiaco railway station car park and while she was still seated in the driver's seat. He opened the driver's door, said that he wanted to go for a drive, and tried to climb in and sit on top of her. When she pushed him away he punched her on the nose with his closed fist causing her nose to bleed. Mr Unwin then tried to grab the victim's purse and keys. There was a struggle for the purse but he was able to break away and run off with it.
When Mr Unwin was sentenced for these matters in the Children's Court he received sentences of detention for the first time. It was also the last time that he was to appear in the Children's Court.
Mr Unwin's first offence as an adult was an indecent assault committed on 10 October 1997 (when he was 18 years of age). After obtaining a haircut at a hair salon he had an argument with the female attendant about paying for it. In the course of the argument he grabbed her twice around the neck. He then grabbed her breasts with both hands and twisted and squeezed them hard. He also kicked and punched the victim. He later appeared in the Magistrates Court and was sentenced to a suspended term of 6 months' imprisonment.
Approximately one year later there was a significant escalation in Mr Unwin's offending. On 21 October 1998 he was at Perth railway station where he met a 17‑year‑old girl whom he had previously met on the streets. She accompanied him on a train to Armadale for the purpose of smoking some cannabis. While they were walking away together from the Armadale railway station he put his hand on her breast and she objected to this. He then put his hand on her leg near her vagina and she pushed it away. A short time later Mr Unwin pushed and pinned the girl down onto a retaining wall while lying on top of her. When she began to scream he put his hand over her mouth.
Mr Unwin then pulled the girls top down, exposed her breasts and started biting them. One of the bites was particularly severe and caused bodily harm. He also exposed his penis and forced the girl to place it in her mouth. Mr Unwin then masturbated himself and the girl was able to run away to a nearby hotel to get help.
As a result of this incident Mr Unwin appeared in the District Court on 14 April 1999 and was convicted of aggravated indecent assault, aggravated sexual penetration without consent, and threatening to injure. He was breached in respect of the previously suspended term of 6 months' imprisonment, and also convicted of an unrelated burglary. He received sentences totalling 4 years 6 months' immediate imprisonment and was made eligible for parole.
Mr Unwin was released to parole on 28 July 2000, and less than three weeks later offended very seriously once again. While at Daglish train station on 16 August 2000 he approached and attempted to befriend a 21‑year‑old female. He suddenly grabbed at her breasts through her clothing, and during the struggle that followed pulled her top down. He then bit her on the nipple of her left breast and said 'All I want is some pussy'. He also punched her several times in the face before she broke free and ran off.
Mr Unwin then chased after the young woman, threw her against a wall, and kneed her in the face three times which caused her nose to bleed profusely. She ran off again and he continued to chase her, grabbed her, and put his hand over her mouth to stop her from screaming. When she ran off to a car park he followed her, but she was able to escape by flagging down a passing motorist. As a result of the incident the young woman suffered a broken nose, as well as cuts and bruising to her breasts, face and body.
On the same date, approximately half an hour later, Mr Unwin approached a 27‑year‑old woman walking along Railway Parade, Leederville. After commencing a conversation with her he grabbed her breasts with both hands and said 'Do you want some of this, do you like this?' The woman was able to fend him off and run away.
Following these two incidents Mr Unwin was convicted in the Magistrates Court of offences of indecent assault, aggravated indecent assault, and assault occasioning bodily harm. On 11 October 2000 he was sentenced to a total of 3 years' imprisonment and made eligible for parole.
Mr Unwin was released to parole on 23 December 2004. On 28 February 2005 he was convicted of minor offences of disorderly conduct and resisting arrest, for which he received fines. On 8 May 2005 he committed an offence of armed robbery when he stole $484 by threatening staff at a gelati store with a screwdriver and forcing them to empty the till. On 1 September 2005 he was convicted of this offence in the Supreme Court and sentenced to 3 years' imprisonment with parole.
However, Mr Unwin was not released to parole and he served the full sentence. Approximately five weeks after his release from prison he committed a further serious offence of unlawful and indecent assault. The victim was a 22‑year‑old female Korean student who was in Perth on a working holiday.
This last offence occurred at approximately 6.30 am on 15 June 2008 while the victim was walking along Adelaide Terrace. Mr Unwin followed her and tried to engage her in conversation. The young woman kept walking and as she passed under a hoarding at the front of a construction site he grabbed her and tried to push her to the ground. After a struggle, she fell down and Mr Unwin ended up on top of her. He rubbed her breasts on the outside of her clothing and also pressed his knees onto her to keep her on the ground. He then removed his penis from his trousers and asked her to suck it. When she refused he forced her to lay on her stomach, put his hand inside her pants and assaulted her in the vaginal area.
While the victim continued to struggle Mr Unwin kissed her with his tongue inside her mouth. He then said 'I've never seen Asian tits', lifted up her top, pulled down her bra, and bit and sucked her on the left breast. As a result the victim received bruising and bite marks on the breast.
While the victim was still on the ground Mr Unwin stood up, masturbated in front of her, and then walked off. However, he remained in the vicinity, and when his distressed victim walked along Adelaide Terrace towards St George's Terrace he continued to follow her all the way to Barrack Street. The victim then obtained assistance from three roadside council workers.
On 31 October 2008 Mr Unwin was convicted in the District Court of unlawful and indecent assault, sentenced to 2 years 4 months' imprisonment, and made eligible for parole. He went on to serve the full sentence which expired on 30 September 2010. Since then he has remained in custody under an order made under s 14(2)(b) of the Act.

The assessments of Mr Unwin and his behaviour while in detention or in prison

Mr Unwin was first admitted to Rangeview Remand Centre in December 1994 when he was 15 years of age. In May 1997 when he was 17 years of age and serving a sentence of detention, he was interviewed by a clinical psychologist. The psychologist reported that he was 'one of the most difficult and disadvantaged clients I have had to deal with amongst the juvenile justice population'. She considered him as being at high risk of re‑offending for the following reasons:
a)his limited cognitive capacity and severely chronic substance misuse
b)his minimal understanding of appropriate sexual behaviour
c)his limited understanding of safe sexual practices
d)his poor comprehension of the consequences of his inappropriate sexual behaviour
e)he has little opportunity for appropriate sexual interaction
f)he has limited family support
g)he is socially isolated and has basically no peer group apart from transient relations with those he meets on the streets and
h)he has no educational or employment interests and thus large expanses of unoccupied time in which to roam aimlessly and sniff glue (241)
An accompanying specialist's report from the Sex Offender Treatment Unit, assessed Mr Unwin as unsuitable for any then current programmes because of his minimisation and denial of responsibility for his offending behaviour (249). On 10 June 1997, a report from a juvenile justice officer to the Supervised Release Review Board recommended that Mr Unwin not be released. This was because of Mr Unwin's stated intention to continue using solvents, and the correlation between this habit and his offending behaviour (300).
When Mr Unwin was released into the community on 20 July 1997 he was subject to a conditional release order with conditions that he reside with his mother, and receive support from the Disability Services Commission in the form of a recreational mentor for five hours per week, and a social trainer for 15 hours per week. It was hoped that these measures would encourage Mr Unwin to develop life skills and responsible behaviours.
However, these hopes were not fulfilled and on 10 October 1997 Mr Unwin committed the indecent assault on the hairdressing assistant. Following his sentence for that offence, Mr Unwin continued to be subject to the juvenile conditional release order as well as a suspended term of adult imprisonment. During that period it was initially thought that Mr Unwin's inhalant abuse had 'dramatically declined to an almost non‑existent level' and that his progress under supervision was 'satisfactory' (315 ‑ 317).
However, in October 1998 Mr Unwin re‑offended, and entered the adult prison system. During his remand in custody he was examined by a psychologist, a psychiatrist, and also assessed by a 'forensic case management team'. The psychologist considered Mr Unwin to be of borderline intelligence which meant that he was 'nearly retarded but not quite' (466). It was the psychiatrist's opinion that 'he just makes it into the category of fitness to plead' (471). According to the specialist from the forensic case management team Mr Unwin required more than usual protection within the prison system because of his 'limited understanding of relationships, sexuality and his rights to safety and to choose with whom he has sex (477).

While Mr Unwin was serving his subsequent sentence of 4½ years' imprisonment he was reviewed by another psychiatrist, Dr John Kemp. In Dr Kemp's opinion Mr Unwin was socially inept and subject to borderline intellectual functioning (494).
During early 2000 Mr Unwin participated in nine two hour sessions of an intellectual disability sex offender treatment programme held at Riverbank Prison. The treatment completion report stated that he had made several gains from the programme including a better understanding of the issue of consent. The report also stated:
Mr Unwin was able to outline many of the effects of sexual abuse on victims. He displayed anger when he talked about sexual abuse of children and displayed victim empathy. However, he appeared to believe that sexual assault against adult females was acceptable. Mr Unwin was able to relate his own abusive past to his offending behaviour and stated that he offended because he wanted someone to feel the way he did. At times, Mr Unwin attributed the cause of his offending to intoxicating substances. Mr Unwin is now aware that his offending behaviour is motivated by revenge. This increased understanding is considered a significant therapeutic gain (500).
Mr Unwin was released to parole in July, but in October 2000 received sentences totalling 3 years' imprisonment for offences including the indecent assault at Daglish train station. Prior to sentence he was assessed by the psychiatrist Dr Ananth Pullela who reported that:
From a psychiatric point of view, Mr Unwin presents with no evidence of any treatable psychiatric disorder per se. He presents with borderline intellectual functioning, polydrug abuse/dependence and an antisocial personality disorder. Mr Unwin is likely to reoffend in future. It is my view that Mr Unwin has limited understanding of the issues of his offending behaviour and has limited comprehension abilities to foresee the consequences of his actions. People with an intellectual disability such as Mr Unwin, tend to be impulsive and likely to reoffend, more so if Mr Unwin continues to abuse solvents or any other illicit substances. In addition, Mr Unwin has limited coping mechanisms and vocational skills for him to remain, at least at this point in time, trouble free in the community (546).
For the purposes of sentencing Mr Unwin was also assessed by the psychologist Leisa Van Der Zanden. According to Ms Van Der Zanden Mr Unwin showed no victim empathy and instead described his offending as 'quite funny actually'. He asserted that the sexual abuse he himself suffered as a child was a contributing factor because he could 'take it out on other people'. He also stated that when using glue he wants to 'feel others' skin' (551).
Over the following four years in prison Mr Unwin was regularly interviewed or assessed by various psychologists. The reports from these psychologists indicated the following:
-Mr Unwin had admitted that between his release from prison on 28 July 2000 and the offences on 16 August 2000 he had been inhaling glue every day (557).
-Mr Unwin realised that all of his offending of a sexual nature related to women and their breasts. He could make some connection between this and his lack of nurturing during his early childhood. Accordingly he had made some headway in understanding that his motivation for offending was his 'deep seated anger with his mother and her lack of ability to care for him appropriately' (566).
-However Mr Unwin had also said that he had been motivated to commit the offences as a result of his involvement in a 'devil worshiping' sect (557, 574). He stated that it was his intention to reoffend in a similar manner upon release (558, 574, 588).
-At least two of the psychologists considered that Mr Unwin's level of intellectual functioning was higher than what had been previously thought (566, 592).
While in prison between 2001 and 2004 Mr Unwin participated in a number of brief 'interventions' including the Legal and Social Awareness Programme, and the Male Group (Substance Use Programme). He cooperated in these interventions and 'showed some understanding of the programme concepts' (612). He also participated in two further cognitively impaired sexual offender programmes in 2001 and 2003 as well as in individual counselling sessions to address his sexual offending behaviour. The outcome of these interventions was that:
He showed a basic understanding of the short term effects of victims of sexual abuse, yet had difficulty appreciating the potential long term effects (613).
All psychologists who assessed Mr Unwin during this period considered that he was at high risk of re‑offending upon release. Some considered that that risk was moderately high, whereas others considered it to be extremely high. Accordingly, when Mr Unwin was released from prison on 23 December 2004 there were conditions of his parole that he attend a sex offender maintenance programme and psychological counselling.
On 9 March 2005 Mr Unwin's parole was suspended and he was returned to prison. According to a report of that date he had gained little from his sex offender maintenance programme, but had regularly attended weekly sessions of individual counselling. However, he had failed to attend for urine analysis, was living on the streets and using solvents. Mr Unwin was also 'highly stressed' and had himself requested suspension of his parole.
It is not clear from the papers when Mr Unwin was re‑released on parole, but it is self‑evident that he did not last very long in the community before committing the armed robbery at the Gelati store on 8 May 2005. (He later admitted that he committed that offence so that he would be returned to prison). On 1 September 2005 he was sentenced to a term of 3 years' imprisonment with parole.
Mr Unwin went on to serve that term in full, and over the following three years did not participate in any significant programmes which might have addressed his offending behaviour. He was assessed as unsuitable for release on parole partly because of his lack of remorse, his 'blasé and deriding manner', and his statements that he had 'already planned his next offence' (724). Accordingly, he was considered to be a significant risk to the community (725).
Mr Unwin was released from prison on 8 May 2008 and committed the indecent assault against the young female Korean student on 15 June 2008. He committed this offence notwithstanding his homosexual preferences, and that he had been 'getting plenty of sex' during the intervening period (748). When assessed by the psychiatrist Dr Mark Hall for the purpose of sentence, Mr Unwin openly stated that 'incarceration was not a deterrent to his offending'. He also lacked empathy and had no remorse for his victim (751). Dr Hall considered him to be at high risk of re‑offending (754).
Mr Unwin was also assessed by the forensic psychologist Julie Hasson for the purposes of sentence. Mr Unwin told Ms Hasson that he had deliberately committed a sexual offence because this would ensure that he would be remanded in custody and receive a prison term. He wished to be incarcerated because 'he had been living on the streets and it was winter and he was cold' (758). Ms Hasson observed in her report:
His sexual offending has continued unabated and previous Court sanctions appear to have achieved little. His offending appears to be escalating. Impulse control appears to be a major challenge for Mr Unwin. He has little insight into the impact his actions have on his victims.
His offending behaviour appears to be characterised by explosive angry outbursts predominately directed toward women and appears to be related in part to his own victimisation issues, early childhood trauma and impoverished attachment and nurturing, substance misuse and disturbed sexuality (759 - 760).
Ms Hasson also observed that Mr Unwin was unmoved and unconcerned about his offending behaviour, indicating that his actions were largely ego‑syntonic and not a cause of personal distress or anxiety, and therefore did not result in feelings of guilt or remorse (760).
On 3 November 2008 Mr Unwin was sentenced to 2 years 4 months' imprisonment (backdated to 22 June 2008). Although he was eligible for parole, he himself requested that he be denied parole (795). When assessed for his suitability for participation in further sexual offender treatment programmes he stated that he did not know why he committed sexual offences against females given his preference for sex with males. He also minimised his sexual offending by stating that 'his offences are always quick, and the victims would get over the offences straightaway' (791).
During Mr Unwin's most recent period of imprisonment his only significant programme participation was in the 'Moving on from Dependencies Programme'. This programme involved 120 hours of sessions at Casuarina Prison between March and May 2009 and focussed on the factors that had contributed to his substance abuse and offending. On completion of the programme Mr Unwin was considered to have made 'some gains' in understanding the impact of his offending on others (798).
Although recommended for participation in an intensive sexual offender treatment programme there was no available vacancy in any such programme prior to the expiration of Mr Unwin's sentence (800).

The reports by the court appointed psychiatrists

Dr S D Febbo conducted five hours of interviews with Mr Unwin and also reviewed all of the relevant documentary materials. Significantly, Mr Unwin admitted that he had been sniffing glue at the time of his most recent offence, and that 'when I am on the solvents, I spin out on breasts'. He also said that he was aware of the relationship between 'sniffing too much' and his preoccupation with breasts, and that this occurred 'maybe once every four weeks' (865 ‑ 866).
In the course of the interviews Mr Unwin said that he experienced auditory and visual hallucinations, even at times when not using substances. He also gave a history of intermittent suicidal ideation. Based on the history obtained from the interviews and from all of the materials, Dr Febbo considered the following factors to be important in understanding Mr Unwin's presentation and level of risk:
•First, Mr Unwin's childhood was marked by physical abuse, extreme and prolonged sexual abuse, pathological family dynamics including an ambivalent relationship with his mother, and extreme early behavioural disturbances. There is evidence of a conduct disorder in the context of this chaotic childhood.
•Stemming, at least in part, from this chaotic background, Mr Unwin has gone on to develop considerable personality pathology with both an antisocial and borderline personality disorder. In fact, Mr Unwin's personality pathology is in keeping with the presence of psychopathy.
•Mr Unwin reported a long history of solvent abuse/dependence. This abuse is pervasive and entrenched and one does not gain the impression that Mr Unwin has addressed (or indeed that he is at a point that he can address) this issue.
•Mr Unwin's history is unreliable. I note that earlier he was diagnosed with mental retardation. In my opinion this diagnosis is questionable. It follows that the history Mr Unwin provides in relation to, for example, the presence or absence of psychotic symptoms and the extent of inappropriate sexual fantasies remains of questionable validity.
•Mr Unwin appears to be ambivalent about release. A number of his needs are met in custody and not in the community. He reports having offended in order to be placed in custody and he claims to have become 'institutionalised' with any release simply a 'bonus'.
•Mr Unwin currently finds himself without any meaningful support and with no concrete plans in relation to accommodation.
•There is evidence to suggest sexual deviancy and, in my opinion, Mr Unwin is likely to fulfil the diagnostic requirements for a paraphilia. On this point I note the concern that has been raised in relation to sexual sadistic fantasies and the possible preoccupation with Asian women (884).
Dr Febbo also applied a number of 'risk assessment tools' in an endeavour to predict the risk of Mr Unwin re‑offending. These tools fall into two categories being 'actuarial' instruments and 'structured professional judgement'. The actuarial instruments comprise the tools known as 'STATIC 99' and 'PCL‑R' which are based on static and unchangeable risk factors. The 'structured professional judgement' tools applied by Dr Febbo were those known as 'HCR‑20' and 'RSVP'. These tools have regard to both static factors and dynamic factors, and result in assessments that are in large part based upon clinical judgement.
Mr Unwin's total score on the STATIC 99 placed him in the high risk category. Individuals in this category, as a group, have a statistical 39% chance of sexually re‑offending within a five year period. The result from the PCL‑R showed overall symptoms of psychopathic personality disorder which placed Mr Unwin within the 91st percentile of a pooled sample of 5,408 male offenders. He was also in the 57th percentile in respect of interpersonal and affective features of psychopathy, and in the 96th percentile on the social deviance scale (877).
The application of the HCR‑20 tool resulted in an assessment by Dr Febbo that 'Mr Unwin's final risk judgement is high'. The application of the RSVP required an assessment by Dr Febbo of a number of risk factors associated with Mr Unwin's history of sexual violence, psychological adjustment, and manageability. In Dr Febbo's opinion, 19 out of a total of 22 possible risk factors were present (878 ‑ 883).
As a result of these various assessment tools Dr Febbo identified Mr Unwin as being at high risk of further sexual offending following his release. In Dr Febbo's opinion, the management of that risk required a consideration of the following strategies:
1.Mr Unwin needs more assertive treatment of his sexual offending. Whilst there may be factors that do not make Mr Unwin an optimal candidate for the Intensive Sex Offender Treatment Program (for example, psychopathy and anger directed towards child sex offenders) I see no reason why he should be excluded from this program.
To Mr Unwin's credit he has expressed a desire to undertake the Intensive SOTP at Casuarina Prison and he accepts a delay in release until this program can be completed.
2.Consideration should be given to further individual psychotherapeutic work, particularly prior to and following participation in the above program.
The history suggests that there are a number of unresolved background issues including symptoms falling within the category of post traumatic stress disorder related to childhood abuse, and anger, particularly directed against women.
3.Further work needs to be done to address the solvent abuse. Again this can be commenced in custody but continued after release. In my view, it would be appropriate for Mr Unwin to be assessed as to his suitability for a residential rehabilitation facility following release.
4.If Mr Unwin is unsuitable for a residential substance abuse program then he will require assistance in alternate accommodation.
5.In my opinion, notwithstanding the concerns about the reliability of the history, considering Mr Unwin's reported psychotic symptoms, he requires psychotropic medication, including antipsychotic medication, into the medium and long‑term.
6.Considering the length of time Mr Unwin has been in custody it is likely that there are limited social and life‑skills. He would benefit from some form of resocialisation prior to release. If resources are available mentoring for significant periods over the course of a week should be considered following release.
7.Mr Unwin will require regular monitoring through the Department or Corrective Services following release. Considering the documentation reviewed, it may well be appropriate to limit Mr Unwin's contact with Asian women, and for this to be made part of any further supervision order.
8.Mr Unwin gave me a history suggesting a very much diminished sexual drive. However, this is not consistent with aspects of the documentation I reviewed. If this issue can be clarified then it may well be appropriate to consider antilibidinal medication (885 ‑886).
Mr Unwin did not cooperate in Dr Bryan Tanney's assessment, and abruptly terminated each of the interviews that had been arranged. Accordingly, Dr Tanney's assessment is in large part based upon a review of the relevant documentary materials.
Dr Tanney applied the STATIC 99 and RSVP assessment tools in an attempt to measure the risk of Mr Unwin re‑offending. The STATIC 99 produced a score of 10 out of 13 which indicated a high risk rating for recidivism of sexual or violent offending. In Dr Tanney's opinion the application of the RSPV established the presence of at least 16 of the possible 22 risk factors. Those risk factors were in five clusters which Dr Tanney summarised as follows:
From Cluster A and item 11, there is an established pattern of deviant, sexual offensive behaviour from an early age. There are realistic concerns about underlying sexually sadistic motivations. The offending has evolved to being more frequent, more overtly focused on satisfying sexual needs, and more physically coercive with both threats and violent behaviours.
All of the remaining clusters indicate or reflect lifelong and severe impairments of his inner psychological processes.
Cluster B deficits involve overall and sexual maladjustment with the latter readily linked to the inner psychological difficulties. His impairments are deeply entrenched. Their origins can clearly be traced to his distorted and conflicted childhood development experiences. Deeply buried themes of rejection and abandonment are almost invulnerable to modification as he has identified the survival strategies of street life as the orienting framework for his adult life experiences.
In Cluster C, the maladaptive coping through substance abuse and the two components of antisocial lifestyle and impaired capacity for meaningful interpersonal attachments that reflect his 'learned psychopath' personality are the behaviours that result from the Cluster B deficits. Similarly, the likely diagnosis of chronic Post Traumatic Stress Disorder can clearly be related to the deficient, distorted family environment and the experiences of victimization. Although not formally identified in cluster C. item 13, the additional limitation of borderline intellect restricted the possibilities and options that shaped his character and continues to adversely impact his self-awareness and ability to manage life stressors.
In Cluster D, there is social maladjustment in all life domains related to interpersonal and social relationships. Again, this reflects the pervasive impact of childhood adversity and reinforces a fundamental or core difficulty in his social and emotional role functioning. His awareness of the value of work and his solid employment record in custody represent a potential building block for rehabilitation. Otherwise, the social roles and caring interpersonal relationships that afford strong external protection against distorted inner psychological processes are almost entirely absent for Mr. Unwin.
Cluster E offers little optimism for the future likelihood of utilizing available resources to deter further sexual offending. Additionally, the resources that he could access have been deemed unacceptable by him. There is again a potential building block for rehabilitation in his adequate response to supervision and to strongly supportive external constraints on his behaviour. It does appear that there is little deterrent effect from external sanction and punishment respecting his sexual offending (811).

As a third assessment tool, Dr Tanney utilised an adaption of the framework underlying one of the standard instruments (Sexual Violence Risk ‑ SVR) which could be applied to intellectually disabled sexual offenders. His assessment using this instrument identified nine factors which were deemed likely to increase Mr Unwin's risk of sexually offending.
In Dr Tanney's opinion the chronocity and the complex nature of Mr Unwin's psychological issues made them highly resistant to treatment. Furthermore, he had only limited cognitive and impaired emotional resources to address them (813). His serious sexual offending was the outcome of 'an interacting matrix of longstanding deficits, damaging life experiences, and triggering or precipitating contexts' including intoxication (814). Accordingly, Dr Tanney considers that 'episodes of sexual violent re‑offending with physical aggression against young females appears inevitable, if specifically unpredictable, as a simple consequence of exposure/opportunity' (814).
In Dr Tanney's opinion any release of Mr Unwin into the community would almost certainly lead in a relatively short time to further serious sexual offending (819). In this regard, he considers that the resources available for the delivery and enforcement of directed management are insufficient 'to reduce the likelihood of Mr Unwin sexually re‑offending in the community to a manageable level' (820). In summary, Dr Tanney's conclusions are as follows:
1.This report has made effort to meet the purpose of section 37 of the DSO Act 2006, but the scientific underpinnings to satisfy the standard of predicting with high probability the likelihood of serious sexual re-offending by any offender are incomplete at this time. Three instruments derived from actuarial, guided clinical risk appraisal and directed clinical interview frameworks were completed. Their prediction of re-offending likelihood reflects the consideration of both static and dynamic (modifiable) aspects of his risk.
2.Considering all of these measures, Mr. Unwin is at HIGH RISK of serious sexual re-offending against young adult females, within the next five years or sooner should no further intervention have taken place. An idiosyncratic analysis of his offending pathway using general behavioural principles also concluded that there is strong risk of serious sexual re-offending.
3.The serious sexual offending has evolved to include physical violence and may involve elements of sexual sadism. Serious sexual re-offending is most likely to be opportunistic with stranger victims at the actual event, but a very consistent risk scenario is apparent. Without very significant change in Mr Unwin, there is little expectation that it will abate in frequency or severity.
4.The matrix of origins for his offending behaviour encompasses remote (intellect and emotional limitations), distal (victimization and sexual identity) and proximal (stress management and substance abuse) elements with many interactions and reinforcings among them. The treatment processes for each of these issues individually are difficult, lengthy and notably resistant to treatment.
The pattern, number and chronicity of these dynamic risk factors leads to pessimism about the likelihood of resolving any or all of them.
Dynamic risk elements in the social environment that might afford some protection are minimal.
5.Mr. Unwin has virtually no insight into the severity of the risk factors and exceptional resistance to exploring the psychological deficits that underlie his sexual offending. He has made scarce or minimal progress in addressing these issues during four separate treatment programs. He has little commitment or motivation to forestall or manage further sexual offending.
6.There are considerable indications of social breakdown and institutionalization. His commitment to any program intended to bolster internal and external social protective factors that might afford protection to the community from his further offending is highly questionable.
7.Further group based treatment would be anti-therapeutic at this time. A lengthy (minimum one year) trial of intensive, individualized counselinq with a male therapist experienced in working with chronic PTSD due to sexual abuse and victimization is warranted. Significant expertise and a willingness to commit to a lengthy therapeutic engagement will be required. Progress should be monitored by DCS DSO Unit.
8.Following consultation with Community Corrections and the DCS DSO Unit, risk management recommendations for a Community Supervision Order have been constructed. The main strategies in the near term are considerable positive support and structure, and prohibiting any substance abuse. Individual counseling and participation in general and specific programs to develop appropriate social skills will require to be ongoing for a number of years. The community resources required to invest in such a program are unlikely to be available for the intensity and duration required. Mr Unwin's enduring commitment to such an investment is highly questionable and breaches should be consequenced immediately by suspension of the Community Supervision Order. Such a program of directed management is HIGHLY UNLIKELY to accomplish effective risk management in the community at this time.
9.Risk management in the community will require monitoring and enforcement for a minimum of ten (10) years (822 ‑ 823).

The law to be applied

Under s 17 of the Act I may make a continuing detention order or a supervision order in respect of Mr Unwin if I find him to be a 'serious danger to the community'. Before I can make that finding, s 7(1) requires that I be satisfied that there is an unacceptable risk that if not subject to a continuing detention order or supervision order, he would commit a serious sexual offence. 'Serious sexual offence' has the same meaning as in the Evidence Act 1906 (WA) and refers to offences of that description which carry a maximum penalty of imprisonment for seven or more years.
In Director of Public Prosecutions v Williams [2007] WASCA 206, the Court of Appeal held at [63] that:
[A]n 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.
Accordingly, my determination whether or not there is an 'unacceptable risk' in respect of Mr Unwin involves a balancing exercise which (amongst other things) has regard to the nature of the risk and the likelihood of it coming to fruition, on the one hand; and on the other hand, the serious consequences for him if an order is made (Director of Public Prosecutions v GTR [2008] WASCA 197 [27].
Section 7(2) of the Act places an onus on the DPP to satisfy me of the requirement in s 7(1) by acceptable and cogent evidence, and to a high degree of probability. The words 'high degree of probability' are incapable of further definition but import a standard which is more than a finding on the balance of probabilities, but less than one by way of proof beyond reasonable doubt (GTR [28]). In the end, I must identify the factors said to constitute the risk and which make that risk unacceptable, and then consider whether or not those factors have been proved to a high degree of probability by acceptable and cogent evidence (GTR [34]).
In deciding whether Mr Unwin is a serious danger to the community, I must have specific regard to the matters listed in s 7(3). Those matters include the reports prepared by the court‑appointed psychiatrists containing the assessments of risk required by s 37(2). The weight to be given to each of those psychiatric assessments is entirely for me to determine. Ordinarily, they should be given significant weight, but if a particular assessment fails to withstand scrutiny, or is based upon mistaken factual assumptions, I am free to give it little weight (GTR [57]). I should also bear in mind that:
As well as having difficulties with accuracy, predictions of risk may be seen as providing a veil of science over what is essentially a social and moral decision about the kind of offender who creates the greatest fear within the community. Asking mental health professionals to assess the risk of future harm shifts the burden of deciding what to do with such offenders from the community to clinicians whose primary role lies within the medical model of treatment, rather than within the criminal justice model of punishment and community protection.
(From a paper prepared by the Sentencing Advisory Council referred to by Callaway AP in TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109 in comments which were approved by the majority in GTR [60] ‑ [62].
If in the end I do find that Mr Unwin is a serious danger to the community, I have no discretion to refuse to make an order (Williams [68] ‑ [72] and GTR [49]. In determining which of a continuing detention order or a supervision order should be made, I must adopt the least restrictive alternative which is compatible with the protection of the public (Williams [79]).

Whether Mr Unwin is a serious danger to the community

As I have already noted, the primary facts are common ground. Based upon those facts, and on the undisputed evidence before me generally, I make the following further findings in relation to the specific matters I am required to consider under s 7(3):
(a)Drs Febbo and Tanney have each carried out a very thorough and careful assessment of Mr Unwin as required by s 37 of the Act. In my opinion, their assessments are highly credible and should be given full weight in my determination of the issue under s 7(1).
(b)Those assessments are also consistent with all of the previous psychological and psychiatric assessments of Mr Unwin throughout the history of his detention and imprisonment. Those previous assessments from a wide variety of sources assist me in concluding that the current assessments by the two court‑appointed psychiatrists are highly reliable.
(c)The information generally from all of the materials before me shows that Mr Unwin has had a high propensity to commit serious sexual offences during the short periods when he has been out of prison and in the community. The causes of this offending remain unaddressed, and the only reasonable conclusion is that Mr Unwin still has the propensity to commit similar serious sexual offences in the future. In this regard it is also significant that Mr Unwin has stated on a number of occasions that he intends to re‑offend in the future.
(d)There has been a very clear and escalating pattern in Mr Unwin's offending behaviour. All of his sexual offences have been triggered by a combination of his habitual inhalation of solvents, and his obsession with women's breasts. (He himself admitted when he 'sniffs glue' he 'spins out' on women's breasts). It was for this reason that he commenced to offend at the age of 16 and 17 years by opportunistically grabbing at women's breasts through their clothing, and typically while on trains.
This pattern of offending then escalated in seriousness when he started to follow women for the purpose of grabbing at their breasts inside their clothing. He also developed a propensity for biting women on their breasts and committing acts of gratuitous violence including punching in the face. By the age of 19 he had also committed an offence of sexual penetration without consent.
It is a significant feature of the pattern of Mr Unwin's offences that they occur opportunistically, impulsively, in public places, and usually in broad daylight. He shows no fear of apprehension or punishment for what he does. On the contrary, a desire to return to prison is sometimes a contributing factor in what he does.
(e) and
(f)During Mr Unwin's time in prison he attended four treatment programmes which were specifically designed to address the causes of his sexual offending. The evidence shows that he was usually ambivalent in his attitudes towards these programmes, and that any gains he made were very limited. In this regard, he continues to have very little insight into the impact of the offences on his victims and he has no real empathy for their plight. Because of his dysfunctional thinking he regards his offences as in some way a form of retribution for the sexual abuse that he experienced as a child.
(g)The causes of Mr Unwin's offending are to be found in his dysfunctional upbringing and his very damaging experiences as a child. Consequently, he did not have any normal family relationships, home life, friendships, or schooling. His focus of existence was his life on the streets and his principal activities were prostitution and sniffing glue. He is now 31 years of age and has spent the great bulk of his adult life in prison. He has no social structure or support in the community, and (as his criminal record shows) he cannot survive very long outside prison without re‑offending.
(h) and
(i)The evidence, including the assessments of the court‑appointed psychiatrists, establishes to my satisfaction that there is a very high risk that Mr Unwin will commit a serious sexual offence if not subject to a continuing detention order or a supervision order. The likely victims of such offending will be young women unknown to Mr Unwin with whom he might happen to come into contact after sniffing glue. In committing a serious sexual offence in such circumstances Mr Unwin would not be deterred by the prospect of apprehension and punishment. There is a clear need to protect such members of the community from that risk.
I must now determine whether or not the risk of Mr Unwin committing a serious sexual offence is an 'unacceptable' one within the meaning of s 7(1). Having regard to the likelihood of him offending, the type of offence he is likely to commit, as well as the consequences for him of the finding that I am about to make, I am satisfied that an unacceptable risk exists. In this regard, and notwithstanding that Mr Unwin has been punished for his past offending, I am satisfied that the risk of him re‑offending is so unacceptable that the protection of the public requires that he be subject to continuing control or detention. I am satisfied of these matters to a high degree of probability and on the basis of the very 'acceptable and cogent' evidence that I have outlined.
Accordingly, I make the finding pursuant to s 7 of the Act that Mr Unwin is a serious danger to the community.

Whether there should be a continuing detention order or a supervision order

The evidence also satisfies me that the present risk of Mr Unwin's future re‑offending is so high that a supervision order cannot provide adequate protection to the public. In this regard, I am unable to envisage any conditions of a supervision order short of round the clock, seven days a week monitoring, which would reduce the risk to an acceptable level. I have come to this conclusion in light of the same considerations that I have referred to in finding that he is a serious danger to the community.
Notwithstanding the adverse impact on Mr Unwin of a continuing detention order, I consider that it would be unreasonable to expect the State to provide the resources necessary for round the clock supervision. There are currently no systems in place which could provide for his secure accommodation overnight, and the shiftwork necessary to provide for round the clock supervision would require participation by at least three full‑time personnel.
Regrettably therefore, the only appropriate order is that Mr Unwin be detained in custody for an indefinite term for control, care and treatment.